text:
    STATE of Missouri, Respondent, v. Raymond YOUNG, Jr., Appellant.
    No. KCD 29481.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.

      William A. Mallory, Butcher & Cline, Columbia, for appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Raymond Young, Jr., was convicted of assault with intent to maim with malice aforethought. Section 559.180, RSMo 1969. The court fixed his punishment under the Second Offender Act at imprisonment for four years.

On this appeal Young contends the evidence did not show an intent to maim, did not show premeditation and forethought and did not show the pistol, as used, was likely to produce death or great bodily harm. Affirmed.

Fred Johnson was on duty as a garage attendant at the Tiger Hotel in Columbia in April, 1976. About 2:00 p.m. Johnson noticed his wife and an unidentified girl walk past the garage. Shortly after Johnson observed Young drive by the garage in a Cadillac. A few minutes later Young drove into the garage accompanied by Johnson’s wife and an unidentified girl. Young informed Johnson that Johnson’s wife wanted a divorce. Johnson told Young his wife knew where to contact him if she wanted a divorce. Johnson feared trouble and called his employer to ask him to come to the garage.

After some conversation, with Johnson’s wife some distance away, Young walked toward Johnson. As he approached Young put a black glove on his right hand. When Young was close enough to Johnson to reach him, he shoved Johnson off balance. Young then drew a pistol and cocked it. He then struck Johnson on the head with the pistol butt. The first blow of the pistol was sufficient to knock Johnson back against the car and Young then struck him on the head with the pistol butt at least twice more. After striking the blows with the pistol butt, Young again cocked the pistol and told Johnson if he told anyone about the assault he (Young) had some “soldiers” that would get him.

Johnson spent a few minutes trying to get his balance and was finally able to stagger into the hotel lobby to obtain help. He left a trail of blood from the garage to the lobby and when he reached the lobby his head was covered with blood. Four stitches were required to close one of the head wounds and other head wounds required treatment as well.

In his first point Young argues the evidence was insufficient to show he had an intent to maim Johnson. Young seems to indicate that because he opted to strike Johnson with the pistol butt instead of shooting him there is an absence of an intent to maim.

In State v. Wraggs, 496 S.W.2d 38, 40[4, 5] (Mo.App.1973) the court held intent to maim is equated with intent to commit great bodily harm. In State v. Woody, 406 S.W.2d 659, 661[5-7] (Mo.1966) the court held the jury could consider the nature of the weapon used, the manner of using it, the results of its use and all the related circumstances giving rise to the incident as a basis upon which to find an intent to maim or do great bodily harm. Here the jury was fully justified in finding Young had the intent to maim or do great bodily harm when he struck Johnson on the head three times with the pistol butt. The fact that he chose to beat Johnson with the butt of the pistol instead of firing the weapon does not show an absence of an intent to do great bodily harm. It is a matter of common knowledge that striking a person on the head with a pistol butt can cause death or great bodily harm. Here the evidence was sufficient to show this element of the crime.

Young next asserts the assault was spontaneous, without premeditation and without forethought. Again, there is no merit in this contention. The evidence showed Young advanced on Johnson and as he did so he put on a black glove. “ ‘Aforethought’ means thought of beforehand, for any length of time, however short.” State v. Wraggs at 40[1-3]. The fact that he drew a pistol, cocked it and then decided to strike instead of firing was sufficient to enable the jury to find premeditation and forethought.

Instruction No. 5 was in the form of MAI-CR 6.22(b). Young contends there was no evidence to support Paragraph Second which submitted “that the pistol was likely, as used, to produce death or great bodily harm.”

This contention has been answered by what has already been said. The evidence that Young struck Johnson in the head with the pistol butt three times with sufficient force to throw him off balance, bloody his head and cause a wound which required four stitches to close was sufficient to enable the jury to find that the pistol, as used, was likely to cause death or great bodily harm, the fact that Johnson was not more seriously injured does not militate against a finding that the pistol when used in the manner shown here was capable of producing death or great bodily harm.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: DIXON, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Michael DENMON, Defendant-Appellant.
    No. KCD 29482.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.

      James L. McMullin, McMullin, Wilson & Schwarz, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Daniel F. Lyman, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

The defendant appeals a conviction for murder in the second degree and a jury-imposed sentence of fifteen years subsequently reduced to ten years by the trial court.

Defendant contends that the evidence was insufficient as a matter of law to sustain the verdict and, in a related point, that the verdict was based upon the perjured testimony of two witnesses.

Under the familiar rule that upon the issue of sufficiency, the evidence will be viewed in the light most favorable to the State and with regard to all reasonable inferences supporting the verdict with contrary evidence being disregarded, State v. Roberson, 548 S.W.2d 280 (Mo.App.1977), the record supports the following statement of facts.

An inmate named Barnett was assaulted in his cell in the Jackson County Jail and subsequently died from injuries received in the assault. At the time of the assault, defendant was a prisoner in the same “tank” which consisted of six cells with access to one another. An inmate witness named Whitley recounted the events of the lights in the “tank” being turned off and going to Barnett’s cell with the defendant. After Whitley returned to his cell, he could determine from the noises that someone was being beaten in Barnett’s cell and observed the defendant stomping on Barnett who was tied up. Another inmate witness Williams testified he was present in Barnett’s cell and observed the beating of Barnett by the defendant and two other inmates. Both of these witnesses admitted that charges were dismissed against them in exchange for their testimony against the defendant in the instant case.

Defendant’s first point, that the evidence is insufficient as a matter of law, is based upon the defendant’s claim that the only evidence connecting the defendant with the crime was that of the inmates who testified and that they were “admitted perjurers and liars” and that Whitley was a “co-defendant.” Despite these conclusory statements concerning the witnesses Whitley and Williams, they have no support in the transcript in this case. Whitley was not a co-defendant, nor was Williams; and, although both witnesses were impeached by prior inconsistent statements with respect to some matters, that impeachment goes only to the question of credibility and not to the admissibility of their testimony. The credibility of witnesses and the weight and value to be given their testimony are matters within the province of the jury, and credibility is not a matter for review in this court. State v. Frankoviglia, 514 S.W.2d 536 (Mo.1974). Defendant’s argument in his brief concerning the credibility of these witnesses does not reach or determine the issue of submissibility. If their testimony was believed by the jury as it apparently was, it was sufficient to sustain the verdict.

The second claim of error, that the testimony of Whitley and Williams was based upon proven perjured testimony is again simply the conclusory statement of counsel characterizing the evidence of both Whitley and Williams who were impeached with respect to certain conversations with jail officials subsequent to the offense. However, impeachment does not destroy their testimony but, as noted, affects only its weight and value which was for the jury. The jury was fully apprised of the bargain made by the prosecution with respect to the dismissal of other charges against these witnesses, and it was for the jury to determine the credibility of their testimony concerning the defendant’s activities.

Judgment affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Robert A. NORTON, Trustee, d/b/a 921 Walnut Building Group, Plaintiff-Appellant, v. INSURANCE SERVICES OFFICE, d/b/a Insurance Services Office of Missouri and Thomas E. Scott, Defendants-Respondents.
    No. KCD 29594.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.
    Charles F. Crews, Crews, Milliard & South, Kansas City, for plaintiff-appellant.
    Truman K. Eldridge, Jr., John A. Vering III, Dietrich, Davis, Dicus, Rowlands & Schmitt, Kansas City, for defendants-respondents.
    Before WELBORN, Special Judge, Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment for defendants in action for damages for breach of lease. The question is whether the court erred in giving effect to a typewritten insertion in the lease over an inconsistent printed provision in the lease. Affirmed.

Plaintiff is the trustee for 921 Walnut Building Group, assignee of certain written leases between Columbia Union National Bank and Missouri Inspection Bureau, predecessor of Insurance Services Office, whose manager is defendant, Thomas E. Scott.

The lease in issue, dated August 1970, was for a period January 1,1971, to December 31, 1973, extended by a written agreement from January 1,1974, to December 31, 1974, at which time ISO had vacated the leased premises.

The lease was a standard printed form submitted by plaintiff’s assignor to defendants’ predecessor. Paragraph 14 of the printed form provided:

“This lease shall, at the expiration of the above mentioned term, be renewed for a like term, and shall at the expiration of any renewal of said term, be renewed for an additional term equal in time to the original term * * * ; provided, however, that should either party hereto desire to terminate * * * at the expiration of the above mentioned term, or at the expiration of any renewal thereof, the party so desiring to terminate may do so by giving written notice * * * to the other party at least ninety (90) days before the expiration of the above mentioned term, or any renewal thereof.”

Paragraph 17 of the lease, added by typewriter by defendants prior to execution by the parties, provided:

“Lessee has the option to renew this lease for another two years at the end of the term of the lease, by giving Lessor 60 days written notice.”

Plaintiff-appellant’s position is that the lease was automatically renewed for a period of three years following December 31, 1974, pursuant to paragraph 14; that defendants’ vacation of the premises was a breach, and plaintiff became entitled to rentals provided for the 3-year renewal term. He argues for a construction that paragraph 17, inserted by lessee in its favor, modifies paragraph 14 to give an option to renew for two years even though lessor may have given notice to defeat the automatic renewal. “If neither party has given notice under paragraph 14, it gives lessee another thirty (30) days to decide to reduce the renewal term from three (3) years to two (2) years.”

Defendants-respondents’ position is that renewal of the lease was governed by paragraph 17; that in absence of the renewal notice by defendants as there provided, the lease expired December 31, 1974. They argue that paragraph 17 prevails because it and paragraph 14 are inconsistent and irreconcilable, in which case typewritten paragraph 17 prevails over printed paragraph 14.

The rule of this case is stated, 51C C.J.S. Landlord and Tenant § 232(6):

“Effect should be given to both the written and printed provisions of the lease, if they are consistent with each other, or if they may be reconciled by a reasonable construction. However, if the different portions conflict, the written or typewritten portion controls the printed portion, and is entitled to the greater weight; and if the conflict is irreconcilable the written or typewritten portion will prevail.”

