author: O’QUINN, Justice.

text:
    Garrett MORRIS, Chairman of Texas Public Utility Commission, et al., Appellants, v. CITY OF SAN ANTONIO et al., Appellees.
    No. 12792.
    Court of Civil Appeals of Texas, Austin.
    Oct. 25, 1978.
    Rehearing Denied Nov. 8, 1978.

      John L. Hill, Atty. Gen., Martha V. Terry, Asst. Atty. Gen., Austin, for appellants.
    W. Roger Wilson, Matthews, Nowlin, Macfarlane & Barrett, San Antonio, for ap-pellees, Cities of San Antonio, Floresville and Robstown.
    Faires P. Wade, Wade & Cromwell, Corpus Christi, for appellee, City of Robstown.
   O’QUINN, Justice.

The cities of San Antonio and Floresville brought separate suits, now consolidated, against the Chairman of the Texas Public Utility Commission and other appropriate state officials pursuant to Article 1.05, Title 122A, Taxation-General, V.A.T.S., for recovery of taxes in excess of $611,000 paid under protest to the Utility Commission. From the declaratory judgment of the district court awarding recovery of the taxes and holding portions of the Public Utility Regulatory Act invalid as in violation of the Constitution, the Chairman of the Commission and other defendants below have appealed.

We will affirm judgment of the trial court awarding recovery of the taxes on grounds specified in this opinion.

As consolidated the cases were tried before the court without aid of a jury early in December of 1977, and on December 16 the court entered judgment, subsequently corrected in some detail by judgment nunc pro tunc entered March 24, 1978. Trial was largely upon stipulation of the parties and documentary proof.

The attorney general, in behalf of the state officials sued, brings nine points of error. The main contention made is that the district court erred in finding unconstitutional that portion of Section 3(c)(4) of the Public Utility Regulatory Act (Art. 1446c, V.A.C.S.; Acts 1975, 64th Leg., p. 2327, ch. 721, as amended 1977), which purports to place municipal utilities, if operated as of May 1, 1975, by a board of local trustees, as in San Antonio and Floresville, under the Utilities Act and to make them subject to taxes levied by the Commission.

The relevant portions of Section 3 of the Utility Act are:

“Sec. 3(c) The term ‘public utility’ or ‘utility,’ when used in this Act, includes any person, corporation, river authority, cooperative corporation, or any combination thereof, other than a municipal corporation, or their lessees, trustees, and receivers, now or hereafter owning or operating for compensation in this state equipment or facilities for:
“(1) producing, generating, transmitting, distributing, selling, or furnishing electricity (‘electric utilities’ hereinafter);
* * * * * *
“(3) transmitting or distributing combustible hydrocarbon natural or synthetic natural gas for sale or resale in a manner not subject to the jurisdiction of the Federal Power Commission . . . (‘gas utilities’ hereinafter) .
“(4) the transmitting, storing, distributing, selling, or furnishing of potable water . . . The term ‘public utility’ or ‘utility’ includes any municipally owned gas or electric utility, whether owned separately or in conjunction with other municipalities operated by a board of trustees which as of May 1, 1975, was not directly appointed by the governing body of the municipality, and does not include any other municipally owned utility unless otherwise provided in this Act. . ” (All emphasis added)

Both home rule and general law cities are empowered to “build and purchase, to mortgage and encumber their” utility systems by which an obligation of the system may not become a debt of the city “but solely a charge upon the properties of the system so encumbered . . .” (Art. 1111, V.A. C.S.) By the terms of the encumbrance, the management and control of the system during the time it is encumbered may be placed in the hands of the governing body of the city, “or may be placed in the hands of a board of trustees to be named in such encumbrance, consisting of not more than five members, one of whom shall be the mayor” of the city. (Emphasis added) (Art. 1115, V.A.C.S.)

Both San Antonio, a home rule city, and Floresville, a general law city, placed their utilities involved in this litigation under a “board of trustees” as authorized by Articles 1111 and 1115, and on May 1,1975, the date specified by the Legislature in Section 3(c)(4) of the Utility Act, were so operating their utility systems. Thus the municipally owned utility in each of the cities of San Antonio and Floresville was “operated by a board of trustees which as of May 1, 1975, was not directly appointed by the governing body of the municipality,” (Sec. 3(c)(4), Art. 1446c) but instead, as required by Article 1115, the trustees were named according to “the terms of such encumbrance.”

The basic and controlling issue is whether Section 3(c)(4), in the language made applicable to such cities and their utilities, is a local or special law in violation of Article III, section 56, of the Constitution of Texas denying the Legislature authority to “pass any local or special law . . Regulating the affairs of counties, cities, towns, wards or school districts . .” (Emphasis added)

The Legislature not only sought by the language in Section 3 to draw a distinction between (1) cities managing their own utilities through boards whose vacancies are filled by city council appointment and (2) cities managing their utilities through boards of trustees not directly appointed by the governing body, but confined the latter class to municipally owned utilities “operated by a board of trustees which as of May 1, 1975, was not directly appointed by the governing body” of the city. That date permanently closed the class so as to prevent any other municipality from coming within the classification at any time in the future.

