text:
    STATE of Missouri, Respondent, v. Ronald Dean BATES, Appellant.
    No. KCD 27898.
    Missouri Court of Appeals, Kansas City District.
    Aug. 2, 1976.
    Motion for Rehearing and/or Transfer Denied Aug. 30, 1976.
    Thomas M. Larson, Public Defender, E. L. Messina, Asst. Public Defender, Kansas City, for appellant.

      John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

The appellant (hereafter defendant) was charged in an indictment in two counts, of Robbery First Degree. The second count was dismissed by the state and the defendant proceeded to trial before a jury. The jury found him guilty and assessed his punishment at ten (10) years. After his motion for a new trial was overruled, he was given allocution, sentenced, and prosecutes this timely appeal.

The defendant raises two assignments of error: First, that the court erred in admitting certain state’s exhibits and testimony relating thereto, for the reason that said exhibits and testimony were admitted after a timely motion to suppress and over objection, and were the product of an illegal search and seizure; and second, the court erred in admitting State’s Exhibits 8a, 8b, 8c and 8d, four .38 caliber bullets, for the reason that these exhibits were highly inflammatory, which fact outweighed any relevance or materiality they might have had with respect to any issues in the case.

Before trial, the defendant filed a motion to suppress one piece of evidence, to-wit, a black billfold, the property of the defendant. During the pretrial hearing on this motion, defense counsel was permitted to orally amend the motion to include the other exhibits which are the subject of the first assignment of error. All of these exhibits, eight in number, were found by law enforcement officials in an automobile in which defendant was riding when he was arrested. These exhibits by number, general description, and place in the automobile where each was found, are as follows:

Exhibit No. 1 Black billfold or wallet owned by defendant and found in the unlocked glove compartment.
Exhibit No. 2 Nylon stocking, knotted near the foot, found above left front sun visor.
Exhibit No. 3 Withdrawal slip from a class, Longview Community College, name of Sam Levine, found on right front floorboard.
Exhibit No. 4 Letter from Longview Community College to Sam Levine found on right front floorboard.
Exhibit No. 5 List of names and telephone numbers which secretary had taken down for Sam Levine, found on right front floorboard.
Exhibit No. 7 Bullet, found in the back of the right rear seat.
Exhibit No. 13 Stocking cap. Record is not clear as to where this was found.
Exhibit No. 14 Photograph of two key rings and keys — Officer Peterson stated that these were found in the automobile and in plain view and were photographed and returned to Sam Levine.

At the conclusion of the pretrial hearing, the motion to suppress this evidence was overruled.

The record on appeal reveals that on October 12, 1974, shortly before 9:00 p. m., Max Levine, owner of the Sunshine Market at 2126 East 39th Street (39th and Brooklyn), Kansas City, Missouri, his son, Sam Levine, and an employee were preparing to close the store. Three black males entered the store and two of them carried guns. Max Levine and the employee were forced to lie on the floor; the robbers were unable to open the cash register and thereupon forced Max Levine to open it; when he did so, a burglar alarm was activated; one of the robbers took the paper money from the register; they took Sam Levine’s billfold and two sets of keys from his person, and fled the store. At a police lineup a short time after the robbery, both Max and Sam Levine identified a man, other than defendant, as being one of the participants in the robbery. Neither could identify the defendant at the lineup or at trial.

The testimony of the police officers involved in this matter (substantially the same at both the hearing on the motion to suppress and at the trial) revealed that Officers Halteman and Florea were together in a police vehicle in the vicinity of 43rd and Lydia-at approximately 9:00 p. m. on October 12, 1974, when they received a radio dispatch that there was a “robbery alarm” at the Sunshine Market. They immediately started toward the Sunshine Market and while their vehicle was headed north on Woodland (in approximately the 4000 block), Halteman observed a four-door white vinyl over green Cadillac automobile headed south on Woodland, away from the vicinity of the market, at a speed of 40-45 m.p.h. He observed a man in the back seat of the Cadillac wearing a stocking cap or ski mask “pulled down to his eyes” and because this Cadillac was “leaving the scene of the robbery” speeding, and the occupants looked “apprehensive”, Halteman turned the police vehicle around and started to pursue the Cadillac. At about 43rd and Woodland, the police turned on the red lights, siren and spotlight, and adjusted the headlights to high beam. The Cadillac thereupon speeded up and traveled about three more blocks and headed back north. At 40th and Michigan, the driver of the Cadillac stopped it in the middle of the intersection and fled on foot. Halteman chased this man, caught him, and placed him under arrest. In the meantime, Officer Florea with pistol drawn “apprehended” the remaining two occupants of the Cadillac who were still seated therein. One of these was the defendant, although there is some conflict in the evidence as to whether he was seated in the front or back seat.

The three men under arrest were taken to police headquarters and the police had the Cadillac towed to the police garage at headquarters because it was a rainy night and a crowd was gathering. From the time the police first observed the Cadillac until sometime after its three occupants were taken into custody, the police had no description of the robbers of the Sunshine Market but only the information that a robbery alarm had sounded from that store.

In the search of the driver of the Cadillac following his apprehension, Officer Halte-man found four .38 caliber bullets (Exhibits 8a, 8b, 8c and 8d) the subject of defendant’s second point relied upon.

Donald E. Peterson, evidence technician for the Kansas City Police Department, processed the Cadillac automobile at the police garage beginning at about 9:30 p. m. on October 12, 1974. He had no search warrant. He testified he found the defendant’s billfold (Exhibit No. 1) in the unlocked glove compartment. He also found the other exhibits in the automobile, most of which were in plain view. When asked on cross-examination, “And what was your purpose in searching the glove box?”, he responded, “Ownership of the automobile. Any evidence available.”

James Glasgow, pastor of a church, testified that his car was parked in the 4000 block on Michigan while he visited with a family on that street. At around 9:00 p. m., he noticed a speeding car and heard a siren. He found that “a lot of papers (were) all over his car”, apparently held there by the rain. He also found a wallet and more papers near his car. There was an American Red Cross identification card in the wallet and some of the papers had the name of Levine on them. He turned the wallet and papers over to the police at the scene of the arrests, but apparently they were never offered as evidence.

Ronald D. Bates, the defendant, testified in his own behalf at both the hearing on the motion to suppress and at the trial.

In addition to his denial that he had in any way participated in the robbery of the Sunshine Market, he testified that on October 12, 1974, he was coming from his girl friend’s house on East 41st Street, on foot, en route to his grandmother’s house at 34th and Park; at around 40th or 41st and Woodland, he was given a ride in the Cadillac; that he sat on the back seat of the car on the left-hand side; that when he got in the car, there were three other men in the ear, so that he made the fourth occupant; that he had seen the other three men but did not know their names; that he had only been in the car about a minute when the police began chasing it; that when the siren and red light came on, the driver said he was not going to stop because he did not have a driver’s license; and that when the arrests were made, the fourth occupant of the Cadillac must have “vanished”. He also stated that his billfold was on his person when he was arrested and “patted down” and that it was taken by the police from his person and not from the glove compartment of the car. The record is silent as to the identity of the other two men arrested and as to the ownership of the Cadillac.

Sam Levine identified his billfold (secured by Rev. Glasgow), the papers and his two sets of keys, at the police station about 45 minutes after the robbery.

A resolution of defendant’s first assignment of error focuses attention upon two areas. It must first be determined if, upon this record, the defendant has standing to challenge the constitutional validity of the search of the Cadillac automobile and the seizure of the objects which constitute the exhibits described above. If he did not enjoy such standing, his first point must be ruled against him, regardless of the character or legality of the search and seizure.

Of course, defendant stoutly asserts that he did have standing to challenge the search and seizure and, to maintain that position, relies strongly upon the case of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). It is true that in Jones, the court discarded the distinctions theretofore drawn by the courts, in cases involving standing to complain of illegal search and seizure — denying such standing based upon the status of “guest”, “invitee”, “lessee” and “licensee”. The Jones court conferred such standing upon a person showing that he was himself the victim of an unlawful invasion of privacy by means of an unlawful search and seizure conducted in his presence, a rule which a later court denominated one of “automatic standing”. Jones involved a charge of possession of narcotics which were seized as a result of an unlawful search of an apartment in the presence of defendant but in which he was an invitee or guest only. His motion to suppress the evidence seized was denied because of his lack of standing. Under the then existing law, he. would have had to allege ownership or possession of the contraband and a possessory interest in the premises in order to attain standing to challenge the search and seizure, and thus take a position of incrimination and guilt of the very crime with which he was charged, which could then be used against him at a trial on the merits. On the other hand, if he failed to assert in his motion to suppress that he had an interest in the premises or the contraband, he lacked the prerequisite standing and the government could' use with impunity the fruits of the allegedly unlawful search and seizure. Upon this premise, the Jones court reasoned in holding that the defendant had standing without alleging ownership or possession.

This obvious “self-incrimination dilemma” was somewhat ameliorated in the case of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), which held that a prosecutor may not use against a defendant at trial any testimony given by that defendant at a pretrial hearing to establish standing to move to suppress evidence (88 S.Ct. at l.c. 973-976).

Likewise, the “automatic standing” rule of Jones v. United States, supra, was further refined and clarified in Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, l.c. 1569[1, 2], 36 L.Ed.2d 208 (1973), wherein the court said:

“ * * * there is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or pos-sessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure. * * * ”

This federal decisional formula is applicable and binding in the determination of the matter of defendant’s standing in the case at bar.