See also 49 Am.Jur.2d, Landlord and Tenant, § 141; Belt Seed Co. v. Mitchelhill Seed Co., 236 Mo.App. 142, 153 S.W.2d 106, 110 (1941); School District No. 18 v. McClure, 224 S.W. 831, 833 (Mo. 1920); National Heater Co., Inc. v. Corrigan Co. Mech. Con., Inc., 482 F.2d 87, 89 (8th Cir. 1973). As stated, 17 Am.Jur.2d, Contracts, § 271:

“The reason greater effect is given to the written or typed part of an agreement than to the printed part of it, if they are inconsistent, is that the written or typed words are the immediate language and terms selected by the parties themselves for the expression of their meaning, while the printed form is intended for general use without reference to particular objects and aims.”

See also Restatement, Contracts, § 236.

Plaintiff landlord submitted the printed form commercial lease containing in paragraph 14 a typical renewal provision favorable to the landlord, i. e., automatic renewal in absence of 90 days’ written notice to terminate by the lessee. After negotiation, the parties agreed to insertion of typewritten paragraph 17 providing for renewal favorable to the tenant, i. e., automatic expiration in absence of exercise of option to renew by the tenant. Printed paragraph 14 and typewritten paragraph 17 are thus inconsistent; and typewritten paragraph 17 prevails. Same constitutes the last expression of the parties’ intentions.

Judgment affirmed.

All concur.


author: TURNAGE, Judge.

text:
    William Glenn YOST, Respondent-Plaintiff, v. Merle Lee BRYANT, Appellant-Defendant.
    No. KCD 29655.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.
    James 0. Turner, Turner & Whetsell, St. Joseph, for appellant-defendant.
    Alden S. Lance, Savannah, for respondent-plaintiff.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

William Yost brought suit against Merle Bryant for personal injuries as a result of an automobile collision. The court entered judgment in favor of Yost on a jury verdict for $25,000. Bryant appeals on the contention the evidence showed Yost was contrib-utorily negligent as a matter of law. Affirmed.

The accident occurred at about 8:00 P.M. in June, 1972, at an uncontrolled intersection of two gravel roads in Caldwell County. Yost testified he was driving his pickup truck south at 35 mph. He testified the intersection was generally level, with the road he was traveling running north and south and the other road east and west. When Yost was about 75 feet north of the intersection, he observed Bryant traveling west about 150 feet east of the intersection. Yost stated he thought he had the right of way and believed he had sufficient time to clear the intersection although he made no estimate of the speed of the Bryant car at the time he observed it. After observing the Bryant car, Yost looked to the west and did not see any traffic. Yost was in the intersection south of the centerline of the east-west road when he next saw the Bryant car. At that time Bryant was about a car length away and was skidding toward the Yost truck. Bryant’s ear struck the left side of the truck at the left wheel. The truck traveled about 30 feet south and overturned. A highway patrolman testified Bryant left 117 feet of skid marks up to the point of impact.

Bryant admitted he had pleaded guilty to a charge of failure to yield the right of way as result of this accident. He stated he was traveling some 30 to 45 mph and knew Yost had the right of way at the intersection. He stated he put on his brakes and thought he could stop but was unable to do so.

Bryant’s sole contention on this appeal is error on the part of the trial court when it refused to enter judgment in his favor pursuant to his motion because Yost was con-tributorily negligent as a matter of law. Bryant bases this contention on the failure of Yost to look back to the east to check the location of Bryant’s car before he entered the intersection.

Of course, the question of Yost’s negligence was for the jury “unless it may be said from all the evidence and proper inferences therefrom, viewed in the light most favorable to the plaintiff, that the only reasonable conclusion is that the plaintiff was negligent and that her negligence was the proximate cause of her injury.” Holtkamp v. Gibbs, 359 S.W.2d 414, 416[1, 2] (Mo.App.1962).

Holtkamp involved facts essentially similar to those in the case at bar. There the plaintiff observed defendant’s automobile before she entered the intersection but did not estimate his speed. She proceeded into the intersection because she thought she had time to make it safely across and because she thought she had the right of way. The court there rejected the claim of contributory negligence as a matter of law and observed the defendant ignored the fact the plaintiff had the right of way.

In this case Yost had the right of way under § 304.351(1, 2) RSMo 1969, because the jury could have found Yost entered the intersection first and Yost was the driver of the vehicle on the right. Furthermore, Bryant acknowledged that he knew Yost had the right of way. Moreover Bryant pleaded guilty to failure to yield the right of way in this accident and while this plea is not conclusive, it was admissible in evidence for consideration by the jury. Ferguson v. Boyd, 448 S.W.2d 901, 903[3, 4] (Mo.1970).

Whether or not Yost was guilty of contributory negligence when he entered the intersection without looking toward the Bryant automobile a second time would not obviate the fact Yost had the right of way which placed the primary duty on Bryant to allow Yost to pass in safety.

Bryant relies on cases such as Burton v. Moulder, 245 S.W.2d 844 (Mo.1952). However, Burton involved a plaintiff who had a stop sign before entering the intersection and observed the defendant’s automobile before he moved from a position of safety at the stop sign into the intersection. That case is not comparable to the facts in the case at bar. Bryant has not cited any case on facts comparable to those presented here in which the plaintiff was found to be con-tributorily negligent as a matter of law. On the contrary, Holtkamp is the case which appears to be closest on the facts, and there the court refused to hold the plaintiff contributorily negligent as a matter of law. The issues of Bryant’s negligence and Yost’s contributory negligence were properly submitted to the jury and resolved by them.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Ambrose Louis MARES, Jr., Appellant.
    No. KCD 29661.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.
    Clifford A. Falzone, Falzone & Schirmer, Moberly, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Ambrose Mares, Jr., was convicted of felonious assault without malice, § 559.190, RSMo 1969, by the court sitting without a jury. Punishment was assessed at imprisonment for two years.

On this appeal Mares contends the evidence was insufficient to support the conviction and especially to show intent. Mares also contends the evidence showed he was engaged in reasonable self-defense and thus excused from the assault. Affirmed.

On the night of July 1,1976, Mr. and Mrs. Charles Rodenberg took their two small children to a beer garden in Norborne to begin the observance of the Bicentennial. Late in the evening Mrs. Rodenberg was sitting at a table holding her small daughter in her lap when she observed two men scuffling and approaching her chair. She called for her husband to stop the two men before they fell on her and her daughter. About this time one Smithpeter backed Mares into the table where Mrs. Rodenberg was sitting and pushed him so that Mares partially was leaning over the table backward. Rodenberg pulled the two men off the table and told them to do their fighting elsewhere. At this time the three men were in a general line, probably typical of many marching units, extending from Mrs. Rodenberg. Nearest to her was Smithpeter and Mares, then Rodenberg. Mrs. Roden-berg stated she could see Mares because of the irregular line. After the men had assumed the general position just described, Mares turned toward Smithpeter as if to resume the battle. Rodenberg pushed Mares on the shoulder and inquired if he had not heard Rodenberg’s instructions. Immediately following this question from Rodenberg, Mrs. Rodenberg stated she saw Mares’ arm and hand flash several times. She then saw Mares throw a knife. She immediately noticed blood on Mr. Roden-berg’s shirt. Rodenberg was found to have a superficial cut about three inches in length across the stomach, a cut about one-half inch in length on the right shoulder, and a stab wound in the left upper back. The knife Mares was seen to throw had a blade about three inches in length.

A friend of the Rodenbergs retrieved the knife and a deputy sheriff who was in the crowd took the knife and placed Mares under arrest.

The court could have reasonably found the above facts from the testimony of Mr. and Mrs. Rodenberg. By Rule 26.-01(b) the findings of the court in a jury waived criminal case have the effect of a jury verdict and must be reviewed in the same manner. State v. Scott, 525 S.W.2d 410, 412 (Mo.App. 1975). Of course, this court in considering the sufficiency of the evidence must view all the evidence in the light most favorable to the State and consider such evidence as true and disregard all contrary evidence. State v. Scott, supra. Based on the foregoing rules it is readily apparent the facts stated above are sufficient to support a finding of guilty beyond reasonable doubt of felonious assault without malice.

Mares insists, however, the evidence is insufficient to prove that he intended to assault Rodenberg. It was stated in State v. Woody, 406 S.W.2d 659, 662[5-7] (Mo. 1966) that in determining intent it is proper to “consider the nature of the weapon used, the manner of its use, and all the related circumstances giving rise to the incident out of which the charge arose.” Again, it is apparent the evidence was sufficient to prove that Mares intended to commit the assault upon Rodenberg from the facts heretofore stated.

Mares next contends he should have been acquitted because the evidence showed he was engaged in a lawful defense of his person and acted only with reasonable force at the time the assault occurred. This contention seemingly goes directly contrary to the first point since any assault committed in self-defense would of necessity be an intentional assault. Nevertheless, the rule is stated in State v. Ruffin, 535 S.W.2d 135, 137[2-5] (Mo.App. 1976):

As a general rule, only a present danger can be a legitimate justification for resort to self-defense, and in prosecutions for assault with intent to murder, or to kill, or to do serious bodily harm it is usually required for self-defense to serve as a justification, that the accused was faced with actual, or at least reasonably apparent, danger of losing his life or suffering serious bodily injury.

This point may also be resolved by reference to the facts heretofore stated. There is no evidence that Rodenberg had any weapon nor had done anything to cause Mares to feel that he was faced with any danger of losing his life or suffering serious bodily injury at the hands of Rodenberg.

Mares argues that the altercation with Smithpeter supplied the appearance of danger which gave him the right to assault Rodenberg. However, the State’s evidence indicated the fight between Smithpeter and Mares had subsided with Smithpeter standing on one side of Mares and Rodenberg on the other. There was nothing in the State’s evidence to indicate Rodenberg posed any threat to Mares which would give Mares any justification for an assault upon him. There was nothing in the manner in which Rodenberg pushed Mares on the shoulder to indicate any assault but it was clearly an attempt only to gain Mares’ attention for the purpose of suggesting that he fight elsewhere.

The judgment is affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    Steve SIMON, Respondent, v. MISSOURI STATE BOARD OF PHARMACY, Appellant.
    No. KCD 29700.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.
    John D. Ashcroft, Atty. Gen., Michael Elbein, Asst. Atty. Gen., Jefferson City, for appellant.

      Bruce W. Simon, Simon, Simon & Katz, P. C., Kansas City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SHANGLER, Presiding Judge.