Not only must a classification be broad enough to include a substantial class based on characteristics legitimately distinguishing that class from others, but the legislation must be intended to apply uniformly to all municipalities that may in the future come within the classification designated. Miller v. El Paso County, 136 Tex. 370, 150 S.W.2d 1000 (1941). In a case decided ten years earlier than Miller the Supreme Court held a statute invalid as a local or special law and said, “. . . the act is so constructed that it is absolutely impossible for any other city in the state to ever be included within the terms or under the provisions of the act.” City of Fort Worth v. Bobbitt, 121 Tex. 14, 36 S.W.2d 470, 471 (1931).

In this case the trial court, in awarding recovery of taxes by San Antonio and Floresville stated:

“It is the declaratory judgment of the court that that portion of section 3(c)(4) of the Texas Public Utility Regulatory Act, Article 1446c, Vernon’s Texas Civil Statutes (1975), which includes within the definition of the term ‘public utility’ or ‘utility’ ‘any municipally-owned gas or electric utility, whether owned separately or in conjunction with other municipalities operated by a board of trustees which as of May 1, 1975, was not directly appointed by the governing body of the municipality’ is unconstitutional as a special and local law under the provisions of Article III, section 56 of the Constitution of the State of Texas, and that, therefore, the Plaintiff and Intervenor Cities of San Antonio, Floresville and Robs-town are not lawfully classified as ‘public utilities’ for purposes of the said Act, but are ‘municipally-owned utilities’ for all purposes under the Act.”

The judgment of the trial court holding the classification attempted in Section 3(c)(4) unconstitutional is correct and we conclude that judgment should be affirmed.

We have carefully considered all points of error presented by the attorney general and overrule all points, either because the contentions are contrary to the decision we have reached, or by reason of the contentions having become immaterial in view of our conclusions, or as being without merit. We regard our holding that the language specified in Section 3(c)(4) is unconstitutional as controlling and sufficient to dispose of the appeal. Therefore we do not reach some of the ancillary or alternative issues.

The judgment of the trial court awarding recovery of the taxes paid under protest and holding the classification under Section 3(c)(4) violative of Article III, section 56, of the Constitution of Texas, is affirmed.

      . The City of Robstown intervened below as a municipality operating utilities under a system similar to that of San Antonio, although at the time of trial Robstown was not assessed for taxes, and is now an appellee. After original filing of the suits below, Garrett Morris, then Chairman of the Texas Public Utility Commission, was succeeded in office by George Cow-den, and Jesse James, then State Treasurer, now deceased, was succeeded in office by Warren G. Harding, and by writ of scire facias Cowden and Harding have been made proper parties to this cause in their respective official capacities.


source: Caselaw Access Project

author: CLAYTON, Justice.

license: Public Domain

text:
    MFA INSURANCE COMPANIES, Movant, v. Richard WHITLOCK and Judy Whitlock, his wife, Respondents.
    Supreme Court of Kentucky.
    Sept. 19, 1978.
    Ben L. Kessinger, Jr., Ralph F. Kessinger, Harbison, Kessinger, Lisle & Bush, Lexington, for movant.
    Harlan H. Veal, Jr., Nicholasville, for respondents.
   CLAYTON, Justice.

Is a clause in an automobile insurance policy valid which excludes from uninsured motorist coverage accidents arising out of the use of vehicles owned by an insured other than the automobile described in the liability portion of the policy? That is the question confronting us in this case, a question which we answer in the affirmative.

On March 29, 1972, Richard and Judy Whitlock were struck head-on by a pickup truck driven by Richard Redman, who was traveling on the wrong side of the New Circle Road in Lexington. Both the car in which the Whitlocks were riding, a 1962 Chevrolet owned by Judy, and Redman’s truck were uninsured. Unable to collect damages from Redman — Richard was awarded $5,258 and Judy $27,400 in damages in a suit filed in Fayette Circuit Court — the Whitlocks sued MFA, alleging liability under the uninsured motorist endorsement accompanying a liability policy carried by Richard on his 1966 Ford. That endorsement, in limits of $10,000 per person and $20,000 per accident, is in pertinent part as follows:

1. Coverage E — Uninsured Motorists (Damages for Bodily Injury) — The Company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle .
2. Definitions — With respect to the insurance offered under Coverage E, the following additional definitions apply:
‘insured’ means:
(a) the named insured, his spouse, and any relative;
(b) any other person while occupying an insured automobile;
‘insured automobile’ means:
(a) the described automobile;
(b) a non-owned automobile while being operated by the named insured

Because the Whitlocks were riding in Judy’s Chevrolet at the time of the accident, however, the circuit court sustained MFA’s motion for summary judgment and dismissed the case on the basis of an exclusion also contained in the policy:

Coverage E does not apply:
(a) To bodily injury to an insured while occupying a highway vehicle (other than an insured automobile) owned by the named insured, his spouse, or a relative, or through being struck by such a highway vehicle; .