Nor is the present decisional law of Missouri in any conflict with Brown v. United States, supra, but is in accord therewith. In State v. Thompson, 490 S.W.2d 50, 51-52[1] (Mo.1973), the court held that a defendant had no standing to object to the search and seizure of a stolen automobile in which he was a passenger and in which he claimed no possessory interest. See also: State v. Ross, 507 S.W.2d 348, 353[3] (Mo.1974); State v. Achter, 512 S.W.2d 894, 899-900[5, 6, 7] (Mo.App.1974); State v. Browner, 514 S.W.2d 355, 356[1] (Mo.App.1974); State v. Hornbeck, 492 S.W.2d 802, 808[10, 12] (Mo.1973).

The defendant here strongly relies on In re J. R. M., 487 S.W.2d 502 (Mo. banc 1972). A careful reading of this decision discloses that it is clearly distinguishable on the facts from the case at bar. That case involved the search and seizure of an automobile owned by the defendant’s father. The evidence showed, however, that the defendant regularly had free use of the vehicle for his own purposes, retained a key to it, and was covered by insurance on the vehicle, and thus had at least a constructive possessory or proprietary interest in the “premises”. It should also be noted that In re J. R. M. was decided prior to Brown v. United States, supra, and is distinguished in subsequent Missouri decisions. See: State v. Thompson, supra, and State v. Browner, supra.

The point now under consideration must clearly be governed by the principles of Brown v. United States, supra, and the formula therein set forth must be applied. It should be noted that while the “premises” in Brown was an apartment and here an automobile, that fact does not weaken the force or logic of the rule nor requires the application of a different standard.

The search of the Cadillac automobile was not conducted in defendant’s presence and thus the first requirement (a) in Brown v. United States, supra, is not met. Further, it is apparent from the record that the defendant did not claim any proprietary or possessory interest in the automobile either in his original written motion to suppress, the oral amendment thereto, or in his testimony. Nor was such an interest shown from any other source. He, therefore, failed to meet the requirement (b) in Brown v. United States, supra.

Finally, the defendant was charged and tried for Robbery First Degree of the Sunshine Market and not for the possession of any of the evidence seized in the automobile search. Stated differently, possession of such evidence would not constitute an essential element of the offense charged against the defendant. He, therefore, fails to bring himself within the ambit of requirement (c) in Brown v. United States, supra.

The argument might be advanced (although it is not) that as to Exhibit No. 1, the defendant’s billfold, he had such an interest to confer standing to move to suppress that one exhibit. While some cases contain dicta that ownership of the seized evidence lends some color to support standing, the ultimate ruling in Brown v. United States, supra, did not make ownership of the evidence (as opposed to the premises) an element of the rule. Further, defendant’s billfold (Exhibit No. 1) in the case at bar merely tended to show his presence in the Cadillac, a fact which he admitted. The fact that it was his property does not alter the conclusion reached.

The defendant had no standing to support his motion to suppress the evidence seized in the search of the Cadillac automobile, and his first point is ruled against him.

In connection with defendant’s second point, it should be noted at the outset that he does not claim that the four bullets taken from the person of the driver of the Cadillac by Officer Halteman (Exhibits 8a, 8b, 8c and 8d) were irrelevant or immaterial to any of the issues. Rather, his objection and asserted assignment of error is couched in these rather obscure terms, namely, that the bullets:

“ * * * WERE HIGHLY INFLAMMATORY AND THEIR INFLAMMATORY NATURE OUTWEIGHED ANY RELEVANCE OR MATERIALITY THAT THEY MIGHT HAVE HAD WITH RESPECT TO THE ISSUES INVOLVED * * *” (Emphasis sup-, plied)

It would appear, therefore, that he tacitly admits that the bullets had some probative value but asks this court to weigh such value against the “inflammatory” and prejudicial effect of their admission as evidence.

That the bullets did constitute material and relevant evidence is clear. They were taken from the driver after he abandoned the Cadillac following the police chase and after he had attempted to escape on foot; defendant was admittedly in his company, in the automobile from which the driver fled just before this incident; and, the driver was apprehended just after the armed robbery at a place in the close vicinity of such robbery.

In State v. Small, 344 S.W.2d 49 (Mo.1961), the court held that it was not error to permit the introduction into evidence of six shotgun shells found on the person of defendant’s companion when both were apprehended in an automobile from which the defendant allegedly fired a fatal shotgun blast resulting in homicide. The court there said, l.c. 54[3]:

“ * * * But, relevancy and probative force aside, it may not be said that the admission of the spent shell or the 6 live shells found on Young was manifestly improper or inflammatory and therefore deprived the appellant of a fair trial * * * Ji

In Garton v. State, 454 S.W.2d 522, 529[7] (Mo.1970), the court refused to convict the trial court of error in admitting a shotgun and shells found in the automobile used by the defendant and alleged accomplices in an armed bank robbery, although such firearm and shells were not used in the robbery. See also: State v. Kitchen, 499 S.W.2d 572 (Mo.App.1973) and cases cited therein; State v. Moore, 501 S.W.2d 197 (Mo.App.1973).

It seems clear that under the record in this case the bullets taken from the driver were properly received in evidence, in that they constituted evidence relevant to the activities of the defendant and his companions just before the arrest. At least this evidence falls within the rule in State v. Tevis, 340 S.W.2d 415, 420[12] (Mo.App.1960), where the court said:

“ * * * Before evidence can be excluded on the ground that it is irrelevant, it is essential that it appear so beyond a doubt. If the question of relevancy is doubtful, the settled rule is that the evidence should go to the jury for their own evaluation of it. * * * ” (Emphasis supplied)

A corollary of this rule was recently expressed by this court in State v. Kerr, 531 S.W.2d 536, 542-543[15, 16] (Mo.App.1975), where it was held that in the absence of some showing that the receipt into evidence of four live bullets found upon the person of the defendant “inflamed the jury”, even though immaterial to the issues, fell within the rule that “admission of facts immaterial to the issues and without probative force cannot constitute prejudicial or reversible error.”

The record in this case shows that the introduction of the .38 caliber shells was done routinely without overemphasis or undue or repeated reference throughout the trial. Nothing in this record affords any support to a claim that the jury was inflamed or in any way prejudiced by this evidence or by any action or statement of the prosecutor with reference thereto.

The sole authority relied upon by the defendant on his second point is the case of State v. Merritt, 460 S.W.2d 591 (Mo.1970). This case is clearly distinguishable from the case at bar and is not authoritative here. In Merritt, it was held that it was error to permit the state to introduce into evidence in an assault with intent to kill prosecution, a handgun found in the snow near the scene of the shooting the following day. There was no showing that this gun was the one used in the assault or was in any way connected with the crime or with the defendant.

The defendant’s second point is ruled against him.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: PRITCHARD, Chief Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Joseph GILLUM, Appellant.
    No. KCD 28010.
    Missouri Court of Appeals, Kansas City District.
    Aug. 2, 1976.
    Motion for Rehearing and/or Transfer Denied Aug. 30, 1976.
    Thomas M. Larson, Public Defender, Sixteenth Judicial Circuit, E. L. Messina, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean> Asst Atty- Gen-> Jefferson City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

By the verdict of a jury appellant was convicted of the commission of the offense of kidnapping. Upon a finding of the commission of a prior felony, as alleged, the court sentenced appellant to eight years imprisonment in the Department of Corrections under the Second Offender Act.

The sole point presented is whether the trial court erred in failing to suppress evidence of appellant’s lineup identification, made upon the ground that lineup was conducted in such a prejudicial manner as to be in violation of appellant’s right of due process of law. Developed in argument, it is appellant’s position that when the victim viewed him in the lineup there were only two other individuals with him who varied considerably from him in physical appearance and age so as to present grave dangers of his misidentification. The point is without merit because the evidence shows that there was ample opportunity for the victim to view appellant during the course of the commission of the crime so as to give her in-court identification a source independent of the lineup identification.

The victim was abducted from the corner of 35th and Troost in Kansas City about 8:20 p. m., on November 25,1974. She was forced into the back seat of a Chevrolet Malibu automobile after which the car was driven around for 20 minutes. It was then stopped in “the bottoms” for about 20 to 25 minutes at which time the victim was subjected to an attempted rape. During the pre-trial hearing of appellant’s motion to suppress, the victim testified that on being driven to and from “the bottoms”, she was seated in the back seat of the car from which she could see the driver from the side, and he had short hair, a mustache and a beard or goatee. At “the bottoms” the victim, according to her testimony at trial, was put into the front seat of the car between the driver and the passenger. At that time she looked appellant directly in the face as he looked at her while he was just inches away. She got a good look at him and had no trouble seeing his face regardless of the lighting conditions (described as being from a little light on top of a barn about a half of a city block from where the car was located). Her testimony was precisely: “Q (By Mr. Bressel) Did you get a good look at the defendant at the time that he had stopped that vehicle in the Bottoms area at that deserted location? A Yes, I did. Q He was still driving? A Yes. * * * A Right, and after I was in the front in between both of them, he looked at me for a long time, looked at my eyes. Q And did you look back at him? A Yes, I was looking at him, too. Q How far from him, in your best judgment, were you? A I was touching him. I was sitting right next to him. * * * ”

The victim positively identified appellant as her abductor and assailant not only in the course of the trial but during the hearing of the pre-trial motion to suppress, and in the lineup. On cross-examination (by the state) she testified on the motion to suppress: “Q Miss —, do you recognize this man here at the counsel table? A Yes. Q And do you recognize him from the events that took place on November 25th? A Right. Q He is one of the persons, the driver of the car in which you were abducted? A Yes.” On November 26th, the day after the abduction, the victim went to the police station to view a lineup. Nothing in particular was said to her by the officers. Of the three persons she observed in the lineup she picked out appellant.