The Missouri State Board of Pharmacy appeals from the summary judgment of the circuit court which reversed the decision of the Administrative Hearing Commission to suspend the pharmacy license of plaintiff Simon.

The pharmacist Simon was convicted in the United States District Court on a plea of nolo contendere to a criminal charge for the distribution of controlled substances in violations of Federal law. The court suspended imposition of sentence under the procedure of 18 U.S.C. § 3651, imposed a $5,000 fine and placed Simon on probation for a term of five years. The judgment was amended to render payment of the $5,000 a condition of probation. Thereafter, the State Board of Pharmacy complained against Simon for suspension or revocation of his Missouri pharmacy license on the premise that he had been convicted of a felony within the meaning of § 338.-055.3, RSMo Cum.Supp.1975. The Administrative Hearing Commission concluded after evidence that the judgment which required Simon to make payment of $5,000 constituted a conviction within § 338.055.3 and so the Simon pharmacy license was subject to suspension or revocation.

Thereafter, the State Board of Pharmacy conducted a hearing as to the discipline to be imposed and ordered the Simon license suspended for two years. The circuit court reversed the administrative decisions.

The agency decision that the federal prosecution resulted in a criminal conviction of Simon rejects explicitly the authority of Meyer v. Missouri Real Estate Commission, 238 Mo.App. 476, 183 S.W.2d 342 (1944) that the suspension of imposition of sentence on a plea of nolo contendere to a federal charge is not a conviction within the Missouri statute as to authorize the Missouri Real Estate Commission to suspend the real estate broker license of the defendant. The agency adopts this posture on the essential holding of Meyer [183 S.W.2d l.c. 347] that

[w]here sentence is suspended, and so the direct consequences of fine and imprisonment are suspended or postponed temporarily or indefinitely, so, also, the indirect consequences are likewise postponed.

The agency conclusion of law that the provision that Simon make payment of $5,000, although recited as a condition of probation, was an extraction of penalty and so an incident of conviction within the sense of Meyer misreads that decision. The intimation of the agency order that the federal court judgment was merely an artifice to avoid the consequence of conviction is also gratuitous. Actually, the judgment rendered Simon was from among exact alternatives allowed by Title 18, § 3651 to a federal court in such a proceeding:

[The] [court] may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best . . . [A]mong the conditions thereof, the defendant . [m]ay be required to pay a fine

Such statutes — local and federal — which provide for suspension of imposition of sentence incident to grant of probation are remedial and the practices they define are accorded comprehensive effect to accomplish their restorative purposes. Meyer, supra, 183 S.W.2d l.c. 345[2, 3]; United States of America v. Beacon Piece Dyeing & Finishing Co., Inc., 455 F.2d 216[1, 2] (2d Cir. 1972). The authority of Meyer that a judgment which suspends imposition of sentence — attended by whatever lawful condition — does not render a criminal conviction governed the proceeding before the administrative agency.

The agency contends nevertheless that Meyer rests on unsound foreign precedent since modified or abjured by the courts which rendered them and, in any event, the states are bound by the federal practice which views suspension of imposition of sentence on a plea-of nolo contendere as a conviction in a criminal ease.

These precise contentions were thoughtfully answered in Warren v. Director, Missouri Division of Health, 565 S.W.2d 740 [Mo.App.1978]. We held there that however revaluated the antecedents, the holding of Meyer has become a settled rule of law in Missouri not subject to reexamination by this court on that ground. We held also that while, as an abstract proposition of logic, federal law determines federal definition, the values of a local statute flow from the definitions which accord with the public policy of the state law — in this case, that a suspension of imposition of sentence does not result in a criminal conviction.

The summary judgment of the circuit court is affirmed.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Allen Farrel JONES, Defendant-Appellant.
    No. KCD 29778.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.
    Jefferson G. Broady, Rock Port, for defendant-appellant.
    Bernard W. Gorman, Tarkio, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

The defendant Allen Farrel Jones appeals his conviction for stealing under Fifty Dollars ($50.00) and a jury-imposed fine of Five Hundred Dollars ($500.00). Defendant’s claim that the information was fatally defective is dispositive of the case and the judgment of conviction is reversed.

A very short statement of facts will serve to focus the issue. The evidence at trial showed that Allen Farrel Jones and one Paul Humphrey removed some copper wire from the premises of a third person and fled the scene upon detection of the theft. Humphrey testified against Jones in the instant case. The difficulty arises because the information upon which the State proceeded no where mentions the defendant Allen Farrel Jones. The information in its entirety makes absolutely no mention of Jones but contains the name of Paul Humphrey in its caption and in the charging portions of the information. After the State rested its case, the defendant moved for a directed verdict, pointing out that the information totally failed to name the defendant. After refusal of the directed verdict upon the basis of a defective information, defendant offered no evidence and properly raised the issue of the defective information in a motion for a new trial which was overruled. It is to be noted that there is no contention in this case that this was a misnomer situation or that Allen Farrel Jones ever used as a pseudonym Paul Humphrey. It is purely a situation where another and different individual was charged in the information under which the defendant Allen Farrel Jones was tried.

Where the name of another person is substituted by mistake or inadvertence for the defendant’s name in the charging or accusing part of an indictment, information, or accusation, it is universally held that the indictment, information, or accusation is fatally and incurably defective. State v. Stephens, 199 Mo. 261, 97 S.W. 860 (Mo.1906); State v. Manning, 168 Mo. 418, 68 S.W. 341 (1902); State v. Edwards, 70 Mo. 480 (1879); State v. Hall, 150 W.Va. 385, 146 S.E.2d 520 (1966); Culpepper v. State, 173 Ga. 799, 161 S.E. 623 (1931); State v. Rude, 83 S.D. 550, 162 N.W.2d 884 (1968); 41 Am.Jur.2d, Indictments and Informations, § 130, p. 962; 41 Am.Jur.2d, Indictments and Informa-tions, § 128, p. 961; 42 C.J.S. Indictments and Informations § 127, p. 1015; 79 A.L.R. 219, “Substitution by mistake of name of person other than defendant for defendant’s name in indictment, information or other criminal accusation.”

A sufficient indictment or information is an indispensable prerequisite to a valid verdict, judgment, and sentence. State v. DiLiberto, 537 S.W.2d 671 (Mo.App.1976). Where an information is null and void and without legal effect, the trial court is without jurisdiction and its proceedings are a nullity. State v. Hasler, 449 S.W.2d 881 (Mo.App.1969); City of Florissant v. Rouillard, 510 S.W.2d 185 (Mo.App.1974); State v. Rude, supra.

The information being fatally defective and the trial court without jurisdiction, the judgment of conviction must be reversed.

All concur.


text:
    Derryl SAMPSON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29849.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.

      Jerry W. Venters, Asst. Public Defender, Jefferson City, for movant-appellant.
    John D.“ Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Movant appeals denial of his Rule 27.26 motion after evidentiary hearing. Mov-ant’s underlying conviction was for two counts of robbery and concurrent 9-year sentences. The single issue raised by mov-ant is ineffectiveness of counsel because of the failure of trial counsel to file a notice of appeal and perfect an appeal.

There is no question but that no appeal was taken from the movant’s convictions. However, the mere failure to take an appeal does not constitute ineffective assistance of counsel. Coney v. State, 491 S.W.2d 501 (Mo.1973); Brown v. State, 512 S.W.2d 404 (Mo.App.1974). Only where the defendant wishes to appeal and his attorney either refuses or negligently fails to take the proper steps to appeal is there ineffective assistance of counsel. Green v. State, 451 S.W.2d 82 (Mo.1970); Brown v. State, supra. It is implicit in this rule of law that the desire to appeal must have been communicated to counsel or otherwise understood by him. See: State v. Scott, 492 S.W.2d 168 (Mo.App.1973); United States v. Neff, 525 F.2d 361 (8th Cir. 1975); McFad den v. United States, 312 F.Supp. 820 (E.D.Mo.1970), aff’d, 439 F.2d 285 (8th Cir. 1971).

In a 27.26 proceeding, the allegations of the movant do not prove themselves, and the movant has the burden of proving his allegations by a preponderance of the evidence. Rule 27.26(f); McLallen v. State, 543 S.W.2d 813 (Mo.App.1976); Stroder v. State, 522 S.W.2d 77 (Mo.App.1975); Floyd v. State, 518 S.W.2d 700 (Mo.App.1975).

Applying these principles to the testimony offered at the evidentiary hearing, it is clear that the movant must show that the trial court’s finding was clearly erroneous in that the evidence proved that the movant desired to appeal, that his lawyer knew by reason of a communication from the movant of that desire or in some fashion this was implied, and that the attorney failed to prosecute the appeal. Unquestionably, the evidence showed that the movant desired an appeal based on the movant’s testimony and, as indicated, no appeal was taken. The critical issue is whether counsel for the movant understood the movant desired an appeal. The movant did not claim that he ever requested counsel to perfect an appeal. He testified it was his understanding that an appeal was being taken based on movant’s testimony that his lawyer suggested an appeal and told movant he would file one. However, trial counsel also testified at the evidentiary hearing and said that he did not recall having a conversation with regard to a possible appeal. The lawyer decided not to appeal after the motion for new trial was overruled because he did not think there was any reversible error in the trial, and he informed the movant of his determination of that fact. He specifically denied telling the movant he was going to appeal the conviction.

Thus, there is a direct conflict in the evidence as to whether a representation as to an appeal was ever made, and there is no direct evidence of any kind that movant communicated to counsel his desire for an appeal. The credibility of the witnesses in the proceeding to vacate the conviction and sentence is a matter for the trial court to decide. Scogin v. State, 510 S.W.2d 825 (Mo.App.1974). To determine that the trial court’s finding on that contested fact issue was clearly erroneous would require this court to redetermine the issue of credibility contrary to the manner in which the trial court determined that issue. There is nothing in either the record or the argument to justify any such rejection of the trial court’s finding. Judgment of the trial court is affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    Barbara J. WALKER, Plaintiff-Appellant, v. Jerry Dixon WALKER, Defendant-Respondent.
    No. KCD29630.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.