On appeal, the Court of Appeals overturned the judgment of the circuit court in an opinion rendered April 8, 1977. Noting that KRS 304.20-020(1) states that uninsured motorist coverage is to be provided in this state “for the protection of persons . entitled to recover damages from owners or operators of uninsured motor vehicles,” the court deduced that “the statute contemplates insurance against an uninsured tortfeasor operating a motor vehicle regardless of where he finds his victim” and that the aforementioned exclusion is accordingly invalid. We granted discretionary review on March 7 of this year to consider the issue raised. We reverse.

It should be noted from the outset that despite the Whitlocks’ protestations to the contrary, this is not the first time this court has considered an exclusion of the type before us today. On August 19,1977, some two months before the Court of Appeals denied a petition by MFA for a rehearing in that court, we decided State Farm Mutual Automobile Insurance Co. v. Christian, Ky., 555 S.W.2d 571, in which we upheld the validity of an exclusion virtually identical to the one in question in this case. Inasmuch as Christian involved two different policies with two different exclusions (the exclusion relevant for our purposes being that contained in the “Ford” policy) and there may have been some confusion in distinguishing between them, however, it might be helpful to review the exclusion once more.

It should be obvious by now that so long as our uninsured motorist statute, KRS 304.20-020, remains in its present form, the only question which must be answered in determining the validity of any particular exclusion is whether the exclusion is a reasonable one. For even if it be true, as the Whitlocks argue, that the phrase “subject to the terms and conditions of such coverage” contained in subsection (2) of the statute does nothing more than allow insurers leeway in defining what constitutes an “uninsured motor vehicle,” we think the failure of the remainder of the statute to mention exclusions one way or the other “affords basis for the construction that the statute does not invalidate all exclusions but only those which are unreasonable.” Commercial Union Insurance Co. v. Delaney, Ky., 550 S.W.2d 499, 500 (1977).

In the case at bar, the policy under which the Whitlocks seek to recover specifically excludes from coverage accidents arising out of the use of any vehicle owned by Richard, Judy or their relatives, other than Richard’s 1966 Ford. Because the Whit-locks were occupying Judy’s Chevrolet at the time of the accident, therefore, they were not covered under the policy, and the judgment of the circuit court dismissing the case against MFA should have been affirmed.

The judgment of the Court of Appeals is. reversed, and the cause is remanded for proceedings consistent with this opinion.

All concur.

      . KRS 304.20-020(2) begins by providing that “[fjor the purpose of this coverage the term ‘uninsured motor vehicle’ shall, subject to the terms and conditions of such coverage, be deemed to include . . . .”


author: LUKOWSKY, Justice.

text:
    WAYNE PUBLIC LIBRARY BOARD OF TRUSTEES, Movants, v. WAYNE COUNTY FISCAL COURT, Respondent.
    Supreme Court of Kentucky.
    Oct. 10, 1978.
    Morris E. Burton, Frankfort, for mov-ants.
    Thomas E. Carroll, Monticello, for respondent.
   LUKOWSKY, Justice.

This case involves a second attack on the constitutionality of the “Petition Method” of organizing and financing a public library district. KRS 173.710 through KRS 173.-800. The Wayne Circuit Court held that the entire process passed constitutional muster. The Court of Appeals held that the “Petition Method” could constitutionally bring the district into existence and require the Wayne Fiscal Court to levy a reasonable tax to support the district, but that it could not constitutionally fix the tax rate. We affirm the Wayne Circuit Court and reverse the Court of Appeals.

The “Petition Method” was conceived by the legislature in Chapter 92 of the Acts of 1964. Its parentage was reacknowledged by the legislature by minor amendments in Chapter 154 of the Acts of 1966, Ch. 241 of the Acts of 1970, Ch. 223 of the Acts of 1972, and Ch. 384 of the Acts of 1978. The constitutional legitimacy of these statutes was attested by this court in Boggs v. Reep, Ky., 404 S.W.2d 24 (1966). These statutes have been before this court for interpretation in Shreve v. Taylor County Public Library Board, Ky., 419 S.W.2d 779 (1967); Holmes v. Hume, Ky., 424 S.W.2d 824 (1968); Meredith v. Sears, Ky., 427 S.W.2d 813 (1968); Padgett v. Sensing, Ky., 438 S.W.2d 501 (1969); Aldridge v. Slusher, Ky., 446 S.W.2d 636 (1969); Miller v. Bell, Ky., 453 S.W.2d 746 (1970); Graves County Public Library District Board of Trustees v. Graves County Fiscal Court, Ky., 479 S.W.2d 27 (1972); Crafton v. Board of Trustees of the Henderson-Henderson County Public Library, Ky., 554 S.W.2d 82 (1977), and the issue of their constitutionality was not raised.