The variance in physical appearances of the three persons in the lineup which appellant says presented grave danger of misidentification of him were these: Appellant was described by the officer conducting the lineup as being a Negro male, 38 years old, about six feet tall and of heavy build. The No. 1 man was a Negro male, 27 years of age, 5 feet 8 inches tall, weight 175 pounds, and who had a mustache and beard. The third individual was a Negro male, 21 years of age, 5 feet 9 inches tall, 130 pounds, and who had a mustache and goatee. The two persons in the lineup with appellant were the only ones then available to the officer. As was stated in State v. Tomizoli, 519 S.W.2d 713, 715[1] (Mo.App.1975), “It is obviously impossible for the police department to arrange a line-up consisting of persons who all have exactly the same physical characteristics or whom may be wearing the same color and style of clothing as described by the victim of a crime.” See also Gaitan v. State, 464 S.W.2d 33, 35[3, 4] (Mo.1971). There is no contention here that the officer conducting the lineup made any direct suggestion to the victim that among the persons she was to view was her abductor. The mere dissimilarity in the physical appearances of the men in the lineup is insufficient to show an impermissible suggestiveness. See Gañan, supra, involving a two-man lineup. Significant here upon the issue of appellant’s claimed possibility of mis-identification is the short time interval, one day, between the abduction and the view of appellant in the lineup, so that the victim’s memory of appellant’s appearance as she looked at him closely during the course of abduction was fresh. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

The evidence above related shows clearly that the victim’s in-court identification of appellant had a source independent of the lineup. Sitting closely to him in the front seat of the car she had ample opportunity to view, and she did view, his features from a distance of just inches away. And even though the composition of appellant’s lineup might not be the most desirable, any imperfection in it is removed by the victim’s untainted in-court identification. State v. Jordan, 506 S.W.2d 74, 81[11-14] (Mo.App.1974); State v. Gay, 523 S.W.2d 138, 142 (Mo.App.1975); State v. Rutledge, 524 S.W.2d 449, 456[5] (Mo.App.1975); and see also State v. Tidwell, 500 S.W.2d 329 (Mo.App.1973), although there are here no conflicts in the evidence as to the victim’s opportunity to observe appellant during the course of the abduction.

The judgment is affirmed.

All concur.


author: SWOFFORD, Judge.

text:
    STATE of Missouri, Respondent, v. Terry CONGER, Appellant.
    No. KCD 28075.
    Missouri Court of Appeals, Kansas City District.
    Aug. 2, 1976.
    Motion for Rehearing and/or Transfer Denied Aug. 30, 1976.
    Thomas M. Larson, Public Defender, E. L. Messina, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

Appellant (hereafter defendant), then 19 years of age, was charged under an amended information with Burglary Second Degree and Stealing, under the Second Offender Act; was found guilty by a jury; and, was sentenced to ten (10) years for the offense of burglary and five (5) years for the offense of stealing, said sentences imposed to run concurrently.

His sole point on appeal is that the trial court erred in overruling an objection to portions of the prosecutor’s closing argument to the jury, which he confidently asserts was “grossly and blatantly” prejudicial, in that such argument implied that the state was not required to bear the burden of proving defendant’s guilt beyond a reasonable doubt. Only a brief summary of the facts is necessary.

At approximately 2:00 o’clock a. m. on the morning of October 20, 1974, in response to an alarm call, several police officers went to the Robert Hall Clothing Store at 4321 Truman Road, Kansas City, Missouri. Mr. Henderson, assistant manager of the store, testified that on the evening of October 19, 1974, he had locked the front and back doors of the store and a chain link fence around the premises. Upon receiving advice of the alarm, he proceeded to the scene.

Officer Angelo and another officer were inspecting the exterior of the store when they were advised by a police helicopter that there was a hole in the roof of the building. Going to the roof, Angelo’s police partner found the hole and apprehended a juvenile girl, Yolanda Conger, sister of the defendant. Thereafter, Officer Angelo apprehended the defendant and four other youths, who came from a storage room, inside and in the back of the store, and surrendered. They found various items of clothing valued at approximately $200.00 piled inside the store near a rear door. Additional clothing was retrieved by the police from the roof.

Yolanda Conger testified for the defense. In substance, she stated that the defendant, her brother, did not participate in the planning of the burglary or when it was actually committed, but was at the store to induce her and a younger brother of the defendant to stop their participation in the venture and leave the scene.

Reduced to essentials, the defendant urges a reversal of these convictions upon the basis that a short passage in the prosecutor’s closing argument to the jury improperly advised the jury that the burden was not on the state to show defendant’s guilt beyond a reasonable doubt. Review of this assignment of error requires the application of certain well-defined principles and guidelines.

The trial court enjoys wide discretion in determining the latitude or permissible scope of counsel’s arguments to the jury, and unless a clear abuse of such discretion appears, to the prejudice of the accused, the case will not be reversed on appeal. State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582, 588[11] (banc 1950); State v. Hutchinson, 458 S.W.2d 553, 556[4] (Mo. banc 1970); State v. Spears, 505 S.W.2d 92, 94[2] (Mo.1974). In applying this standard, it is incumbent upon the appellate court not to consider only the isolated words of the argument claimed to be reversibly erroneous, but rather, to consider such argument in the context of the court’s instructions to the jury, the defense argument as a whole, and the argument of the prosecutor. State v. Bailey, 526 S.W.2d 40, 42[2] (Mo.App.1975).

When so viewed, the argument of the prosecutor here did not accomplish the prejudicial results claimed by defendant.

The chronology of the pertinent facts within the scope of the above principles is as follows:

The court gave Instruction No. 3 on burden of proof and presumption of innocence, in which the jury was clearly and properly told that the defendant was presumed to be innocent, which presumption “places upon the state the burden of proving beyond a reasonable doubt that the defendant is guilty.” In Instruction No. 9, the court advised the jury as to the function of closing arguments, but strongly admonished the jury they were to be governed by the evidence “and the law as given in these instructions.”

In the state’s opening argument to the jury, reference was clearly made to the instructions, that such instructions would be available for study during jury deliberations and that they reflected the law of the case.

Counsel for the defense in his argument to the jury forcibly and consistent with his able conduct of the defense, again admonished the jury that it was the continuing burden of the state to prove the defendant’s guilt beyond a reasonable doubt, and that such burden is:

“ * * * never on the defendant, and never shifts to the defendant at all during the entire proceedings. In a criminal case the defendant, in this case, Terry Conger, doesn’t have to prove anything. He doesn’t have to demonstrate his innocence. The state has to demonstrate his guilt.”

Defense counsel proceeded in his argument, in the best traditions of the bar, to argue to the jury the areas of the evidence where a reasonable doubt existed. As his peroration, he stated:

“I submit to you, ladies and gentlemen, that there is reasonable doubt in this case. The State hasn’t carried its burden of proving Terry Conger guilty beyond a reasonable doubt. What they have done is they have established some suspicious circumstances here. They placed Terry Conger in a suspicious situation, but he isn’t charged with being involved in suspicious circumstances. Indeed, he can’t be. That’s not a crime at all. He is charged with the substantive offense of second degree burglary and stealing, and I submit to you that there is, indeed there is reasonable doubt that he did, in fact, participate in an effort to achieve those two offenses.
⅜ ⅝: ⅜ ⅜ ⅜ *
As I said, I don’t believe, I don’t think the State has carried its burden in this case, and as we discussed earlier, when the State doesn’t carry the burden of proving a defendant guilty beyond a reasonable doubt, you, as jurors, have to acquit, that is, find not guilty the defendant. That’s the situation we’re in today with Terry Conger. There hasn’t been sufficient evidence presented here to establish that he did, in fact, participate in this offense. * * * it

As has been heretofore noted, this argument was a proper and, indeed, valiant effort on the part of defense counsel to cast a doubt in the minds of the jury as to whether or not the state had met its recognized burden of proving defendant guilty of the crimes charged against him beyond a reasonable doubt.

However, the state, through the prosecuting attorney, could not be any rule of law or trial tactic be expected to remain mute and permit such argument to go unanswered. The prosecutor’s duty compelled a permissible reply. He stated (and this argument by the prosecutor forms the sole basis for defendant’s claim of reversible error):

“You know, they use this reasonable doubt and every word of it is true. The State has to prove beyond a reasonable doubt the guilt of the defendant and the defendants use that to muddy the waters in every—
MR. BLOEMKER: Well, now, wait a minute. I object to that. There has been absolutely no evidence in this trial as to what defendants do with reasonable doubt.
THE COURT: Your objection is overruled. Go ahead.
MR. HOGSETT (prosecutor): They use that to muddy the waters and try to convince a jury or somebody on that jury that there is reasonable doubt.” (Emphasis supplied)

To say the least, this argument and objection are obscure. It can reasonably be said, however, that the prosecutor’s argument was a fair response to defense counsel’s argument that there was reasonable doubt as to the defendant’s guilt based upon “suspicious circumstances” and presumably the testimony of Yolanda Conger. Further, the prosecutor in this short exchange twice acknowledged the state’s burden of proof in clear and precise language. In the light of these statements of the prosecutor, the court’s instructions, and, indeed, the argument of defense counsel, the jury could not possibly have been misled as to the law on burden of proof. State v. Rodgers, 525 S.W.2d 447, 449[3, 4] (Mo.App.1975). The trial court did not abuse its discretion in overruling the defense objection.

The cases cited by defendant in support of his position have been carefully reviewed and are found not to be authoritative here.

The judgment is affirmed.