      Marvin W. Opie, Versailles, for plaintiff-appellant.
    No appearance for respondent.
    Before SHANGLER, P. J., SWOFPORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Plaintiff-wife initiated these proceedings in Nebraska under the Uniform Reciprocal Enforcement of Support Law. Upon filing of the Nebraska petition and the certificate of the Nebraska District Court in the Circuit Court of Morgan County, Missouri, defendant-husband filed a motion to dismiss. That motion was sustained, and plaintiff-wife appeals. Defendant-husband has made no appearance in this court.

The facts as stated in the Nebraska petition and in the order of the Nebraska District Court are as follows: the parties were married on October 22, 1959, in Chillicothe, Missouri. One child was born of that marriage on July 19, 1962, and another on May 31, 1964. The parties were divorced in Jackson County, Missouri, on December 7, 1964. Plaintiff now resides in Tecumseh, Nebraska. Defendant resides in Versailles, Morgan County, Missouri, where he can be served and jurisdiction obtained. Plaintiff’s petition alleges, and the Nebraska court order certifies, that defendant owes a duty to support his two children.

The ruling of the trial court dismissing these proceedings states as the reason that it constitutes a “multiplicious proceeding within Missouri.” By this, the trial judge apparently meant that he considered the jurisdiction of the Circuit Court of Jackson County, which granted the divorce in 1964, to be exclusive. That ruling stands in direct conflict with Paul v. Paul, 439 S.W.2d 746 (Mo. banc 1969). The Paul decision declares that the Uniform Reciprocal Enforcement of Support Law was intended to and does provide an expeditious and inexpensive remedy additional to enforcement of the right to support under the existing divorce decree. To the same effect: Olson v. Olson, 534 S.W.2d 526 (Mo.App.1976). Paul controls the present case.

Reversed and remanded for further proceedings.

All concur.


author: PER CURIAM: FLANIGAN, Judge.

text:
    Sherry DAMPIER, Plaintiff-Appellant, v. Carl NICHOLS, Defendant-Respondent.
    No. 10902.
    Missouri Court of Appeals, Springfield District, En Banc.
    Aug. 2, 1978.
    Dale H. Close, Richland, for plaintiff-appellant.
    No appearance for defendant-respondent.
   PER CURIAM:

Plaintiff sued for damages allegedly resulting from assault and battery. Defendant counterclaimed for damages because, so it was averred, plaintiff caused defendant’s wrongful arrest. On October 11, 1977, a Polk County jury found for defendant on plaintiff’s petition and for plaintiff on defendant’s counterclaim. After her after-trial motions were denied, plaintiff filed a notice of appeal.

The transcript on appeal demonstrates that no judgment has been entered in the case. A final judgment forms the sole basis for appellate review. Rule 74.01, V.A.M.R.; § 512.020, V.A.M.S. In the absence of such a judgment we have no appellate jurisdiction and hence no alternative but to dismiss the appeal.

Appeal dismissed.

All concur, except FLANIGAN, J., dissents in separate opinion.

FLANIGAN, Judge.

For the reasons expressed in my dissenting opinion in Gothard v. Spradling, 561 S.W.2d 448, 450 (Mo.App.1978) I respectfully dissent.


author: PER CURIAM:

text:
    Donald Lee HAASE, Plaintiff-Respondent, v. Linda Miller RICHMOND, Defendant-Appellant.
    No. 10365.
    Missouri Court of Appeals, Springfield District.
    Aug. 11, 1978.

      Sam R. Gardner, Almon H. Maus, Monett, for plaintiff-respondent.
    J. A. Appelquist, Kerry L. Montgomery, Springfield, for defendant-appellant.
    Before BILLINGS, C. J„ and TITUS and FLANIGAN, JJ.
   PER CURIAM:

Plaintiff brought suit to specifically enforce the option-to-purchase portion of a 5-year lease which he and defendant-owner executed March 14, 1971. Inter alia, the contract reserved $85 per month rent unto defendant, which plaintiff faithfully paid, and provided that plaintiff “may purchase at any time said property [during the] next 5 years for the purchase price of $22,000.” The Circuit Court of Lawrence County obliged plaintiff and defendant appealed.

Defendant was a single woman when the contract relating to her farm was signed. She had no dealings with plaintiff prior to execution. All of plaintiff’s negotiations had been with defendant’s father who did not testify at trial. Defendant and her father drafted the “Lease with Option to Purchase” before it was taken to a notary public for typing. After some handwritten alterations were made, all initialed by defendant, the instrument was duly signed.

In 1965 defendant executed a deed of trust to the farm to secure a $10,500 Veterans’ Administration loan; in 1968 she executed a second deed of trust to secure a $2,500 loan from her parents. On the day of trial (November 18,1975) $8,300 was due the Veterans’ Administration; no payments had been made on the parents’ note.

Early in July 1974 plaintiff acquired assurance of a $22,000 bank loan to purchase the farm under the option. However, when the banker contacted defendant, she told him “that she wasn’t willing to sell [the farm] according to the contract.” Plaintiff then consulted a lawyer who, on July 16, 1974, wrote defendant: “[Plaintiff] previously advised you in person, that he was exercising this option to purchase and I now, in writing, formally notify you, on behalf of [plaintiff], that he is exercising this option purchase immediately, for the total purchase price of $22,000.00, in return for which we expect and are entitled to a full Warranty Deed and merchantable title of record to this land, free and clear of all incumbrances. Please send to me a currently certified abstract of the property in question. As soon as the title has been examined and determined to be clear, we will then make arrangements to deliver the $22,000 total, so that all mortgages and incumbrances on the property will first be paid off, and the balance of the purchase price will be delivered to you, upon delivery of said deed.”

Under date of August 13, 1974, defendant’s lawyer replied: “[Defendant] does not have the same interpretation of the ‘instrument’ evidenced by your letter in that she maintains that the instrument if enforceable contemplates $22,000.00 net to her.” Plaintiff’s petition in this cause was filed in 1975 on St. Valentine’s Day.

Mislabeled “Points And Authorities,” the “Points Relied On” in defendant’s brief (Rule 84.04(a) and (b), V.A.M.R.) read: “I The circuit court erred by failure [sic] to find that the notice given by [plaintiff] to [defendant] was insufficient to exercise the option and therefore no valid contract was created between the parties because [plaintiff] injected conditions in the acceptance which rendered it a conditional acceptance, (a) The Circuit Court erred by failure [sic] to find that the option should be strictly construed against the optionee. II The circuit court erred by failure [sic] to find that the contract between the parties should not be specifically enforced for the reason that enforcement of the terms of the contract created a hardship and produced an unjust result upon [defendant], (a) The circuit court erred in finding that the fairness of the contract should be determined based upon the value of the property on the date the option was granted as opposed to the value of the property on the date the option was exercised.”

Initially we note that this court is not obliged to seek through the transcript on appeal, the statement of facts nor the argument portion of an appellant’s brief to ascertain the intended meaning of points relied on. The “points relied on” in an appellant’s brief should be written understandably and self-sufficiently without need to resort to the transcript or other portions of the brief to come by an understanding of their meaning. Barber v. M. F. A. Milling Co., 536 S.W.2d 208, 209-210[4] (Mo.App.1976); Rule 84.04(d), V.A.M.R. No appellate court should stand as an advocate to ferret out possible trial court errors [Speicher v. Dunn, 530 S.W.2d 45, 46[2] (Mo.App.1975)] and should confine its efforts solely to points briefed in compliance with the rules of appellate procedure [Brown v. Wilkinson, 495 S.W.2d 678, 681[5] (Mo.App.1973)], which are mandatorily applied in review of court-tried cases with the same force as in the review of jury-tried matters. M & A Electric Power Cooperative v. Nesselrodt, 509 S.W.2d 468, 470[1] (Mo.App.1974); Freshour v. Schuerenberg, 495 S.W.2d 116, 118[8] (Mo.App.1973).

Point I leaves us to guess and conjecture “wherein and why” the trial court allegedly erred in failing to find that plaintiff’s notice [whichever one that may have been — Lusco v. Tavitian, 296 S.W.2d 14, 16[4] (Mo.1956)] was insufficient because plaintiff injected conditions (whatever they may have been) that rendered plaintiff’s acceptance conditional. Simply asserting what averred errors are without also stating wherein and why they are errors neither complies with Rule 84.04(d), V.A.M.R., nor preserves anything for appellate review. State ex rel. State Highway Comm’n v. Heim, 483 S.W.2d 410, 415[17] (Mo.App.1972). Nonetheless, in excess of appellate duty, from the argument portion of defendant’s brief we learn her contention is aimed at the July 16, 1974, acceptance letter of plaintiff’s counsel, supra. Defendant contends that the letter unwarrantedly required the furnishing of a full “Warranty Deed and merchantable title of record . . . free and clear of all incumbrances.” We do not agree with defendant that plaintiff’s acceptance of the option via counsel’s letter was made in a manner contrary to the agreed method. “An agreement to sell and convey land is in legal effect an agreement to sell a title to the land, and in the absence of any provision in the contract indicating the character of the title provided for, the law implies an undertaking on the part of the vendor to make and convey a good or marketable title to the purchaser. A contract to sell and convey real estate ordinarily requires a conveyance of the fee simple free and clear of all liens and encumbrances.” 77 Am.Jur.2d, Vendor and Purchaser, § 115, at p. 296. Also, the “obligation of the vendor in a contract for the sale of land, in the absence of any provision or stipulation to the contrary, is to convey a good or marketable title, and this obligation cannot be satisfied by an offer to convey an estate subject to outstanding encumbrances; in the absence of anything in the contract itself indicating that the vendee is to take title subject to encumbrances, or of anything to indicate waiver on the part of the purchaser of his right to an unencumbered title, the vendor, under his obligation to furnish a good or marketable title, is bound to furnish a title that is free from encumbrances.” 77 Am.Jur.2d, Vendor and Purchaser, § 191, at p. 369. As to defendant’s contention that counsel’s letter-request for an abstract of title made the acceptance conditional, “a mere request for an abstract, although the contract does not call for one, does not render the exercise of an option a conditional one and thereby taint its effectiveness.” Stringer v. Reed, 544 S.W.2d 69, 78[17] (Mo.App.1976), and cases there cited.

Point 1(a) asserting trial court error because an “option should be strictly construed against the optionee,” is simply an abstract statement of law that does not specify “wherein and why” the court did not so construe the option or why the court’s construction and construing constituted error. The point neither complies with Rule 84.04(d), V.A.M.R., nor preserves anything for review. Rotermund v. Basic Materials Co., 558 S.W.2d 688, 693[10, 11] (Mo.App.1977).