The Kentucky Department of Libraries reports that so far seventy-two of the one hundred and six library districts in Kentucky have been formed and are operating pursuant to the “Petition Method.” No doubt by this time leases have been, made, real estate has been acquired, equipment has been purchased and books have been obtained in reliance on the validity of these statutes.

This attack is based on arbitrariness, and creation of a taxing district and imposition of a tax without a vote of the people. The position taken is fairly debatable only because of Boggs (supra), provides but inferential negative answers to these issues. The outcome of the debate is not obvious. It is at best doubtful and speculative. However, the threshold question is whether, as a matter of orderly development of public institutions, this court should entertain further constitutional attacks on these library districts.

These statutes have been on the books for almost fifteen years. The legislature has favored them with frequent consideration and amendment throughout the period. After their first resistance to constitutional attack, they have been tacitly treated by this court, the bar and the people of this commonwealth as constitutional. These statutes have been interpreted and applied in numerous cases without constitutional objection being made by counsel where it was in the interest of one side or the other to make it. When over two-thirds of the library districts in Kentucky are the children of these statutes, there can be no doubt that many important and valuable rights, obligations and services have vested.

It is an ancient and pragmatic principle of law that when acts have been long accepted as constitutional and important rights have been based thereon, the courts may refuse to further consider their constitutionality. Home Telephone Co. v. People’s Telephone & Tel. Co., 125 Tenn. 270, 141 S.W. 845 (1911); Cf. Drury v. Franke, 247 Ky. 758, 791, 57 S.W.2d 969, 982 (1933). The rule is particularly applicable where, as here, the benefits from a constitutional reexamination of the statutes are to be gained by a relatively few individuals and are greatly exceeded by the mischief to be done to the vast majority served by the existing “Petition Method” library districts. Worthington v. District Court, 37 Nev. 212, 142 P. 230 (1914); Board of Commissioners of Pueblo County v. Smith, 22 Colo. 534, 45 P. 357 (1896); Cf. Walling v. Brown, 9 Idaho 740, 76 P. 318 (1904), affirmed sub nom. 204 U.S. 320, 27 S.Ct. 292, 51 L.Ed. 503 (1907), quoted with approval in Bethke v. Idaho Savings & Loan Association, 93 Idaho 410, 462 P.2d 503 (1969).

This court declines to entertain further constitutional attacks on KRS 173.710 through KRS 173.800. This is not to say that such objections raised to similar statutes that do not have an identical history would not be entertained.

The decision of the Court of Appeals is reversed and the judgment of the Wayne Circuit Court is affirmed.

All concur.


text:
    Joyce Lee RIDGE, Movant, v. Donald Henry RIDGE, Sr., Respondent.
    Supreme Court of Kentucky.
    Oct. 31, 1978.

      James I. Foley, Louisville, for movant.
    Michael V. Hargadon, Louisville, for respondent.
   CLAYTON, Justice.

In an action for dissolution of marriage, the Jefferson Circuit Court awarded Joyce Lee Ridge a judgment of $341,698.08 representing the unpaid balance of her portion of the marital property. The judgment, entered June 9, 1975, required Donald Henry Ridge, Sr., to execute a promissory note for the amount mentioned above, payable on or before five years from the date of judgment and bearing an interest rate of 4%. The Court of Appeals affirmed the trial court’s determination regarding the valuation and division of the marital property. We granted discretionary review only upon the limited issue of interest on the judgment.

The movant claims that the trial court erred in allowing interest of only 4% on the judgment. The rate of interest on judgments is governed by KRS 360.040, which at the time the judgment was entered read as follows:

A judgment shall bear legal interest from its date. A judgment may be for the principal and accrued interest; but if rendered for accruing interest, it shall bear interest only according to its terms. Provided, That when a claim for unliqui-dated damages is reduced to judgment, such judgment may bear less interest than six per cent (6%) if the court rendering such judgment, after a hearing on that question, is satisfied that the rate of interest should be less than six per cent (6%). All interested parties must have due notice of said hearing.

The unequivocal language of the first sentence of the statute required the judgment to bear interest at the rate of 6%. The trial court therefore exceeded the scope of KRS 360.040 in awarding interest at 4%. The movant was thus entitled to a 6% rate of interest on the judgment from its date.