All concur.


author: TURNAGE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Tommy RANSBURG, Appellant.
    No. KCD 28174.
    Missouri Court of Appeals, Kansas City District.
    Aug. 2, 1976.
    Motion for Rehearing and/or Transfer Denied Aug. 30, 1976.
    Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

This appeal follows the conviction of Tommie Ransburg by a jury of robbery first degree (Section 560.135, RSMo 1969). By reason of the invocation of the Second Offender Act, the court pronounced sentence of twenty years confinement.

On this appeal, Ransburg raises a question concerning the failure of the court to excuse several veniremen for cause and the refusal of the court to allow counsel to argue the non-production of a witness. Finding no error, the judgment is affirmed.

As indicated, Ransburg raises no question concerning the sufficiency of the evidence. Suffice it to say he and the two other males were arrested inside a grocery store during an armed robbery.

The point relating to the challenge for cause of certain veniremen arose from the following:

MR. HARDING [Defense Counsel]: * * Now, in a criminal case, at least in America, the defendant need not take the stand. As I mentioned before, he is presumed innocent. Is there any member of the panel, and I haven’t yet decided whether we’ll call Mr. Ransburg as a witness, but is there any member of the panel who would regard Mr. Ransburg’s failure to testify as some admission of his guilt?
(One venireman answered in the affirmative and was stricken for cause by the court.)
MR. HARDING: Does anyone else feel that way? Yes, sir, I’m sorry?
MR. MONROE E. McDONALD: I think the man should testify. My name is McDonald. I think any man should testify in his own behalf and in his own defense.
MR. HARDING: You feel he should challenge his accusers?
MR. McDONALD: I think the jury is entitled to face him.
MR. HARDING: Thank you. Anyone else? Please speak up, because it’s important to know how you feel about a criminal case. Does anyone feel that way? Mr. Katz?
MR. KATZ: I think I’d be forced to wonder why he did not speak up.
MR. HARDING: All right sir. Thank you.
MR. NOVAK: I’d feel that way, too.
MR. JOSEPH H. KELLY: Joseph H. Kelly. I believe I would, too.
MR. HARDING: We’re having an epidemic here. Okay. Now let me direct a question to you gentlemen who have raised your hands. Would this feeling that you have, that a person must challenge his accusers, that he must take the stand, and remembering that under the law he is not required to, but would this feeling cause you to have difficulty in rendering a fair and impartial decision in ■this case? Mr. Kelly?
MR. KELLY: I don’t think so, no But—
MR. HARDING: Mr. McDonald?
MR. McDONALD: I believe if I heard the man’s voice and his actions under questions by the attorneys and the State, I think I could come nearer to rendering a fair decision as to his guilt or innocence.
MR. HARDING: All right. Thank you. And Mr. Novak?
MR. NOVAK: That’s about the way I think. [T. 45-iT]
⅜ ⅝ ⅜ ⅝ ⅜ ⅜
MR. HUMPHREY [Prosecutor]: Okay. Mr. McDonald, in connection with the question asked by the defense counsel about whether or not the defendant testified, you understand that the law is that as a juror, you can draw no inference from that?
MR. McDONALD: That’s right.
MR. HUMPHREY: Would you be able to follow the law that this Judge gives you as to that subject?
MR. McDONALD: I think that I could decide the evidence — I mean, I believe I could establish to my own satisfaction the man’s guilt or innocence by the evidence presented against him.
MR. HUMPHREY: Whether or not he testified?
MR. McDONALD: Right. Whether or not he did. It would just help a lot if he did.
MR. HUMPHREY: And you’d be able to follow the instructions of the Court, then, that you are to draw no inference from the fact that he does or does not testify?
MR. MCDONALD: Yes, sir.

The point stated in the brief claims the court erred in refusing to strike several veniremen because they testified they believed the accused should take the stand to challenge his accusers. In the argument portion of the brief, it seems to be contended the portion of the voir dire of these veniremen, quoted above, shows a prejudice on their part against Ransburg. From this he argues he was denied a panel of qualified jurors from which to make his strikes.

The parties have stipulated the State struck venireman Kelly with one of its peremptory strikes. The defendant struck veniremen McDonald, Novak and Katz.

It is unquestioned the defendant is entitled to a full panel of qualified jurors before he makes his peremptory challenges. State v. Cuckovich, 485 S.W.2d 16 (Mo. banc 1972).

It is fundamental, of course, that the object of the voir dire examination of a venireman is to determine if he would be fair and impartial if chosen as a juror. State v. Harris, 425 S.W.2d 148, 155[8] (Mo.1968). The court in Harris, at the same citation, stated:

“The challenge for cause,, on the ground stated, was directed to the sound discretion of the trial court. That court has a wide discretion in determining the qualifications of a venireman and its decision thereon should not be disturbed except for a clear abuse of discretion.”

This court must also acknowledge the trial court is in a much better position to judge the attitude and demeanor of individual veniremen and to pass on their qualifications than is possible for this court to do by examining a transcript. However, it is necessary for this court to review the examination of veniremen to determine if the trial court did abuse its discretion in failing to excuse for cause those veniremen attacked in this case.

In reviewing the examination set forth above, it is to be noted none of the veniremen indicated any feeling or inclination concerning Ransburg’s guilt if he failed to testify. In fact, the first question posed by defense counsel, directed to the subject of the defendant testifying, concerned any admission of guilt on a failure to testify. The venireman who said he would consider-this an admission of.guilt was stricken. None of the remaining panel members stated they would draw any admission of guilt from a failure of the defendant to testify. None of the comments made by the veniremen quoted indicate any bias or prejudice against Ransburg nor do they indicate the formation of opinions which would preclude a fair and impartial consideration of the evidence. Rather, these expressions are to be attributed to conscientious citizens who take their service on juries seriously.

Further, it should be noted that after Mr. McDonald stated he thought Ransburg should testify, he readily agreed no inference could be drawn based on whether or not the defendant would testify. He also indicated he could decide the question of guilt or innocence based on the evidence, whether or not Ransburg did testify.

Persons approaching the serious task of serving on a jury with a sincere desire to find the truth are to be expected to feel they could more nearly reach a fair and just verdict if they heard the accused testify and saw his action under cross-examination. However, the desire for as much evidence and testimony as possible as an aid to arriving at a correct verdict is not to be confused with a closed mind. Nor does this attitude evidence a feeling that failure to testify is an admission of guilt. Not one of the veniremen under attack answered the specific question on that subject in the affirmative.

The examination, rather than showing prejudice, reveals a desire to reach the truth and to come to a fair and impartial conclusion in the case being entrusted to the judgment of these men if they were ultimately chosen to serve on the jury. The conclusion is inescapable to this court that the above examination shows a conscientious desire to have as much information as possible in order to arrive at a fair verdict rather than any prejudice or preconceived notions of Ransburg’s guilt. Ransburg does not contend the court erred with reference to any one venireman, but a review of the entire examination fails to convince this court the trial court abused its discretion in refusing to strike the veniremen involved in the above examination for cause.

Ransburg relies upon State v. Lovell, 506 S.W.2d 441 (Mo. banc 1974) and State v. Scott, 482 S.W.2d 727 (Mo. banc 1972). In Lovell the voir dire revealed a lack of impartiality and the court held the trial judge deferred to the venireman’s own judgment of his qualifications. In Scott the venireman stated he would hold it against the defendant if he did not testify. Neither case is applicable to the facts of this case. Nor does this case present veniremen who could not say they would impartially try the case as was found in State v. Thompson, 541 S.W.2d 16 (1976). Here the essence of the examination was a feeling of fairness and a desire to reach a fair verdict.

The final point urged related to an argument made by Ransburg’s counsel in which he commented on the failure of the State to call a woman customer in the store as a witness. The two owners of the store testified they were present, along with two women customers, when three men entered for the purpose of committing a robbery. Ransburg bases his argument on the fact the prosecutor in exercising due diligence could have learned the identity of at least one of these women and thereby arrives at the conclusion the woman was more available to the State than she was to the defense. Ignoring what may be obvious answers to this argument, such as the right of defense counsel to conduct discovery to determine the identity of the woman, this point may be disposed of by concluding the evidence of this woman customer would have been purely cumulative to the testimony of the two owners. Thus, even if it may be said, which is not decided, that the woman was more available to the State than to the defense, still, since the testimony would only be cumulative, there is no right on the defense to comment on the failure of the prosecution to call such witness. State v. Davis, 504 S.W.2d 221 (Mo.App.1973).

The judgment is affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    Clara A. COFFMAN, Appellant, v. The KANSAS CITY STOCK YARDS COMPANY OF MAINE, Respondent.
    No. KCD 27326.
    Missouri Court of Appeals, Kansas City District.
    Aug. 2, 1976.
    Rehearing Denied Aug. 30, 1976.

      Michael J. Albano, Independence, for appellant.
    Joe W. Coleman, Leonard A. O’Neal, Kansas City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Clara A. Coffman sued The Kansas City Stock Yards Company of Maine for $75,000 damages for personal injuries sustained by her while employed by the Stock Yards Company. A jury returned a verdict for plaintiff for $15,000. The trial court sustained defendant’s motion to set aside the verdict and enter judgment for defendant. Plaintiff appealed from the judgment so entered.

The Stock Yards Company was the owner and manager of the nine-floor Livestock Exchange Building located in Kansas City, Missouri. In November, 1969, Ms. Coffman was employed by Stock Yards as a night janitress at the Exchange Building. Sometime prior to September 14, 1970, she was given the job of night mop man.

On September 14, 1970, Ms. Coffman, then 54 years of age, came to work at around 4:30 to 5:00 P.M. She entered the lobby of the building and took one of a bank of three automatic elevators to the fifth floor of the building where she prepared her mop and bucket and placed it in front of one of a bank of three manually operated elevators. She then took an automatic elevator and returned to the first floor. She planned, in accordance with her usual practice, to open the door to one of the manually operated elevators, take that elevator back to the fifth floor, get her bucket and mop, and then go to the various floors of the building where she performed her work.