As does Point I, Point II requires guessing and wondering “wherein and why” specific performance of the agreement created a hardship and produced an unjust result upon defendant. A point relied on, such as this, which states nothing but conclusions and which omits the outlining of any evidence to aid the court in understanding the conclusion is not for consideration upon appeal. State ex rel. State Highway Comm’n v. Graeler, 527 S.W.2d 421, 425[4] (Mo.App.1975).

Finally, we do not agree with the abstract assertion appearing as defendant’s Point 11(a). In deciding the availability of specific performance, courts generally will judge of the fairness or equity of the agreement in light of the facts which existed at the time the contract was made and ignore subsequent events. Absent a showing of fraud or bad faith, the mere fact the value of property has increased since an option contract was executed will not usually warrant a court in refusing to decree specific performance. The court nisi did not err in holding that the fairness of the contract was to be decided upon the value of the property at the time the option was granted. Tuckwiller v. Tuckwiller, 413 S.W.2d 274, 278[4] (Mo.1967); Roberts v. Clevenger, 225 S.W.2d 728, 733[10] (Mo.1950); Stringer v. Reed, supra, 544 S.W.2d at 75[11]; Sinclair Refining Co. v. Miller, 106 F.Supp. 881, 885-886[11] (D.Neb.1952); Steen v. Rustad, 132 Mont. 96, 313 P.2d 1014, 1021[15] (1957); 71 Am.Jur.2d, Specific Performance, §§ 82 and 83, pp. 111-115; Annot., 11 A.L.R.2d 381, Specific Performance — Changes, § 3, pp. 397-401, § 6, pp. 406-413.

Judgment affirmed.

All concur.

      . It is to be noted that plaintiffs prelitigation efforts to exercise the option, the filing of the petition herein and the trial of the cause all occurred prior to March 13, 1976, or before the option would have expired.


author: PER CURIAM.

text:
    Andrew J. HOLLARS and Esther Hollars, his wife, Plaintiffs-Respondents, v. The CHURCH OF GOD OF the APOSTOLIC FAITH, INC., a corporation, Defendant-Appellant.
    No. 10793.
    Missouri Court of Appeals, Springfield District, En Banc.
    Aug. 14, 1978.
    Robert S. Wiley, Crane, for plaintiffs-respondents.

      Keith V. Williams, Springfield, for defendant-appellant.
   PER CURIAM.

Plaintiffs initiated suit to acquire access to their 40-acre tract of farm land in Stone County, Missouri. Said tract was separated from Highway 13 by a parcel of land owned by defendant and operated as the Old Elm Tree Church. Plaintiffs alleged that they should have access across the churchyard by virtue of (1) a prescriptive easement; (2) an easement pursuant to . a contract between plaintiffs and the ruling body of the Old Elm Tree Church; and (3) a way of strict necessity. Defendant answered and counterclaimed for damages to the church property as a result of plaintiffs’ past passage over said church property.

The matter came to trial and defendant moved to dismiss Count II of plaintiffs’ petition at the close of plaintiffs’ evidence. Said motion was granted and Count II was dismissed.

Thereafter, the court made findings of fact and conclusions of law and entered judgment. The court dismissed Count I of plaintiffs’ petition. Further, the court declared plaintiffs were entitled to a private road of necessity and ordered the appointment of commissioners to view the land, mark the road, and assess damage to defendant’s land.

The report of the commissioners was filed and defendant made and filed exceptions to the award and report of the commissioners. A jury trial was had and the jury assessed the damage to defendant’s property in the sum of $500 for the taking of the roadway. Thereafter, judgment was entered.

In Missouri, appellate review is purely statutory and § 512.020, V.A.M.S., grants the right of appeal only where the judgment constitutes a final determination of all issues framed by the pleadings. Cochran v. DeShazo, 538 S.W.2d 598, 600(3, 4) (Mo.App.1976). The quoted judgment fails to dispose of defendant’s counterclaim. Allis-Chalmers Credit Corp. v. Baker, 559 S.W.2d 763, 764(2) (Mo.App.1977).

The appeal is premature and is dismissed.

All concur.


author: FLANIGAN, Judge.

text:
    FIRST BANK AND TRUST COMPANY, Plaintiff-Respondent, v. H. P. MONTGOMERY, Jr., Defendant-Appellant, and Henry C. Williams, Defendant.
    No. 10360.
    Missouri Court of Appeals, Springfield District.
    Aug. 14, 1978.

      Gerald H. Lowther, C. Ronald Baird, Lowther, Johnson & Franks, Springfield, for defendant-appellant.
    Thomas D. Dwyer, Springfield, for plaintiff-respondent.
    Before BILLINGS, C. J„ and TITUS and FLANIGAN, JJ.
   FLANIGAN, Judge.

On October 23, 1973, H. P. Montgomery, Jr., appellant here, and another person, executed a promissory note in favor of First Bank and Trust Company (the bank), respondent here. On May 9, 1975, the District Court of Stephens County, Oklahoma, entered a money judgment, for the amount due on the note, in favor of the bank and against Montgomery.

On January 23, 1976, pursuant to Rule 74.79, the bank filed in the Circuit Court of Greene County, Missouri, its verified “Petition for Registration of Foreign Judgment.” An authenticated copy of the Oklahoma judgment was attached to and incorporated in the petition. The clerk of the Missouri court, in compliance with Rule 74.-79(c), notified the clerk of the Oklahoma court of the making of the application and requested the Oklahoma court to file that information with the Oklahoma judgment.

On February 20, 1976, Montgomery was personally served, by the sheriff of Greene County, with a summons, together with a copy of the petition for registration and its attachment. Montgomery failed “to plead within thirty days after jurisdiction over his person” had been obtained. Rule 74.79(g).

On March 25, 1976, the Missouri court made a judgment entry reciting, among other things, that the Oklahoma judgment “is a final personal judgment of this court” in favor of the bank and against Montgomery. The entry also recited the amount of the judgment.

On April 23, 1976, Montgomery filed in the Missouri court a “Motion to Set Aside Judgment.” In that motion Montgomery sought to raise a defense to the Oklahoma judgment, the defense being fraud in its concoction. Also on April 23,1976, the Missouri court held a hearing on Montgomery’s motion. No evidence was introduced at that hearing. The court denied the motion. Montgomery appeals.

Montgomery’s sole “point relied on” is: The trial court erred in refusing to set aside, pursuant to Rule 75.01, the judgment entered March 25, 1976, for the reason that Montgomery’s verified motion, filed within the thirty-day period prescribed by Rule 75.01, clearly showed that the Oklahoma judgment was procured by fraud in its concoction. The point is without merit and the judgment is affirmed.

Fraud in the concoction or procurement of a foreign judgment is a defense to an action on the foreign judgment. Nelson v. Browning, 391 S.W.2d 873, 879[9] (Mo.1965); In Re Veach, 365 Mo. 776, 287 S.W.2d 753, 759[8] (banc 1956); Mekelburg v. Whitman, 545 S.W.2d 89, 90[1] (Mo.App.1976); In Re Barger, 365 S.W.2d 89, 94[2] (Mo.App.1963); Anno. 55 A.L.R.2d 673.

Under the Uniform Enforcement of Foreign Judgments Law, which is embodied in Rule 74.79, the defendant may assert any defense “which under the law of this state may be asserted by the defendant in an action on the foreign judgment.” Rule 74.-79(h). However, the latter rule also provides that the defense “may be presented by appropriate pleadings and the issue raised thereby shall be tried and determined as in other civil actions. Such pleadings must be filed within thirty days after per sonal jurisdiction is acquired . . . .” (Emphasis added.) It is clear that appellant did not comply with the italicized portion of Rule 74.79(h). On February 20, 1976, appellant was personally served, in the Missouri proceeding, with a summons, together with a copy of the petition for registration and its attachment. Appellant filed no pleading within 30 days thereafter.

It might be argued that giving any recognition to appellant’s “Motion to Set Aside Judgment” which he filed on April 23, 1976, is inconsistent with Rule 74.79(h) and defeats its very purpose. The validity of that argument need not be explored, however, for the reason that the instant motion, even if accorded recognition, falls short of its goal.

Pleadings do not prove themselves. State v. McQueen, 296 S.W.2d 85, 90[5] (Mo. banc 1956); Stewart v. Brown, 546 S.W.2d 204, 207[3] (Mo.App.1977); Fulton v. Fulton, 528 S.W.2d 146, 157[24] (Mo.App.1975). Although appellant’s brief (and his “point relied on”) refers to his motion of April 23, 1976, as “verified,” the motion, as set forth in the transcript, is not verified. The transcript does contain at the end of the motion the following: “Signatures, affidavit and jurat omitted.” The transcript sheds no light on any of the following: (1) Whose signatures are referred to? (2) What were the contents of the affidavit? (3) Who was the affiant? (4) What were the contents of the jurat? (5) Who was the person who executed the jurat and by what authority did he act?

As previously stated, no evidence was introduced at the hearing of April 23. Appellant seeks to derive evidentiary benefit from the motion itself, emphasizing the unsubstantiated fact that it was “verified.” There is authority for the general rule that verification of a pleading does not dispense with the need for proof of its allegations. 71 C.J.S. Pleading § 366, p. 769.

“Although an appellate court has the discretionary right to direct the clerk of the trial court to send up original documents or exhibits, . . the court is under no obligation to do so. . . Unless the questions on appeal are presented by a statement of the case approved by the trial court ... or the parties agree in writing upon an abbreviated or partial transcript, . . . it is appellant’s responsibility to file a full transcript . . . And where, as here, exhibits are omitted from the transcript and are not filed with the appellate court . . . the intendment and content of such exhibits will be taken as favorable to the trial court’s ruling and as unfavorable to appellant.” Lange v. Baker, 377 S.W.2d 5, 7[2-4] (Mo.App.1964). Each of the foregoing statements is supported by authorities there cited. See also Wykle v. Colombo, 457 S.W.2d 695, 700[4] (Mo.1970).