The only issue remaining is the effect of the statutory increase of the interest rate on the judgment. KRS 360.040 was amended, effective June 19, 1976, to increase the legal rate from 6% to 8%. The increase took effect more than a year after the judgment was entered here. Movant argues that as a result of the amendment the judgment should bear interest at the higher rate

There is a division of authority as to whether interest on an outstanding judgment is affected by a subsequent change in the legal rate. One line of cases regards judgments as contractual, while other jurisdictions hold that interest on judgments is a matter of statutory grace. Annot., 4 A.L. R.2d 932. Courts adhering to the contract theory hold that interest becomes fixed at the legal rate in existence on the date a judgment is rendered. See Bartlett v. Heersche, Kan., 496 P.2d 1314 (1972). On the other hand, those courts that regard interest as a purely statutory creation hold that the rate is subject to later change by law, the change to take effect from the date of the statute. See Noe v. City of Chicago, 56 Ill.2d 346, 307 N.E.2d 376 (1974).

This is a question of first impression in Kentucky, and we are persuaded to adopt the position that the rate of interest on judgments is a statutory rather than a contractual matter. We therefore hold that the increase of the legal interest rate applies prospectively to prior unsatisfied judgments, the new rate beginning with the effective date of the amendment. The movant thus became entitled to interest at 8% upon amendment of KRS 360.040.

The judgment is affirmed in all respects except the rate of interest. The 4% rate is reversed, with directions that the movant be granted interest of 6% from the date of judgment until June 19,1976, and 8% thereafter.

All concur.

      . Ky.Acts, 1976, Ch. 59 § 2.


text:
    Gary W. DAUGHERTY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Oct. 31, 1978.

      Jack Emory Farley, Public Defender, Edward C. Monahan, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Carl T. Miller, Jr., Victor Fox, Asst. Attys. Gen., Frankfort, for appellee.
   CLAYTON, Justice.

Gary W. Daugherty appeals from a judgment sentencing him to 20 years’ imprisonment pursuant to a verdict finding him guilty of first-degree burglary (KRS 511.-020), theft by unlawful taking (KRS 514.-030), and of being a second-degree persistent felony offender (KRS 532.080).

After spending a weekend in Owensboro, Diane Boone, appellant’s sister, and her husband Robert returned to their Henderson apartment to discover that a window had been broken and a tape player and five guns were missing. Prior to this weekend, Daugherty had kept some clothes in the couple’s living room and occasionally slept there. Daugherty did not have permission to be in the apartment when the Boones were not present, and he was not given a key, although the couple did indicate they were planning to have one made for him.

Approximately one week later, appellant, while in police custody for drunkenness, made separate statements to police detectives from Owensboro and Henderson, respectively, in which he admitted breaking the apartment window in order to gain entrance to change clothes. He told both detectives that he was accompanied by Larry Roberts and Hugh Dino, although he was not sure how they got into the apartment. A few hours later, according to Daugherty, he discovered that several guns had been hidden in his car. Recognizing the guns as belonging to his brother-in-law, appellant told Roberts and Dino to get the guns out of his car.

Appellant’s initial contention is that the trial court erred in overruling his motion for a directed verdict on the burglary and theft charges. As to the former count, appellant argues that the case should not have gone to the jury since the prosecution failed to prove he was in the Boone apartment unlawfully, an essential element of first-degree burglary. We disagree. The evidence is at best equivocal as to whether Daugherty had reason to believe he had permission to be in the apartment when the Boones were away, but regardless of whether he had such permission, he certainly did not have the owners’ consent to gain entry by breaking a window. Since from this evidence it would not be unreasonable for the jury to find appellant guilty of first-degree burglary, that count was properly submitted to the jury. Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977). Applying the same standard to the theft count, we conclude the trial judge was correct in overruling the motion.

The second assignment of error concerns the instruction given by the trial court regarding complicity:

Instruction No. 5
A person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he:
(a) solicits, commands, or engages in a conspiracy with such other person to commit the offense; or
(b) aids, counsels, or attempts to aid such person in planning or committing the offense; or
(c) having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so.

Appellant’s position is that it was improper to instruct on complicity when the indictment charged him alone, as principal, for the crimes committed. Regardless of the merits of this argument, these grounds, being different from those asserted in the court below, are not properly preserved for appellate review. Kennedy v. Commonwealth, Ky., 544 S.W.2d 219 (1977); Richardson v. Commonwealth, Ky., 483 S.W.2d 105 (1972).

However, in the trial court appellant did object to the complicity instruction on the grounds that the evidence was insufficient to warrant inclusion of such an instruction. This error is therefore preserved for review, and we agree with appellant that any theory of complicity in this case is unsupported by the evidence. Instructions in a criminal prosecution must have a source within the framework of the evidence produced at trial. Butler v. Commonwealth, Ky., 560 S.W.2d 814 (1978); Blaine v. Commonwealth, Ky., 459 S.W.2d 759 (1970). The trial court therefore committed prejudicial error by instructing on complicity when such an instruction was unwarranted by the evidence, and we reverse.