Only employees of Stock Yards had access to the manually operated elevators. At the first and ninth floors the exterior doors of the elevator shaft could be opened by inserting a lunar key in a keyhole in the door and pushing upward to release the lock. The door could then be opened, regardless of the location of the elevator car. The doors could not be opened from the exterior on the second to eighth floors, there being no keyholes in the doors on those floors. The manually operated elevators had no devices showing the location of the elevator car.

When Ms. Coffman reached the first floor, she got the elevator door key from a wall safe around the corner from the elevators. The keyhole was in the upper part of the door and Ms. Coffman sometimes had difficulty in pushing the key up to release the lock. On this occasion, she asked an employee of a tenant to assist her. Whether or not he did anything to assist was not clear. He said he did nothing. She said that he pushed up on the key, releasing the lock and the door opened enough for her to get her hand in and push the door open, preparatory to entering the elevator car and turning on the light. Ms. Coffman thanked the man and stepped through the door. However, the elevator car was not at that level and she fell to the bottom of the elevator shaft, some six feet below the floor level. The nature and extent of her injuries are not here important.

In her petition seeking damages for her injuries, plaintiff alleged that defendant was negligent in failing to provide a safe place for her to work in several particulars. At the trial her claim was submitted on the single specification that defendant failed to provide a reasonably safe place to work “by failing to provide a device to prevent the opening of the door to the elevator shaft when the elevator was at a different floor location * * *.”

In sustaining defendant’s motion for judgment following the verdict in favor of plaintiff, the trial court in its memorandum stated:

“There was no evidence as to whether any device existed of the kind hypothesized in plaintiff’s verdict director. Nor was there any evidence as to its availability, cost or usage.”

On this appeal, appellant has advanced several general propositions, some of which are uncontroverted. It is conceded that respondent has elected to reject the Missouri Workmen’s Compensation Law. Such rejection does deprive the employer in an action such as this of certain common law defenses, as specified in § 287.080, RSMo 1969. However, respondent has not attempted to assert any of those defenses. Appellant’s burden of proving negligence on the part of the employer is not affected by respondent’s rejection of the Workmen’s Compensation Law.

Respondent, from an abundance of caution and from what it perceives as a lack of certainty about appellant’s contentions on appeal, has briefed at length not only the question of the grounds of negligence submitted at trial, but also all those alleged in plaintiff’s third amended petition upon which the cause was tried. The claimed deficiencies in appellant’s brief have been made the basis of a motion of respondent to dismiss the appeal for failure to comply with Rule 84.04. Inasmuch as appellant has conceded that she has waived the grounds of negligence asserted in her petition but not submitted in the trial court and that the single question on this appeal is the correctness of the trial court’s ruling on the charge of negligence submitted, the issue on appeal is clearly delineated and appellant’s brief adequately presents it. Therefore, the motion to dismiss the appeal is overruled.

Dispositive of this appeal is the fact that appellant has failed to demonstrate that the trial court erred in its conclusion that evidence was wholly lacking as to the existence, availability, cost or usage of a device to prevent the opening of the elevator shaft door when the elevator car was on a different floor. Appellant argues that such evidence is to be found in the testimony of Mr. Dillingham, president of respondent, called as a witness by appellant at the trial. Her argument on this score is as follows:

“The testimony of Mr. Dillingham, the respondent’s President, is quite clear: First, when asked about a particular automatic elevator, he replied ‘The door came open. It meant that the elevator was there, on an automatic elevator, so I got on.’ * * *; second, when asked about the elevator in the Livestock Exchange Building, he gave the following responses, regarding the three automatic passenger elevators:

‘Q. And the door opens automatically, when the elevator is at that floor; isn’t that right?

‘A. Yes, sir.

‘Q. In fact, you don’t allow your tenants, or visitors to your building, other than your help, to use anything but the three automatic elevators, isn’t that right?

‘A. Well, when the automatics were put in, and with the decline in volume of traffic on the elevators in our building, we had no need for the others. * * *

‘Q. Do you allow your tenants or the people coming into the building to use anything other than the three automatic elevators, Mr. Dillingham?

‘A. I believe I testified that they were not in use, and the general public did not generally use them.

‘Q. All right. So you don’t subject the general public to opening the door with a lunar key, do you sir?

‘A. The general public could not have access to the key through which they could open the door.’ ”

Appellant also points to the following finding of the trial court in its memorandum:

“The doors to the automatics could not be entered unless the car was there. The doors to the manuals all locked but could be entered by the use of a lunar key on the first and ninth floors.”

The fallacy in appellant’s argument is that the evidence upon which she relies did not relate to the operation of an elevator in the circumstances of appellant’s injury. All Mr. Dillingham’s testimony showed was that, on the automatic elevators used by the public, when the elevators were powered up and in use, pushing the control button would cause the elevator to stop and the door to open. His testimony did not show that, even on the automatic elevators, which on the first floor of the building had a means of opening from the exterior the door to the shaft by use of a lunar key, such device would operate only when the elevator car was also at the first floor. The fact that the door did open automatically when the car was present and the control button pushed does not show that the door would not have opened, unless the car was there, had the lunar key device been used to open the door. The trial court’s finding in this regard cannot bolster appellant’s position-because such finding simply was not based upon the evidence. The trial court did correctly find a complete lack of evidence to support the theory of negligence submitted and its judgment must be affirmed.

Appellant has advanced the further contention that the trial court erred because its memorandum showed that it considered respondent’s motion which was sustained a “motion for a judgment n. o. v.,” a motion abolished by Rule 78.05. The trial court’s memorandum does refer to respondent’s motion in such language. There is no need to dwell on the recent history of motions for judgment notwithstanding the verdict, now recognized by Rule 72.01(b). This case was tried in 1974, at which time Rule 78.05, as then in effect, did abolish such motion. New Rule 72.01(b) had been promulgated, although it had not become effective at the time of the trial court’s ruling. In any event, however, Rule 78.05, then in effect, authorized the motion filed by respondent and the trial court’s nomenclature did not render its action on the motion a nullity.

Judgment affirmed.


author: McMILLIAN, Judge.

text:
    Betty J. TRAIL, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION of Missouri, DIVISION OF EMPLOYMENT SECURITY OF the DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS of Missouri, and Von Der Ahe Van Lines, Inc., a corporation, Defendants-Respondents.
    No. 36956.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 3, 1976.

      Joseph H. Langworthy, Jr., Pacific, for plaintiff-appellant.
    Lloyd G. Hanley, Ind. Comm, of Mo., Dan J. Chatfield, Div. of Empl. Security, Jefferson City, for defendants-respondents.
   McMILLIAN, Judge.

Appellant Betty J. Trail appeals from a judgment of the circuit court of Franklin County, Missouri, affirming the order of respondent Industrial Commission of Missouri (Commission) denying a review of a decision by the Appeals Tribunal of the Division of Employment Security under Missouri Employment Security Law. The Commission found that the decision of the Appeals Tribunal, denying appellant benefits because she had left her place of employment voluntarily without good cause attributable to her work or to her employer respondent Von Der Ahe Van Lines, Inc. (Van Lines), was supported by competent and substantial evidence and made in accordance with the law. We reverse and remand with instructions.

On or about November 26,1965, appellant left her employment with Van Lines. Appellant had gone to her supervisor, Mrs. June Shoulders, and said that because of her pregnancy she would have to quit. According to appellant’s testimony, Mrs. Shoulders told her that she was not going to quit but would go on a leave of absence. Mrs. Shoulders mailed a leave of absence form to her, and appellant filled out the form and returned it to Mrs. Shoulders. Appellant never received a notice of whether her request was approved or not.

In the “Request for Leave of Absence” form, appellant asked to be excused because of pregnancy, from December 10, 1965, to “after child birth 1966”. At the bottom of the request form a rectangular box appeared as follows:

: sUp. Approved Illness : : Other : : J. M. Shoulders (writtenl_:

An employee, Mrs. Lucille Wilson, testified that she had heard Mrs. Shoulders say appellant was on leave of absence. Also there was testimony that another employee was on leave of absence for pregnancy.

Not only did Mrs. Shoulders deny making the statement attributed to her by Mrs. Wilson, but also both she and her boss, Mr. Von Der Ahe, president of the corporation, testified that she did not have the authority to grant extended leaves of absence for pregnancy or any other other reason. On the other hand, Mrs. Shoulders admitted that in her supervisory capacity she did have the authority to grant leaves of absence for limited periods; Mr. Von Der Ahe had given her this authority orally. Although differing as to the permissible length of time, Mr. Von Der Ahe admitted that Mrs. Shoulders had limited authority to grant short term leaves.

The Appeals Referee found that, since Mrs. June M. Shoulders had no authority to grant leaves of absence and since only Mr. Von Der Ahe had such authority, appellant’s leaving work was voluntary and without good cause attributable to her employment or employer. Consequently, appellant’s benefits were denied.