There is also authority for the proposition that the inclusion of the verification or the affidavit in the transcript would not have required reversal. “[0]ur courts have long held that the trial court when acting as the trier of fact may disbelieve the testimony of any witness. Labor Discount Center, Inc. v. State Bank and Trust Co., 526 S.W.2d 407 (Mo.App.1975). ‘The trial court in a court-tried case is the arbiter of the facts; it may believe or disbelieve oral evidence and the fact that the testimony is uncontradicted is not in any way decisive.’ Intertherm, Inc. v. Coronet Imperial Corp., 558 S.W.2d 344, 348 (Mo.App.1977). If, then, under Missouri law, the trial court may disbelieve in-court testimony, a fortiori an affidavit may be similarly treated.” Cloyd v. Cloyd, 564 S.W.2d 337, 343[10] (Mo.App.1978).

The judgment is affirmed.

All concur.

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R.

      . The motion itself is not a model of clarity. It states that when defendant “learned” of the filing of the Oklahoma action, he talked with “the plaintiff” and that “the plaintiff” told defendant certain things. As the opinion indicates, the plaintiff is a corporation.

      . Rule 78.05 permits the filing of affidavits “when any after-trial motion, including a motion for new trial, is based on facts not appearing of record.”


author: TITUS, Judge.

text:
    In re STEVEN et al.
    No. 10967.
    Missouri Court of Appeals, Springfield District, En Banc.
    Aug. 23, 1978.
    Esco V. Kell, West Plains, for appellants.
    David G. Neal, Eminence, R. Jack Garrett, West Plains, for respondents.
   TITUS, Judge.

Doyle and Christine, husband and wife residents of Howell County, are the natural parents of seven children whose ages ranged from one to eight years when the matters herein concerned were instituted in the Juvenile Court of Howell County on March 14, 1974, by the filing of a petition by the juvenile officer of the 37th judicial circuit.

Contrary to the mandate of § 211.091 RSMo 1969, the petition filed March 14, 1974, did not “set forth plainly . [t]he facts which bring the children] within the jurisdiction of the court” as specified in § 211.031 RSMo 1969, but simply concluded that the minors “are neglected children.” On the following day, i. e. March 15, 1974, the court entered an order “that said minors are made immediate wards of the Juvenile Court and Division of Welfare be granted care and custody of said children .. Case to be heard on April 17, 1974.” The transcript on appeal contains a docket entry showing that “cause continued to May 17, 1974.” However, the transcript contains no evidence that any such hearing was ever conducted.

On the court’s own motion made March 2, 1977, and filed March 3, 1977 (§ 211.251 RSMo 1969; Rule 121.01, V.A.M.R.) the March 15, 1974, order, supra, was modified to give the parents visitation rights of the children under the supervision of the Division of Family Services. Then on November 7, 1977 (filed November 22, 1977), the court, again on its own motion and purporting to be acting under the just cited statute and rule, modified its orders of March 15, 1974, and March 2, 1977, by remanding immediate custody of the seven children to their parents under the continuing supervision of the Division of Family Services.

Under date of December 6, 1977, two motions for new trial were filed. One by Mildred Tool, describing herself as foster parent and next friend of one of the children; the other by Gary and Phyllis Gour-ley, describing themselves as foster parents and next friends of three of the children. Without knowing for certain, it is assumed from allegations made in the motions that the four children had been placed in the temporary custody of movants after they had been declared wards of the court in March 1974. On. December 7, 1977, mov-ants filed separate petitions for appointment as next friends and their consents to act as such. A docket entry dated February 1,1978, filed February 2,1978, declared the petitions for appointment of next friends and the motions for new trial “to be void and invalid and of no force and effect” because they were “filed by persons who have not heretofore applied for or been granted the right to intervene in the . . . matter, and further . . that said motions, even if valid, were filed out of time.” Following this, on February 17, 1978, movants moved the court to set aside the order of February 2, 1978, and to appoint them next friends of the four children. According to the transcript on appeal, a special judge on February 27, 1978 (sic) “set aside this Court’s order of December 7, 1977” (there was no such order) and on February 17,1978, issued orders appointing movants next friends of the minors “to file a motion for new trial and to prosecute said action in this cause.”

No action was taken on the motions for new trial nor were any such motions proffered for filing subsequent to February 17, 1978. On February 21, 1978, movants filed their notice of “appeal from the judgment entered in this action on the 22nd day of November, 1977.”

Even should we assume the validity and finality for appeal of the court’s November 22, 1977, order which remanded custody of the children to their parents, it must be remembered that Rule 120.01, V.A.M.R., and § 211.261 RSMo 1969, allow appeals to be taken on the part of juveniles only by their parent, guardian, legal custodian, spouse, relative or next friend if filed within thirty days after entry of final judgment. Parties who do not qualify in any of the enumerated relations to the children and who are not parties to the litigation at hand may not file motions for new trial [In re Main’s Estate, 236 Mo.App. 88, 99, 152 S.W.2d 696, 701[8] (1941)] nor prosecute an appeal. Ruddy v. Labar’s Estate, 241 Mo. App. 98, 101, 231 S.W.2d 833[1] (1950), and cases there cited. At the time Mildred Tool and the Gourleys filed their motions for new trial they were strangers to the proceeding. The time for appealing from the order of November 22, 1977, expired on December 22, 1977, and the court nisi did not undertake to appoint movants next friends of the four children until February 17,1978, or long past the time when a valid motion for new trial or notice of appeal could have been filed.

This court has no jurisdiction to undertake the appellate review of this matter. In accordance with the juvenile officer’s and parents’ joint motion to dismiss the appeal, the appeal must be, and hereby is, dismissed.

All concur, except FLANIGAN, J., not participating.

      . The transcript contains a petition filed March 24, 1976, by the juvenile officer to terminate parental rights and an answer thereto by the parents filed on January 27, 1977. § 211.441 et seq., RSMo 1969. However, the transcript nowhere reveals that any action was taken in respect to terminating parental rights. In fine, it appears this action was wholly abandoned or simply ignored.


author: HOGAN, Judge.

text:
    James E. WESTRICH and Elise C. Westrich, his wife, and Mary E. Burkart and Walter E. Burkart, her husband, Plaintiffs-Respondents, v. James GROVES and his Unknown Heirs, Grantees, Consorts and Successors, Defendant-Appellant.
    No. 10785.
    Missouri Court of Appeals, Springfield District.
    Aug. 23, 1978.

      Ted M. Henson, Jr., Scott & Henson, Poplar Bluff, for defendant-appellant.
    Robert M. Ramshur, Lorch & Ramshur, Piedmont, for plaintiffs-respondents.
    Before BILLINGS, C. J„ and HOGAN and TITUS, JJ.
   HOGAN, Judge.

This is a bench-tried action to determine interest and quiet title to realty brought pursuant to Rule 93, V.A.M.R. After hearing evidence and examining numerous exhibits, the Circuit Court of Wayne County found plaintiffs James E. Westrieh and Mary E. Burkart (plaintiffs) to be the fee simple owners of the tract involved, further found that none of the other parties had any right, title or interest therein, and accordingly quieted the title in James E. Westrieh and Mary E. Burkart as prescribed by Rule 93.06. Defendant James Groves (defendant) appeals.

Plaintiffs and defendant own adjoining farms in the southeast part of Wayne County near Williamsville. The parcel of land in dispute is a 6 to 7 acre tract, right-triangular in shape, which lies north and east of Black River between the two farms. In this court, defendant concedes that the plaintiffs are the record owners of the realty in question, but contends that he has acquired title by adverse possession.

We find the contention to be without merit. There is no argument about the principles which govern the case; as the defendant’s citations show, if a litigant proves possession of a tract of land which is: (1) hostile, i. e., under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for a period of ten years prior to the commencement of the action to perfect title by limitation under § 516.010, RSMo (1969), V.A.M.S., then he has proved the elements essential to the acquisition of title by adverse possession. Walker v. Walker, 509 S.W.2d 102, 106[1] (Mo.1974), and cases there cited. It is quite another thing to say, as the defendant argues, that the record taken as a whole requires the conclusion that he has acquired title to the disputed tract in that manner.

Defendant’s sole assignment of error is asserted as matter of fact. No point is made that the trial court erroneously declared or applied the law; the substance of defendant’s sole point on appeal is that the evidence mandates the conclusion that he has acquired title by adverse possession. In such circumstances, this court is remitted to a consideration whether or not, after reading the whole record, the court entertains a firm belief that the judgment or decree is wrong. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Given the diffuse and equivocal nature of the evidence in this case, and given the proposition that the credibility of the witnesses and weight of the evidence was a matter for the trial court, we cannot confidently say that the record before us generates any such firm belief. Cf. Crump v. McEwen, 473 S.W.2d 728, 732 (Mo.1971).

The judgment is affirmed pursuant to Rule 84.16(b), V.A.M.R.

All concur.

      . The admissibility of the exhibits was stipulated by counsel at a pretrial conference. Such stipulation did not, of course, amount to an admission of the legal effect of the exhibits; the legal effect of the exhibits so received was a matter for the trial court. See: Bartlett v. O’Donoghue, 72 Mo. 563, 564 (1880); C. McCormick, Evidence, § 54 (Cleary ed., 1972).


author: BILLINGS, Chief Judge.

text:
    In re MARRIAGE OF Gilbert ALLEN, Respondent, and Mary Allen, Appellant.
    No. 10538.
    Missouri Court of Appeals, Springfield District, En Banc.
    Aug. 23, 1978.
    Rodney E. Loomer, Turner, Reid & Duncan, Springfield, for respondent.
    David L. Smith, Woolsey, Fisher, Whi-teaker & Stenger, Springfield, for appellant.
   BILLINGS, Chief Judge.

Dissolution of marriage proceedings. Appellant-wife has appealed that part of the trial court’s decree ruling respondent-husband’s United States Coast Guard pension is not marital property and the amount of maintenance award to her.

The parties were married in 1953. Their only child was born in 1957. Husband was “retired” or “discharged” from the United States Coast Guard in 1962 after completing 20 years of service and began drawing “military pension, by reason of disability” in 1962. Periodic separations of the parties resulted in husband filing this suit in 1974 with trial and decree in 1976. The decree dissolved the marriage. The decree did not vest the custody of the child in either party but ordered husband to pay $200 per month as child support until the child married or was emancipated. Husband was ordered to pay wife $100 monthly as maintenance. The decree further provided that husband’s interest in any real property “he inherits or has inherited ... by reason of the terms of the revocable living trust agreement of [his mother]” was his sole and separate property and not marital property, and concluded that “[husband’s] interest in pension payments from the United States Coast Guard is his sole and separate property and not marital property.”