This conclusion disposes of Daugherty’s further contention that this instruction was improper since it permitted conviction on alternate methods of complicity without a unanimity requirement for any one method.

Daugherty next argues that the conviction for first-degree burglary deprived him of due process of law since he was not “armed ’ with a deadly weapon, an essential element of the offense. We agree with the Court of Appeals that one who enters a dwelling unarmed and steals guns becomes “armed” with a deadly weapon within the meaning of KRS 511.020. Meadows v. Commonwealth, Ky.App., 551 S.W.2d 253 (1977).

We need not pass upon appellant’s argument that the Commonwealth’s closing statement was unfairly prejudicial, for we are confident that upon retrial the prosecutor will take care not to express any personal opinions as to the truthfulness of the evidence. We also decline to rule on appellant’s contention that there was no evidence on several elements essential for conviction as a second-degree persistent felony offender, for we have no doubt that these alleged holes will be filled at the new trial.

We find no merit in appellant’s final assignment of error, that the Indiana judgment introduced during the persistent felony stage was improperly admitted into evidence. The judgment was introduced in full compliance with CR 44.01.

The judgment is reversed with directions for a new trial.

All concur.

      . Had the evidence called for an instruction on complicity, we could not approve of the one given here, as it merely states an abstract proposition of law, unrelated to the facts of the case.


author: CLEMENS, Presiding Judge. McMILLIAN, Judge,

text:
    STATE of Missouri ex rel., CHARLES F. VATTEROTT COMMERCIAL PROPERTIES, INC., Relator, v. Honorable Fred RUSH, Judge of the Circuit Court of St. Charles County, Missouri, Respondent.
    No. 40077.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 12, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 13, 1978.
    Sumner, Hanlon, Sumner, McDonald & Nouse, P.C., Donald R. Carmody, John E. Hilton, St. Louis, for relator.
    Paul F. Niedner, St. Charles, for respondent.
   CLEMENS, Presiding Judge.

In this proceeding in mandamus the relator, Charles F. Yatterott Commercial Properties, Inc., seeks a writ of mandamus compelling respondent, Honorable Fred Rush, to grant relator leave to amend its second amended answer by pleading the statute of limitations. For reasons herein stated we conclude our alternative writ of mandamus was improvidently issued and we order it discharged.

On October 27,1975 Standard Drug Company, Inc., filed a suit in St. Charles County against St. Andrews Plaza, Inc. for a breach of a lease executed March 2,1967 but by its terms was not effective until the building was ready for occupancy. Plaintiff Standard Drug Company, Inc., the lessee, alleged St. Andrews Plaza, Inc., the defendant-lessor, had failed to furnish an air conditioned building.

By its petition for mandamus relator contends it was entitled to amend its second amended petition by alleging the statute of limitations and seeks our writ to compel respondent to grant leave to so amend, contending his refusal to allow the amendment was an abuse of judicial discretion. Relator relies on Rule 55.33(a), VAMR 1969, permitting a party to amend its pleading only by leave of court, after the time for amending as a matter of course has expired, but providing that such leave “ . . . shall be freely given when justice so requires.

To grant this writ of mandamus we must conclude respondent-judge abused his discretion in denying relator leave to amend. To do so we must find his ruling was “clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Shirrell v. Missouri Edison Co., 535 S.W.2d 446[2] (Mo.banc 1976). The Shirrell court then added: “When appellate courts are called upon to apply this test, it is well to heed the words: ‘If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.’ ”

Respondent’s challenged order denying defendant (relator) leave to amend its second amended answer was entered January 8, 1978. When respondent-judge made that order — the one relator now assails— the following salient facts were apparent to him:

February 27, 1976. Defendant had answered and the case was at issue.
August 11, 1976. Without objection, the cause was certified ready for trial and set for trial on December 22, 1976 (but not then reached).
March 7, 1977. Cause re-set for trial on April 14, 1977 (but not then reached).
May 31, 1977. Defendant granted change of judge.
June 10,1977. After the cause had been at issue for 15 months, defendant’s first motion to amend its second amended answer, by pleading the statute of limitations, was denied as untimely. (Defendant could then have sought mandamus relief.)
November 7, 1977. Cause re-set for trial on December 22, 1977.
December 22,1977. Special judge denied defendant’s renewed motion to amend by pleading the statute of limitations, but continued the case to allow defendant 30 days to apply for mandamus— which defendant did not do.
December 28, 1977. Defendant again moved to amend by pleading the statute of limitations.
January 6, 1978. Respondent denied motion to amend.
February 3, 1978. Defendant filed its petition for mandamus.