Section 288.020 declares the purpose of the Employment Security Law to be the compulsory setting aside of unemployment reserves for benefits for persons unemployed through no fault of their own. Section 288.050(1) provides: “ . . . a claimant shall be disqualified . . [if] he has left his work voluntarily without good cause attributable to his work or to his employer . . ..” Additionally, the claimant has the burden of proof to show his right to benefits. O’Dell v. Div. of Employment Security, 376 S.W.2d 137 (Mo.1964) and Citizens Bank of Shelbyville v. Ind. Comm., 428 S.W.2d 895 (Mo.App.1968). In considering the above disqualification, three issues are generally presented: (1) Was there a voluntary quitting? (2) If so, was it with good cause? (3) If both of the foregoing are found, was the good cause attributable to claimant’s work or his employer? South Central Bell Telephone Co. v. Administrator, Div. of Employment Security, 247 So.2d 615 (La.App.1971) and Comment, Unemployment Compensation in Louisiana, 19 La.L.Rev. 448, 461. In the present case we do not reach a consideration of either the second or third issues since we ultimately conclude that appellant did not voluntarily leave her work. Decisions of the Industrial Commission on questions of law do not bind this court; but, as to questions of fact, our review is limited to ascertaining upon the whole record whether the Commission could have reasonably made its findings and reached its results, considering the evidence most favorable to the award. Combustion Engineering, Inc. v. O’Connor, 395 S.W.2d 528 (Mo.App.1965). Here the appeals referee rejected appellant’s evidence that her supervisor, Mrs. Shoulders, had granted her leave of absence. The referee gave as his reason for the rejection of appellant’s evidence upon this issue: (1) Mrs. Shoulders’ authority to grant leaves of absences was limited; (2) only the president, Mr. Von Der Ahe, had such authority; and (3) no one ever told appellant her request for a leave of absence was granted. In our judgment, a mixed question of law and facts is tendered, and we are not bound by the appeal referee’s conclusions.

In Wynn v. McMahon Ford Co., 414 S.W.2d 330, 336 (Mo.App.1967), we noted that where a person has created such an appearance of things that it causes a third person reasonably and prudently to believe that a second party has the power to act on behalf of the first person, the first person is thereby bound to the third person who relies upon the appearance so created. In such a case, the appearance of power is the equivalent of expressly conferred power insofar as third persons are concerned. Sometimes such appearances result from the first person’s course of conduct in which he allows the second person to perform a series of acts in his name although he has not given the second person any authorization to act in the specific instance. Johnson v. Hurley, 115 Mo. 513, 22 S.W. 492 (1893). Sometimes it results, as here, from the appointment of the second person to a type of position which ordinarily involves the authority to perform a certain function although no such actual authority exists.

In this posture, the evidence shows that appellant informed her supervisor that she was going to quit because of pregnancy. Immediately, her supervisor replied that she was not going to quit but was going on a leave of absence. Subsequently, the supervisor mailed a “Request for Leave of Absence” to appellant, which was returned and received by her supervisor. Pregnancy was given as the reason for the request, and the leave was to start December 10, 1965, and end “after child birth 1966.” In the rectangular box under the printed word “Approved” was signed “J. M. Shoulders.” No notation was contained thereon stating that the request was disapproved. No one notified appellant that her request was approved or disapproved. Nor did appellant seek a confirmation. The evidence by Mrs. Shoulders and Mr. Von Der Ahe established that Mrs. Shoulders had authority to grant limited leaves of absence. Other evidence showed that Mrs. Shoulders had given leaves of absence before.

Mrs. Shoulders and Mr. Von Der Ahe testified that Mrs. Shoulders’ authority was limited to granting leaves of absence for short periods of time, not long extended periods. However, Comments (a) and (d) to Restatement of the Law, Agency, Second, § 27 correctly states the rule: “ * * * apparent authority can be created by appointing a person to a position, such as that of manager or treasurer, which carries with it generally recognized duties; to those who know of the appointment there is apparent authority to do the things ordinarily entrusted to one occupying such a position, regardless of unknown limitations which are imposed upon the particular agent.” Wynn v. McMahon Ford Co., supra, at 337.

It is true, as pointed out by respondent, that the Appeals Referee’s finding that the employer did not grant a leave of absence to appellant is based upon competent and substantial evidence. But the core question is actually whether Mrs. Shoulders did, and whether she had the authority to do so? Our answer to both questions is in the affirmative. Mrs. Shoulders did grant the leave of absence, and she had at least the apparent authority to do so, thus binding her principal. Here, Mrs. Shoulders was the supervisor of her department and put into that position by the employer. Not only did both employer and Mrs. Shoulders admit to her having limited authority to grant leaves of absence; but also, equally important, Mrs. Shoulders, after representing to appellant that she was not going to quit but go on a leave of absence, mailed a “Request for Leave of Absence” form, supplied by employer, to appellant. And upon receipt of the request for leave of absence, Mrs. Shoulders approved it. Mrs. Shoulders also testified that she discussed appellant’s request for a maternity leave with Mr. Von Der Ahe, and that he did not approve it. Yet, the “Request for Leave of Absence” apparently marked “approved” neither bore a notation of refusal by either Mrs. Shoulders or her boss, nor did Mrs. Shoulders ever notify appellant that her request was turned down. Under these circumstances, either on the theory of apparent authority or by estoppel, since Mrs. Shoulders tendered the offer of a leave of absence and followed it up by mailing a company form, she should have at least notified appellant of the rejection of her request. Not having done so, in our judgment, appellant had the right to assume her request was granted. Furthermore, the evidence showed that (1) on February 8, 1966, after appellant had left work, she returned and did some work for the company; and (2) Mrs. Shoulders and appellant talked on the telephone on several occasions, and at no time did Mrs. Shoulders tell appellant that her request was rejected. Consequently, we hold that the employer placed Mrs. Shoulders in the position of supervisor and that her position as supervisor involved the authority to grant leaves of absence in her dealing with her subordinates. Although her authority was limited, such limitations were unknown to appellant and other employees. Therefore, Mrs. Shoulders had the apparent authority to do those things which supervisors ordinarily and customarily do, as to employees who knew that she was a supervisor, although they did not know what powers and limitations supervisors in such a business had. The employer is bound by her conduct.

In ordinary usage, the term “leave of absence” means that the employee is given permission to be absent from work for a certain time, at the expiration of which the employee will return to his employment status. Thus, in the ordinary case, where there is a leave of absence mutually agreed upon by the employer and employee, the employee does not voluntarily quit her job. South Central Bell Telephone Co. v. Administrator, Div. of Employment Security, supra, at 617. See also, Lewis v. Calif. Unemployment Ins. App. Bd., 56 Cal.App.3d 729, 128 Cal.Rptr. 795 (1976), where “leave of absence” is defined as “not a termination of the employment: it preserves the employer-employee relationship in a state of suspense.” Thus, a leave of absence is not a complete separation from employment; it connotes a continuity of the employment status, during which time performance of the duties of his work by the employee and remuneration by employer and other fringe benefits may be suspended. In the Lewis case, supra, the California court stated:

“An employee who takes a genuine ‘leave of absence,’ ... is also ‘unemployed,’ during the leave period . He is . . . ‘disqualified’ for benefits during the period because he ‘left his . work voluntarily without good cause’ . . . and his unemployment during the leave is therefore attributable to his own ‘fault.’ But where the ongoing job is terminated by the employer during the leave, with the result that it — the job — is not available to the employee at the expiration of the leave as anticipated by the parties, his consequent unemployment at that time has been caused by the employer’s action alone. This means that his first-instance reasons for having taken the ‘leave of absence’ are no longer relevant for purposes of determining his eligibility for unemployment compensation benefits, that he is not currently unemployed due to his own ‘fault,’ and that he is accordingly not ‘disqualified for . . . benefits’ by reason of having ‘left his . . . work voluntarily without good cause.’ ”

Here we find that Mrs. Shoulders granted appellant a leave of absence and that appellant received no assurance that she would be reemployed; consequently, since appellant was not a contract employee, respondent had the right to terminate her job at will. In any event, appellant retained her job during the leave. However, when she notified her supervisor in May, 1966, that she wished to return to work, her job was unavailable until another former employee was rehired. The effect of this was that appellant was laid off; as a result, her unemployment was caused not by her own fault for having taken the voluntary leave of absence but by the fact that the employer had no job available. It was at this time that appellant filed a claim for unemployment compensation; and, under these circumstances, we hold appellant did not voluntarily quit her job.

For the reasons above, we reverse the judgment of the circuit court with directions to remand to the Commission to enter an award in accordance with this opinion.

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

      . Restatement of Law of Agency Second, Comment (c) to § 49: “Inferences from agent’s position. Acts are interpreted in the light of ordinary human experience. If a principal puts an agent into, or knowingly permits him to occupy, a position in which according to' the ordinary habits of persons in the locality, trade or profession, it is usual for such an agent to have a particular kind of authority, anyone dealing with him is justified in inferring that he has such authority, in the absence of reason to know otherwise. The content of such apparent authority is a matter to be determined from the facts.”

      . Chenault v. Otis Engineering Corp., 423 S.W.2d 377, 383 (Tex.Civ.App.1967); Accord State v. Grayston, 349 Mo. 700, 163 S.W.2d 335, 341 (1942); State v. Akron Civil Svc. Comm., 95 Ohio App. 385, 120 N.E.2d 127, 130 (1953); Bowers v. Am. Bridge Co., 43 N.J.Super. 48, 127 A.2d 580, 585 (1956).


author: GUNN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Floyd MERRITT, Defendant-Appellant.
    No. 36921.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 3, 1976.

      Robert A. Hampe, Daniel P. Reardon, Jr., St. Louis, for defendant-appellant.
    Preston Dean, Asst. Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., Brendan Ryan, Circuit Atty., Ronald B. Safren, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Defendant killed Albert Redmann with a single gun shot to the chest. Defendant was sentenced under the Second Offender Act to 25 years imprisonment and has appealed, raising the single issue that the trial court erred in failing to submit an excusable homicide instruction. We find no error and affirm.