In this appeal the wife contends the husband’s pension, $488 monthly at time of trial, constitutes marital property under § 452.330, RSMo 1969, at least Vm’s of the pension qualifies as such property, and that she should be awarded a portion of the pension as marital property. Additionally, she complains the maintenance award to her is insufficient.

Although neither party has questioned our jurisdiction to entertain this appeal, jurisdiction cannot be conferred by waiver, silence, acquiescence, or consent, and we are obligated to sua sponte inquire into and determine whether we have jurisdiction. Corder v. Corder, 546 S.W.2d 798 (Mo.App.1977).

Section 452.330 mandates that in a dissolution proceeding the trial court set aside to each spouse his property and “shall divide the marital property in such proportions as the court deems just after considering all relevant factors . . . The statute further provides that “All property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation is presumed to be marital property regardless of whether title is held individually or by the spouses in some form of coownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection 2.”

The trial transcript shows that husband testified he had checking and savings accounts, owned a motor vehicle, and was the owner of two unidentified life insurance policies “totalling $7000” which had unknown cash values. The wife testified she was the owner of an automobile and household furniture. The decree was silent as to the foregoing items of property and under the statute they are “presumed to be marital property.”

Because the decree did not vest custody of the child in either party [Cradic v. Cradic, 544 S.W.2d 605 (Mo.App.1976)] and did not divide the marital property as required by Section 452.330, it is not a final judgment and not appealable. Corder v. Corder, supra.

The appeal is dismissed.

All concur, except FLANIGAN, J., not participating.

      . The record is not clear whether the payments to husband are benefits paid to service personnel retired for age or length of service pursuant to 10 U.S.C. ch. 63, 65, or for physical disability under 10 U.S.C. ch. 61. “Military retired pay”, rather than “pension” is suggested as proper terminology for the first category in “Community Property-Deferred Compensation: Disposition of Military Retired Pay Upon Dissolution of Marriage”, 50 Wash.L.Rev. 505 (1975).
      The Kansas City District in Daffin v. Daffin, 567 S.W.2d 672 (Mo.App.1978), held the husband’s “military pension” was marital property.


author: DAUGHTREY, Judge.

text:
    Joseph Lavonnie GLASSCOCK, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    March 23, 1978.
    Certiorari Denied by Supreme Court Aug. 28, 1978.
    J. B. Cobb and Janet L. Richards, Memphis, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert Grunow, Asst. Atty. Gen., Nashville, Henry P. Williams and Donald D. Strother, Asst. Dist. Attys. Gen., Memphis, for appellee.
   OPINION

DAUGHTREY, Judge.

This appeal represents a consolidation of two cases tried before separate juries in the Shelby County Criminal Court. At the first trial the defendant-appellant, Joseph La-vonnie Glasscock, was convicted of third degree burglary and received a sentence of six to ten years. Following a bifurcated hearing, the same jury found the defendant not to be an habitual criminal. At the second trial on an unrelated charge, Glas-scock was found guilty of grand larceny. In addition, he was found by the second jury to be an habitual criminal, and his six to ten year sentence for larceny was enhanced to a life sentence under T.C.A. § 40-2806.

On appeal from these two convictions, the defendant attacks (1) the constitutionality of the habitual criminal statute, (2) the validity of the imposition of a life sentence for recidivism at the second trial, on the basis of a claimed double jeopardy violation, and (3) the correctness of the trial court’s jury instructions. We find no merit to his assignments of error, and, accordingly, we affirm both convictions.

The courts of Tennessee have repeatedly held that the state’s habitual criminal statute does not violate the due process or equal protection provisions of the state and federal constitution; nor does its imposition result in cruel and unusual punishment. See, e. g., State ex rel. Ves v. Bomar, 213 Tenn. 487, 376 S.W.2d 446 (1964); Hobby v. State, 499 S.W.2d 956 (Tenn.Crim.App.1973). See also Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), holding that selective enforcement of recidivist statutes is not unconstitutional; cf. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). Since the statute is immune from constitutional attack such as that launched by this defendant, it follows that the trial court committed no error in refusing to order the taking of pre-trial interrogatories aimed at establishing selective enforcement of the habitual criminal statute; nor did the trial court err in refusing to allow voir dire of prospective jurors concerning their predilections toward the imposition of the mandatory life sentence required by T.C.A. § 40-2806. The related assignments of error are therefore overruled.

The defendant next argues that the judgment of the trial court in the second case finding him to be an habitual criminal and imposing a life sentence constitutes double jeopardy because he had been “acquitted” of being an habitual criminal at the first trial, under a count which recited the same prior convictions proved at the second trial as the basis for the jury’s determination of habitual criminality. We disagree with this analysis. The action of the first jury regarding the recidivist count did not operate to “acquit” the defendant of the underlying convictions recited in that count, and thus it did not bar the enumeration of those convictions in any subsequent recidivist count. Pearson v. State, 521 S.W.2d 225 (Tenn.1975). There was no double jeopardy violation, and the assignment is therefore overruled.

Finally, the defendant complains of the trial court’s refusal to charge three special requests related to his insanity defense. Much of the requested material was fully and correctly charged by the trial judge, with one exception. The defendant unsuccessfully requested the following jury instruction:

When a person charged with a criminal offense is acquitted of the charge on a verdict of not guilty by reason of insanity, the district attorney general may seek hospitalization of the defendant under [T.C.A.] § 33-603 or § 33-604 as appropriate, if he determines hospitalization to be justified.

The defendant insists that this instruction is mandatory as the result of the Tennessee Supreme Court’s opinion in Graham v. State, 547 S.W.2d 531 (Tenn.1977), in which the court adopted the Model Penal Code’s standard for the determination of insanity, making it applicable to all trials or re-trials beginning on or after the release of the Graham decision. It is true that in the course of its opinion, the Graham court did bemoan “a deficiency in Tennessee law relating to the disposition of a criminal defendant found not guilty by reason of insanity,” pointing out that “ ‘the district attorney-general may seek hospitalization’ ” of the defendant. 547 S.W.2d at 544. However, this language was clearly dicta and must be understood for what it was: a plea to the legislature to cure the deficiency identified in the opinion, i. e. the fact that the procedure in question is purely discretionary with the district attorney. Thus, nothing in the Graham opinion changes the court’s previous holding in Edwards v. State, 540 S.W.2d 641, 648-9 (Tenn.1976), to the effect that it is not error to refuse to charge a jury as to what the effect of a finding of not guilty by reason of insanity would be, because such a charge “is not relevant to the issue of . guilt or innocence,” and there are “so many options and alternatives available, depending upon the mental condition of the accused, it would be highly conjectural and would involve the jury in speculation as to what might happen to the accused.” We conclude that Edwards is controlling on the case before us, and we therefore overrule the defendant’s remaining assignments of error.

Finally, we note that in response to the Supreme Court’s plea in Graham v. State, supra, the legislature in 1977 amended the provisions of T.C.A. § 33-709 to require detention for diagnosis and evaluation of any defendant found not guilty by reason of insanity under T.C.A. § 40-2530. Under Subsection (e) of § 33-709, as amended, the jury must now be instructed in each case “in which the issue of insanity at the time of the commission of the offense is raised . . . that a verdict of not guilty by reason of insanity . . . shall result in automatic detention of the person so acquitted in a mental hospital or treatment center,” as provided by § 33-709(a). These amendments were not effective until May 28, 1977, however, and thus are not applicable to the trials in the defendant’s two cases, which occurred on March 3 and March 30, 1977.

The judgment of the trial court is affirmed.

WALKER, J., and ARTHUR C. FAQUIN, Jr., Special Judge, concur.


author: DWYER, Presiding Judge.

text:
    Curtis STEPHENY, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 8, 1978.
    Certiorari Denied by Supreme Court Aug. 28, 1978.

      Brooks McLemore, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, Alan E. Glenn and Kathleen D. Spruill, Asst. Dist. Attys. Gen., Memphis, for appel-lee.
    Bruce Kelley, Jr., Memphis, for appellant.
   OPINION

DWYER, Presiding Judge.

The appellant appeals with assignments of error his conviction for committing the offense of rape, T.C.A. 39-3701, with resulting confinement for twenty-three years. Derek Griffin, a co-defendant, made a motion to dismiss his appeal. It has been granted; therefore, his record is not before the court.

With assignments attacking the evidence we will summarize that evidence as found from our review of this record.

The prosecutrix, Barbara Gibbs, was an invitee to the home of the appellant located on Pillow Street in the City of Memphis on the evening of January 21, 1977. In testifying as a witness for the State, she related that she went to appellant’s house with her girl friend, Beverly McWilliams, and males named Derek Griffin, Michael Jones, and Dwayne Donald around 10:30 p. m. The males had told them there was to be a dance at that residence; that Jones left to get liquor and on his return the girls were offered liquor and marijuana; that appellant pulled her into a bedroom, ripped her jumpsuit, struck and kicked her and with Griffin holding her legs he raped her; that she was screaming and yelling and resisting and that Griffin then raped her and a man who had entered the bedroom named Noel raped her. Subsequently, the appellant walked her to Beverly’s home around 3:00 a. m., where she was then picked up by her father. After observing her physical condition Ms. Gibbs’ parents took her to a hospital.

The doctor who examined her, testifying for the State, related that she had two lacerations within her vaginal vault which he sutured.

The friend, Beverly McWilliams, testifying as a State’s witness, corroborated that appellant pulled Barbara into the bedroom and that Barbara was resisting and when she went to the aid of Barbara she was ejected from the bedroom by Griffin and Donald. This witness also testified that Donald was putting his hands all over her body and had pulled her pants down but desisted when Jones and Griffin came into the room; that when Barbara came to her house around 3:00 a. m. she was limping, her face was bruised and swollen and she was crying and told her she had been raped.

When the appellant was arrested at his home in February he was found hiding in the attic of his home and when the officer attempted to take him in custody, appellant fell through the ceiling; that the appellant then ran out the front door and was arrested by an officer on the outside.