Confronted with the defendant’s challenged motion to amend on January 6,1978 the respondent-judge could see from the record that: Plaintiff’s cause had been at issue and ripe for trial since February 6, 1976; the cause had twice been set for trial; defendant had waited fifteen months after it answered to seek to amend by pleading the statute of limitations; it took no action after the June 10, 1977 denial of leave to amend until the date of trial six months later; on December 22,1977 when the cause came on for trial defendant was granted a thirty-day continuance to apply to this court for mandamus, but did not do so; instead, defendant again unsuccessfully sought to amend, and only then sought our writ of mandamus.

The challenged order denying leave to amend was a discretionary ruling. From this record the respondent-judge could well have concluded that although plaintiff had diligently sought to bring its case to trial, defendant had persistently sought to avoid trial. We cannot conclude the respondent-judge’s ruling is so illogical and arbitrary that it shocks our sense of justice. We therefore rule our preliminary writ was improvidently issued and it is ordered discharged.

SMITH, J., concurs.

McMILLIAN, J., dissents in separate opinion.

McMILLIAN, Judge,

dissenting.

I respectfully dissent. The trial court’s refusal to permit relator to amend its petition is clearly contrary to the liberal policy of allowing amendment of pleadings and thus, is an abuse of discretion. Rule 55.-33(a), V.A.M.R., 1969, permits a party to amend its pleading only by leave of court, after the time for amending as a matter of course has expired. The rule explicitly states, however, that such leave “shall be freely given when justice so requires. . ” As the author of today’s majority opinion stated in Steinberg v. St. Louis Union Trust Co., 502 S.W.2d 442 (Mo.App.1973), this rule is to be liberally construed:

“ ‘A [trial] court should not arbitrarily refuse to grant leave to amend a petition held to be insufficient’ ‘Amendments are now unlimited in scope and, in the absence of prejudice to other parties or harmful consequences of delay . courts should be extremely liberal in permitting them . .

The standard enunciated in Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) delineated factors to be considered in deciding when to permit amendments:

“If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. — the leave sought should, as the rules require, be ‘freely given’.”

In analyzing the present case in light of these factors, it is important to bear in mind that “[t]he most frequent reason for denying leave to amend is that the opposing party will be prejudiced. . . . ” DeArmon v. City of St. Louis, 525 S.W.2d 795, 802 (Mo.App.1975). In the case at bar, no prejudice will result to Standard Drug Company if relator is allowed to file its second amended answer. Because it has been fully apprised for several months of relator’s intention to assert the defense of statute of limitations if leave of court could be obtained, Standard Drug Company could hardly claim surprise at being confronted with this additional defense. Nor would amendment of the pleadings work a hardship on plaintiff for at the time respondent denied relator’s motion for leave of court to amend the case was not even on a trial docket (this case was called February 6, 1978, and set for trial March 22, 1978— which obviously did not happen as the case was on appeal) thus plaintiff had ample time prior to trial to prepare itself for the defense of the statute of limitations. Moreover, under the circumstances of the present case, the particular defense which relator sought to add, that respondent’s cause was barred by the statute of limitations, would not have significantly increased respondent’s trial preparation in the manner in which other defenses, such as contributory negligence, would have by necessitating additional extensive discovery.

As for some of the other factors listed in Foman, it is obvious that amendment of the pleadings would not be futile since the statute of limitations defense could be crucial in this case. Additionally, there is no evidence of bad faith or dilatory tactics on the part of relator.

The purpose of permitting amended pleadings is to enable a case to be decided on the merits, and not on mere technicalities. United States v. Houghman, 364 U.S. 310, 317, 81 S.Ct. 13, 5 L.Ed.2d 8 (1960). By denying the relator an opportunity to amend its pleading, the trial court frustrated this purpose of Rule 55.33(a).

For the foregoing reasons, I would order that the alternative writ be made peremptory.

      . The relator originally sought to amend its pleading in June, 1977, before the case was set for trial, and six months before the case was eventually scheduled for trial. Although the motion to amend was denied at this time the plaintiff was thereafter put on notice that statute of limitations was a relevant issue. In December, 1977, when the trial began, the relator again made a motion to amend his answer. Making the motion at this time was a reasonable precautionary tactic ensuring that the relator would not be deemed to have waived his desire to amend. Because the plaintiff was aware six months before trial that the statute of limitations was a relevant problem, it is inaccurate to intimate, as plaintiff does, that because the motion was made on the first day of trial he was caught off-guard.

      . In fact the relator acted about as promptly as any party can be expected. The majority states that relator waited fifteen months after it answered to seek to amend by pleading the statute of limitations. However, almost one year after the first defendant filed its answer the present relator was substituted in the place of the original defendant. Within four months after entering the case, the relator determined that the Statute of Limitations was an applicable affirmative defense even though it was omitted from the answer filed by the prior defendant, and sought to amend the answer accordingly. Such a delay by a party brought into a case after it commenced can scarcely be termed “undue” or “dilatory.”