Early on the day of the killing, defendant and Redmann had engaged in an altercation with an exchange of blows. After the initial fray of fisticuff battle, the combatants disengaged with Redmann retiring to the Mona Lisa Lounge for refreshment and defendant going elsewhere to obtain a pistol. Defendant searched for and located Red-mann at the Mona Lisa Lounge. It is unchallenged that after making demand upon Redmann for money allegedly owed to him, the defendant struck Redmann twice in the head with his fist, took a pistol from his pocket and after displaying the gun with considerable bellicosity for a period of time, shot Redmann in the chest inflicting a mortal wound. The evidence was uncontrovert-ed that Redmann was unarmed and made no retaliatory attack on defendant. The only difference between the State’s and defendant’s evidence is that relating to the discharge of the pistol. The State’s evidence, through a bystander (the owner of the Mona Lisa Lounge) was that the defendant was about 5-6 feet from Redmann when the gun was fired directly at Red-mann. The defendant’s testimony, though somewhat opaque and obfuscatory, was that Redmann had apparently brushed against the defendant’s arm while the gun was displayed, causing it to discharge.

The jury was instructed on first and second degree murder, manslaughter and, at defendant’s request, justifiable homicide. A verdict of guilty to second degree murder was returned.

Before discussing the merits of the appeal, we note that an excusable homicide instruction was not requested at trial, nor was the court’s failure to give such an instruction raised by defendant in his motion for a new trial; therefore, the asserted error was not preserved for review. Rule 27.20 V.A.M.R.; State v. Thomas, 530 S.W.2d 265 (Mo.App.1975). Matters raised for the first time on appeal will only be considered where they constitute “plain error” under Rule 27.20(c) Y.A.M.R. The plain error rule, however, is not applicable “in matters relating to instructions unless the trial court has so misdirected or failed to instruct the jury on the law of the ease so that the misdirection or failure to instruct causes a manifest injustice.” State v. Broomfield, 510 S.W.2d 843, 845 (Mo.App.1974). “Manifest justice” is to be determined on a case by case basis. State v. Patterson, 443 S.W.2d 104 (Mo. banc 1969). Where the evidence raises a question of excusable homicide because of accident the instruction must be given whether requested or not. State v. Cook, 512 S.W.2d 907 (Mo.App.1974), and if the evidence warrants, failure to submit such an instruction has been held to constitute plain error. State v. Randolph, 496 S.W.2d 257 (Mo. banc 1973).

At trial defendant requested that the jury be instructed on the defense of justifiable homicide. That defense implies a voluntary act necessitated by the circumstances. See § 559.040 RSMo 1969. The defense of excusable homicide, on the other hand, implies an involuntary act by the appellant. “Homicide shall be deemed excusable when committed by accident or misfortune, in either of the following cases:

“1) ... in doing any other lawful act by lawful means, with usual and ordinary caution, and without unlawful intent; or
“2) In the heat of passion, upon any sudden or sufficient provocation, or upon sudden combat, without any undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel and unusual manner.” § 559.050 RSMo 1969. (emphasis added)

Under the facts of this case submission of an excusable homicide instruction was not warranted as that defense is defined by statute. Nor was it warranted under the common law definition which requires that the accused act without wrongful purpose while engaged in a lawful enterprise and without negligence. State v. Browning, 442 S.W.2d 55 (Mo. banc 1969); State v. Simon, 534 S.W.2d 839 (Mo.App.1976); State v. Cook, supra. Defendant here clearly does not meet the requirements of paragraph (2) § 559.050 RSMo 1969, because he used a deadly weapon to commit the homicide. Nor is he entitled to rely on the defense under paragraph (1) or under the similar common law definition, as the homicide occurred while defendant was engaged in an unlawful act. By carrying a concealed weapon into the lounge, taking it from his pocket and then flourishing it in a rude and threatening manner defendant was in violation of § 564.610 RSMo 1969. State v. Smith, 539 S.W.2d 571 (Mo.App.1976). Such violation in the course of a homicide has consistently been held to negate the necessity of submitting an excusable homicide instruction. State v. Browning, supra; State v. Smith, supra; State v. Cook, supra. We find that under the facts of this case an excusable homicide instruction was not required.

The judgment is affirmed.

SIMEONE, P. J., and KELLY, J„ concur.

      . See MAI-CR Comments: Excusable Homicide (1974), for a comprehensive treatment of instructions on excusable homicide.

      . Although the defenses of justifiable homicide and excusable homicide are inconsistent where there is evidence from a source other than defendant alone which would warrant both instructions they must be submitted concurrently. State v. Brown, 502 S.W.2d 295 (Mo.1973); State v. Walker, 525 S.W.2d 826 (Mo.App.1975).


author: PER CURIAM.

text:
    Patricia COGGBURN and Harold Coggburn, Plaintiffs-Appellants, v. Barbara Jean WATTS, a minor, Defendant-Respondent.
    No. 10283.
    Missouri Court of Appeals, Springfield District.
    Aug. 10, 1976.
    Wayne C. Smith, Jr., Springfield, for plaintiffs-appellants.
    Harold J. Fisher, Woolsey, Fisher, Clark, Whiteaker & Stenger, Springfield, Clay Cantwell, Branson, for defendant-respondent.
   PER CURIAM.

On December 18, 1975, a Taney County jury returned a unanimous verdict denying plaintiffs’ claims for personal injuries, loss of consortium, and property damage. All documents after the return of the verdict and before the February 9, 1976, notice of appeal relate to after-trial motions.

The transcript does not contain a judgment as defined by Rule 74.01, V.A.M.R. and required by Rule 81.14(a), V.A.M.R. Insofar as this court’s records are concerned, judgment has not been entered on the jury verdict. Accordingly, we have no jurisdiction of this premature appeal and it is dismissed. Peacock v. City of Dexter, 530 S.W.2d 272 (Mo.App.1975).


author: DOWD, Judge.

text:
    Sandra WATSON, Plaintiff-Appellant, v. FRANKLIN FINANCE and Denny Loan Company, Defendants-Respondents.
    No. 37290.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 10, 1976.

      Harold A. Tzinberg, Clayton, for plaintiff-appellant.
    Joseph L. Leritz, St. Louis, for defendants-respondents.
   DOWD, Judge.

This is an appeal from an order of the Circuit Court of St. Louis sustaining the defendants-respondents’ motion to dismiss Count I of plaintiff-appellant’s first amended petition. Plaintiff claims the court below erred and that Count I stated a claim upon which relief could be granted; specifically, the tort of intentional infliction of mental distress. We find that plaintiff’s petition did state a cause of action and accordingly we reverse the judgment of the trial court and remand the cause for further proceedings.

On May 9, 1975 plaintiff filed a suit in two counts. Plaintiff voluntarily dismissed Count II on July 28, 1975 leaving only Count I for our consideration. Count I reads as follows:

“PLAINTIFF’S FIRST AMENDED PETITION
COUNT I
“Now comes the Plaintiff and for Count I of her cause of action alleges:
“1. That Defendant Franklin Finance Company, hereinafter referred to as ‘FFC’, is the successor corporation surviving the merger of FFC and Denny Loan Company, hereinafter referred to as ‘DLC’, DLC having formerly been a wholly owned subsidiary of FFC, engaged in the business of making and collecting loans in the City of St. Louis, Missouri.
“2. That on the 3rd day of October, 1972, Plaintiff and her husband, Kenneth Hamilton, did secure with Defendant DLC a loan of the principal amount of Five Hundred Dollars and One Cent ($500.01) with interest of One Hundred Eighty-Nine Dollars and Ninety-Nine Cents (189.99).
“3. That during the period from October 19, 1973, until January 23, 1975, the Defendant DLC herein repeatedly wrote, phoned, and visited the Plaintiff and falsely threatened to have the Plaintiff’s home seized and sold, well knowing that they did not have a judgment on which execution or foreclosure could issue, not for the ostensible purpose of persuading the Plaintiff to make payment on any obligation, but for the purpose of harassing, intimidating, and embarrassing Plaintiff.
“4. That said letters, phone calls and visits did, in fact, cause the Plaintiff to be harassed, intimidated, and embarrassed.
“5. That by reason of the course of conduct by the Defendant DLC, which was willful, wanton and malicious, Plaintiff’s mental and emotional well-being was adversely affected and said effects are permanent and progressive.
“6. That at all times mentioned herein, Plaintiff was suffering the ravages of a severe medical, physical condition, to-wit: epilepsy, a condition which rendered her particularly susceptible to the threats and harassment of the Defendant and Defendant DLC, knowing of Plaintiff’s condition, persisted in its course of conduct as aforesaid, thereby aggravating Plaintiff’s medical condition.
“7. That by reason of the false threats and the unreasonable and outrageous conduct of Defendant DLC, Plaintiff was made sick and unable to attend to her personal affairs and was also put to great expense and trouble to prepare to defend herself against the threatened prosecution.
“WHEREFORE, Plaintiff prays judgment for Twenty-Five Thousand Dollars ($25,000.00) compensatory damages and for Twenty-Five Thousand Dollars ($25,-000.00) exemplary damages against the Defendants and for her costs.”

On May 23, 1975, defendants filed separate motions to dismiss plaintiff’s petition because it did not “contain facts which constitute a cause of action against this defendant upon which relief may be granted plaintiff.” On June 10, 1975, the court sustained these motions to dismiss with reference to Count I alone.