The appellant did not testify and offered no proof.

His co-defendant at the joint trial, Derek Griffin, testified denying the rape and offered proof of good character. The other co-defendant, Donald, testified and denied the rape and seeing or hearing any assault on the prosecutrix by the appellant.

We think under the rule governing appellate review as delineated in McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963), the appellant has not shown here that the evidence preponderates against his guilt and in favor of his innocence. The victim’s testimony that she was raped, the friend’s testimony that she saw Barbara being assaulted, heard her yelling, saw her struggling when appellant had her on the bed, the bruises on the victim, the tears in the vaginal vault, are but a few of the overwhelming facts in this record which support the verdict. The evidence assignments are overruled.

The trial court, over objection, allowed the State to consolidate indictments, one of which accused the appellant, Griffin, and Donald with committing the offense of rape; another accusing appellant and Donald with committing the offense of abduction; and lastly one accusing Donald of assault and battery with intent to ravish.

The jury found appellant guilty of rape with confinement for twenty-three years; the co-defendant Griffin guilty of assault and battery with intent to ravish with confinement of not less than five nor more than ten years; the jury acquitted appellant and Griffin of the remaining charges; and the jury acquitted Donald of all charges against him. These indictments were the outgrowth of the rape of Barbara Gibbs and the assault on Beverly McWil-liams in appellant’s home on the event date. We find no abuse of the trial court’s discretion in ordering consolidation where the issues and facts on all three charges are intertwined as here. State v. Henderson, 221 Tenn. 209, 213, 425 S.W.2d 616 (1967). This assignment is overruled.

His next assignment he contends the trial court erred in allowing into evidence the torn jumpsuit worn by the prosecutrix on the event evening. With his assignment being unbriefed it is without merit. Roberts v. State, 4 Tenn.Cr.App. 537, 474 S.W.2d 165 (1971), coupled with no abuse of the trial court’s discretion in its admission. Ritter v. State, 3 Tenn.Cr.App. 372, 462 S.W.2d 247 (1970). This assignment is overruled.

He next contends the trial court erred in allowing into evidence photographs depicting the facial bruises of the prosecu-trix taken four days after the event. With no objection, Hill v. State, 513 S.W.2d 142 (Tenn.Cr.App.1974), and the photographs being relevant as to force being employed, we find no merit in this assignment and it is overruled.

He assigns as error the allowance by the trial court the statement of Beverly McWilliams that the prosecutrix told her on the event night that she had been raped. With no objection, Hill v. State, supra, and no supporting authority, Roberts v. State, supra, there is no merit in this assignment. The quick report of such an act by the victim is, however, competent. Morris v. State, 532 S.W.2d 61 (Tenn.Cr.App.1975). This assignment is overruled.

The testimony of one of the arresting officers that the investigation revealed the appellant was in the house but could not be located, whether conclusory or hearsay, if error was harmless. T.C.A. 27-117.

With appellant obviously attempting to flee after he fell through the ceiling there was no error in the court charging on flight.

He assigns as error the trial court’s refusal to grant a motion for directed verdict after the State rested. With no supporting authority the assignment is without merit. Roberts v. State, supra. With ample evidence in the record as elucidated in our treatment overruling the evidence assignment, there was no error in the court denying the motion.

The appellant, with reliance on T.C.A. 37-233(b), contends that it was error for the trial court to allow the State to ask a character witness for Griffin, who further testified as to the good character of the appellant, if he knew that it was part of appellant’s reputation that he had been charged with various offenses in juvenile court. While this type interrogation is proper when adults are concerned, Crawford v. State, 197 Tenn. 411, 273 S.W.2d 689 (1954), it is, we think, of first impression here. With the questions not relating to the disposition of the juvenile or of evidence adduced against him, coupled with the court charging at the time that the jury was to only consider this as affecting the credibility of the witness and recharging this at the conclusion of all the proof, we find no violation of the statute. We think it would not be in harmony with the primary function of a trial as a truth finding expedition to allow the appellant’to present to a jury through character witnesses an unchallenged cloak of respectability and standing in the community when in fact that was not true. These assignments are overruled.

The judgment of the trial court is affirmed.

TATUM, J., and ARTHUR C. FAQUIN, Jr., Special Judge, concur.


author: TATUM, Judge.

text:
    Retona Jean FARMER and Billy Wayne Dyer, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 15, 1978.
    Certiorari Denied by Supreme Court as to Dyer Aug. 7, 1978.
    Certiorari Denied by Supreme Court as to Farmer Aug. 28, 1978.

      C. Randall Stone, Morristown, for Farmer.
    Greg W. Eichelman, Morristown, for Dyer.
    Brooks MeLemore, Jr., Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Nashville, Charles E. Fraley, Jr., Asst. Dist. Atty. Gen., Morristown, for appellee.
   OPINION

TATUM, Judge.

The appellants, Retona Jean Farmer and Billy Wayne Dyer, were convicted of grand larceny and the punishment for each was fixed at not less than five nor more than ten years in the State Penitentiary. The convictions are affirmed.

The appellants filed separate briefs and both assigned error that the trial judge erred in not allowing them to plead guilty upon a plea-bargain agreement with the State under the terms of which each defendant was to be sentenced to three years in the State Penitentiary. After the jury had been selected and sworn, but outside of their presence, the appellants each tendered a guilty plea to grand larceny. The trial judge then meticulously and thoroughly instructed the appellant, Dyer, in the presence of Farmer, in accordance with State v. Mackey, 553 S.W.2d 337 (Tenn.1977). After completing the Mackey instructions, the following was said:

THE COURT: All right, Mr. Dyer, based upon your waiver of jury trial, your plea of guilty and submission of the case to the court and based upon the proof, the Court in Case No. 77-CR-143 finds you guilty of Grand Larceny and sentences you to serve not less than (3) three nor more than (3) three years in the State Penitentiary and gives you credit for time served, taxes you with an additional $21.00 cost of the Criminal Injuries Compensation Fund and renders you infamous and you will be in the custody of the Sheriff at this time.
MR. DYER: Who can I ask some questions to?
THE COURT: You can ask me if you want to.
MR. DYER: I’d just like to give a statement. Just ask the lady who did everything. I didn’t do nothing. I could get on the desk up there and tell you I didn’t do nothing. I’m not wanting to do no three (3) three [sic] years for nothing that I didn’t do.
THE COURT: You can have a jury trial.
MR. FRALEY: You let the Judge set there and read all that to you and you said, “yes, yes, yes.”
MR. DYER: The truth about it is I really don’t understand what’s going on.
THE COURT: All right, lets let the jury try the case Mr. Eichelman. The Court will set aside, the guilty plea in this case.
MR. STONE: Your Honor, what about this Farmer case?
THE COURT: O. K. Are we going to have any similar problems, gentlemen? I’m not going to waste everybody’s time.
MR. FRALEY: There’s no use standing up here wasting everybody’s time. The lady needs to testify and get on back.
THE COURT: Miss Farmer, have you got any reservations about pleading guilty?
A. No.
Q. Are you guilty?
MISS FARMER: Yeah.
THE COURT: Did you do what you’re charged with doing and what you’re pleading guilty to?
MISS FARMER: Yeah, or I was there, put it that way.
THE COURT: Well, I don’t want to know if you were there or not cause we got a jury out here — .
MR. FRALEY: Let’s just try it, Your Honor, please. I, the agreement is off, they’re both going to be back on the writ and that’s what they’re trying to set us up for right now.
MR. STONE: Your Honor, she could explain what she meant by it.
MISS FARMER: No, that’s o. k. Just go ahead with the jury.
THE COURT: If you want to plea [sic] guilty, I’ll except [sic] a guilty plea but I cannot do it with reservation. You are either guilty of the offense or you’re not guilty of the offense. What do you have to say?
MISS FARMER: I’m guilty of being there. But I didn’t take the gun, no and I did not take no knives. I don’t even remember that.
THE COURT: Well, it sounds like — . I don’t want these defendants to plea [sic] guilty if they insist they’re not guilty. Let’s let the jury try the case. That;s [sic] one way to determine for sure. Let’s go ahead and — o. k. let’s — let’s take that after we try the jury case. These jurors have been out here for an hour. We’ll take it on the heels of this jury case. Mr. Bailiff, I’ll again instruct you when you’re to bring the jury in to handle this microphone. [Emphasis supplied.]

Both appellants contend that they have an absolute right to have a guilty plea accepted. They rely upon North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), which holds that there is no constitutional error in accepting a guilty plea containing a protestation of innocence when the defendant had intelligently concluded that his interest required making a plea of guilty. But, Alford also holds that one must “voluntarily, knowingly, and understanding^ consent to the imposition of a prison sentence” when protesting innocence while pleading guilty.

Stricter standards have been adopted by the Tennessee Supreme Court than those required by the Federal Court. Before a Tennessee court can accept a guilty plea, the court must determine that it is voluntarily given by a defendant with understanding of the nature of the plea and its consequences. After the acceptance of a guilty plea, a court may not enter a judgment upon the plea without making such inquiry as shall satisfy it that there is a factual basis for the plea. State v. Mackey, supra.

We hold that the trial judge did not err in refusing to accept the guilty pleas of these defendants. The guilty pleas were not valid. After pleading guilty, Dyer not only proclaimed his innocence, but protested the imposition of a prison sentence upon the guilty plea and stated that he did not understand the plea. Farmer protested her innocence and requested the trial judge to proceed when the jury trial. There was no showing of a “factual basis” for either guilty plea. The proffered guilty pleas did not meet the standards of either Alford or Mackey.

Finding no error, we affirm both judgments of the Criminal Court.

WALKER and DUNCAN, JJ., concur.

      .Footnote 11 in Alford says:
      Our holding does not mean that a trial judge must accept every constitutionally valid guilty plea merely because a defendant wishes so to plead. A criminal defendant does not have an absolute right under the constitution to have his guilty plea accepted by the court, although the States may by statute or otherwise confer such a right. Likewise, the States may bar their courts from accepting guilty pleas from any defendants who assert their innocence.

      . Federal Rule of Criminal Procedure 11 also requires a “factual basis” for a guilty plea.

      . The record does not require a determination of whether the trial judge must accept a guilty plea from one protesting innocence.