In our review of a dismissal of a petition for failure to state a claim, we are required to construe the petition favorably and to give the pleader the benefit of every reasonable and fair intendment in view of the facts alleged, and if the pleader’s allegations invoke principles of substantive law which may entitle it to relief, the petition is not to be dismissed. If the facts pleaded and the reasonable inferences to be drawn therefrom looked at most favorably from the plaintiff’s standpoint show any ground upon which relief may be granted, the plaintiff has the right to proceed. If the allegations in the petition invoke substantive principles of law which if proved may entitle the pleader to relief, the petition is not to be dismissed. Laclede Gas Company v. Hampton Speedway Company, 520 S.W.2d 625, 629-30[4] (Mo.App.1975). Nor is a petition to be held insufficient merely because of a lack of definiteness or certainty. Zuber v. Clarkson Const. Co., 363 Mo. 352, 355, 251 S.W.2d 52, 54 (1952).

In Laclede, Judge Simeone, -writing for this court stated that the rule under modern pleading principles, is that a petition is not to be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. The court further explained, “We have come a long way since the technicalities embodied in the common law pleadings controlled the determination of the cause. The emphasis, today, is not on pleading but on the disposition of the cause on the merits.” Supra, at 631.

Applying these principles, we have determined that plaintiff’s petition complied with Rule 55.05 which requires that the petition shall set forth a “short and plain statement of the facts showing that the pleader is entitled to relief . . .

Plaintiff alleged in the petition that defendant DLC “repeatedly wrote, phoned, and visited the plaintiff and falsely threatened to have Plaintiff’s home seized and sold, well knowing that they did not have a judgment on which execution or foreclosure could issue, not for the ostensible purpose of persuading the Plaintiff to make payment on any obligation, but for the purpose of harassing, intimidating, and embarrassing Plaintiff.” Under this pleading it must be readily acknowledged that there are myriad sets of facts which plaintiff could prove to entitle her to relief. For example, she might prove that defendant called her fifty times a day, or that defendant used violent and abusive language in every phone call; these types of conduct could be considered extreme and outrageous.

Defendant relies on Pretsky v. Southwestern Bell Telephone Co., 396 S.W.2d 566 (Mo.1965), where the court sustained a motion to dismiss plaintiff’s petition. In the Pretsky case the petition alleged that an employee of defendant phone company had falsely stated to plaintiff that there was trouble on her line in order to gain entry into her home, which caused her to suffer “extreme anxiety, fright and emotional upset.” The court held, “the facts pleaded do not constitute what could be considered extreme and outrageous conduct,” supra at 570, and dismissed the petition. Pretsky can be distinguished from the case at bar because in Pretsky, plaintiff narrowly confined her pleadings to the misrepresentation to gain entry. There can be virtually no set of facts which plaintiff could have proven to entitle her to relief for intentional infliction of emotional distress by virtue of the mere entry into her home, with no subsequent act. The fact of entry, even if under false pretenses, cannot be said to be “extreme and outrageous”, as is required by Missouri Law in order to recover damages for intentional infliction of emotional distress.

We realize that the plaintiff must show that defendant’s conduct was extreme, outrageous, atrocious, utterly intolerable, and beyond all possible bounds of decency, Kuehner v. Denny Loan Corporation, 518 S.W.2d 94, 96[3] (Mo.App.1974). However, we believe that those requirements go to the evidence adduced at trial and not to the sufficiency of the pleadings.

The trial court’s order dismissing Count I of plaintiff’s petition is reversed, and the cause is remanded for further proceedings.

CLEMENS, P. J., and STEWART, J., concur.

      . In Pretsky v. Southwestern Bell Telephone Co., 396 S.W.2d 566 (Mo.1965), Missouri adopted the position of Restatement (Second) of Torts, § 46 (1965) that one is liable for intentionally or recklessly causing severe emotional distress if it is done “by extreme and outrageous conduct.”


author: SIMEONE, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Paul Michael SMITH, Defendant-Appellant.
    No. 37531.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 10, 1976.

      Robert C. Babione, Walter Sheata, Asst. Public Defenders, St. Louis, for defendant-appellant.
    Brendan Ryan, Circuit Atty., St. Louis, John C. Danforth, Atty. Gen., Preston Dean, W. Mitchell Elliott, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

Defendant-appellant, Paul Michael Smith, was found guilty of the offense of sodomy and sentenced under the second offender act to six years in the department of corrections. §§ 563.230, 556.280, RSMo 1969; State v. Crawford, 478 S.W.2d 314 (Mo.1972). The cause was tried to the court, the defendant having waived a jury.

There is no need to detail the sordid facts in the record, since the appellant does not raise any issue as to the sufficiency of the evidence. Suffice it to say that the evidence shows that the appellant committed an act of sodomy per os upon a young nine-year-old boy. The young boy testified, after being found competent, as to the details. The defendant testified and denied the incident. The appellant’s sole point on appeal is that the trial court erred in admitting certain testimony of the mother of the victim.

During the mother’s direct testimony she was asked by the prosecutor:

“Q. Could you describe for us the condition of [the victim], what you saw him to be when he came home?
“A. Well, it was supper was [sic] on the table, he came in the door, and he was sobbing, and crying and carrying on and was hollering Paul [Smith] was breaking his arm and choking him—
“[Defense Counsel]: I will—
“Q. (By [prosecutor:]) Not what he said. Could you describe for us how he looked.
“A. He was upset and frustrated. His face was red and he was crying and sobbing.”

Appellant contends on appeal that the testimony of the mother was hearsay, was not part of the res gestae and violated the principle that while a witness may testify as to the fact that a complaint was made by the victim, the witness may not testify as to the details of the complaint. The state in its brief does not address this issue but is content to contend that there was no error because (a) the answer was unresponsive and (b) error if any was harmless.

In cases of this nature, the general rule is that a witness may testify as to the fact that a complaint has been made, and such testimony is admissible in the case in chief.

“[T]he courts are in accord in holding that the fact that a complaint was made may be shown upon the examination in chief by the state where the complaint was uttered soon after the occurrence, . on the theory of corroboration.

State v. Conrad, 322 Mo. 246, 14 S.W.2d 608, 610 (1928); State v. Hubbard, 295 S.W. 788, 791 (Mo.1927) — sodomy; State v. Marshall, 354 Mo. 312, 189 S.W.2d 301, 305 (1945); State v. Robinson, 106 S.W.2d 425, 427 (Mo.1937). It is also the general principle that the “details of the statements made by the [victim] in [the] complaint are not admissible in the first instance.” State v. Fleming, 354 Mo. 31, 188 S.W.2d 12, 15 (1945); State v. Marshall, supra, 189 S.W.2d at 305; 70 Am.Jur., Sodomy, § 19, p. 821 (1973). The details are only admissible “in rebuttal to rehabilitate the credibility of the witness after testimony establishing extrajudicial statements . . . has been introduced for impeachment purposes.” See State v. Fleming, supra, 188 S.W.2d at 15, citing many authorities.

But what is meant by a “complaint” and what constitute “details” have not been thoroughly analyzed by the authorities. “Just what are ‘details’ is a question on which all the decisions do not agree . .” State v. Marshall, supra, 189 S.W.2d at 305. In applying this general principle, it has been said that while a witness may not testify as to the details of the complaint, some facts may be given to show the nature of the complaint even though it involves some particulars, such as the circumstances under which it was made, the condition of the victim when the complaint was made or that the victim exhibited marks of violence. See 65 Am.Jur.2d, Rape, § 78, p. 806 (1972); cf. State v. Robinson, supra, 106 S.W.2d at 427 — witness related that victim was crying; cf. State v. Conrad, supra; see cases collected in 25 Mo.Digest, Rape @=>48(2).

No absolute guidelines can be laid down as to what constitutes a “detail” of the complaint. Not every “detail” is sufficient to constitute a violation of the rule. Much must be left to the discretion of the trial court. After examining the record we cannot conclude that the court erred in this case and under these circumstances. The mother’s unresponsive testimony indicated that when her son came home he was crying and “hollering Paul was breaking his arm and choking him — .” This was not a substantial “detail” of a complaint made by this young unsophisticated victim so as to constitute a violation of the principle established by the authorities. The prosecutor did not press for any details and specifically indicated that he would withdraw any question concerning statements made by the boy to his mother. Under all the circumstances, we conclude that this point is without merit.

Even assuming that the statement constituted a detail of the complaint, there was no error for other reasons. (1) Appellant argues that the statement was not part of the res gestae. But the statement was made upon the victim’s return home, which was only three or four houses away from the appellant’s house, and hence we believe the statement was also admissible as part of the “res gestae” and as such came within the “spontaneous declaration” exception to the hearsay rule. State v. Gilreath, 267 S.W. 880, 882-883 (Mo.1924); 81 C.J.S. Sodomy, 1976 Supp., §.5, p. 177; 70 Am.Jur.2d, Sodomy, supra, § 19, at p. 820; Annot., 19 A.L.R.2d 579, 592-594 (1951). (2) Since this was a court-tried case, the same rules pertaining to evidentiary matters before a jury do not apply. Any error in the admission or rejection of evidence does not have the same significance accorded such error in a jury trial. In such a case, although inadmissible evidence may be presented, it is presumed that the trial judge, by virtue of his experience and training, will be able to make his decision solely upon the admissible competent evidence. State v. Young, 477 S.W.2d 114, 117 (Mo.1972); and the appellate court considers the admissible evidence and excludes from consideration any improper evidence and reaches its judgment based on the competent evidence without regard to the trial court’s ruling. L. S. v. L. M. S., 538 S.W.2d 753 (Mo.App.1976). There was sufficient competent evidence for the court to reach the conclusion it did, and we so find.

We have reviewed the entire record and have read the authorities relied upon by the appellant, and we are convinced that there was no prejudicial error and that the judgment should be affirmed.

The judgment is affirmed.

KELLY and GUNN, JJ., concur.