      . The local court rule specifies that “[ajfter a case has been placed on the trial docket or set for trial no pleading may be amended except by leave of court, and such leave will be granted only upon a showing of due diligence in requesting such leave at the earliest practicable time.” Rule 9, Rules of Procedure, Eleventh Judicial Circuit. In addition to frustrating the policy of permitting liberal amendment of pleadings and thus reaching the merits of each particular case, this local rule, in my opinion, conflicts with our Supreme Court Rule 55.33(a) which does require leave of court or the consent of the adverse party to amend after the first amendment but specifically states that “leave shall be fully given when justice so requires.” This standard is quite different from that contained in the local rule, as illustrated by the facts in the present case. I would argue that Rule 55.33(a) and the policy of amendment stated therein should control.


author: SMITH, Judge.

text:
    Edward Eugene COLLETT, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39484.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 19, 1978.
    Robert C. Babione, Public Defender, James E. Sullivan, St. Louis, for movant-ap-pellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   SMITH, Judge.

Movant appeals from the order of the trial court dismissing without evidentiary hearing a motion to set aside sentence. Movant was convicted by a jury of two counts of armed robbery. The trial court sentenced movant to twenty-seven years on each count and specified that the sentences were to run consecutively. Movant was sentenced under the Second Offender Act. Movant bases his 27.26 motion upon the contention that the consecutive sentences were imposed pursuant to Sec. 546.480 RSMo 1969, declared unconstitutional by the Supreme Court in State v. Baker, 524 S.W.2d 122 (Mo. banc 1975).

Here the record does not indicate that the trial court relied upon Sec. 546.480 in imposing sentence. The record also does not clearly indicate that the court based its determination that the sentences should run consecutively upon discretionary grounds. During sentencing when the matter was called to the court’s attention, it did indicate that it was taking into account the “circumstances surrounding the facts in the case.” Whether this statement was directed specifically to the length of sentence or the consecutive nature of the sentence is not free from doubt although it appears to be directed to both. There is an additional feature to this case. The sentencing judge and the judge who passed on the 27.26 motion were the same person. In that posture we must presume that the trial court, freed of the constraints of the statute, reviewed the 27.26 motion within the proper constitutional framework and in such a situation remand for resentencing is not constitutionally required. See Lawson v. State, 542 S.W.2d 796 (Mo.App.1976); Hudson v. State, 552 S.W.2d 244 (Mo.App.1977). The record before us on both the original trial and the 27.26 motion supports the trial court’s finding that discretion was exercised at the time of sentencing.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


text:
    Robert GALES, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38702.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 26, 1978.

      Huck, Kasten, Inc., St. Louis, for movant-appellant.
    John D. Danforth, Atty. Gen., Paul R. Otto, John M. Morris, Carson Elliff, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Thomas C. Muldoon, St. Louis, for respondent.
   SMITH, Judge.

Movant appeals from the trial court’s order, following evidentiary hearing, denying movant relief pursuant to Rule 27.26. We affirm. Movant was convicted in 1973 of murder in the first degree and sentenced to life imprisonment by the court pursuant to the second offender act. The conviction was affirmed on appeal. See State v. Gales, 507 S.W.2d 35 (Mo.App.1974).

Movant’s first contention is that the substituted information charged a different offense than the original indictment in violation of Rule 24.02. The original indictment was in two counts. The first was Murder First Degree and the second, Stealing from a Dwelling. The information filed in lieu of the indictment charged only Murder First Degree. The case was submitted to the jury only on the theory of felony-murder, the felony being robbery. Defendant infers from the indictment that the Grand Jury failed to find probable cause for the charge of robbery. Therefore, he argues the substituted information charges an additional and different offense from that charged by the indictment.

Both the original indictment and the substituted information charged the defendant with Murder First Degree in the common form, that is, willful, premeditated, deliberate killing with malice aforethought. Felony-murder was not, at the time of mov-ant’s trial, a distinct offense but only a means of committing murder in the first degree. The underlying felony was not an element of first degree murder; it merely provided the means of proving the felonious intent for first degree murder. State v. Chambers, 524 S.W.2d 826 (Mo. banc 1975) [4]. Thus a charge of Murder First Degree in the usual and common form allowed proof of a homicide committed in perpetration of one of the enumerated felonies, such as robbery. State v. Granberry, 484 S.W.2d 295 (Mo. banc 1972) [11, 12]; Boothe v. State, 534 S.W.2d 74 (Mo.App.1976) [2, 3]. The offense charged in Count I of the original indictment and in the amended information was exactly the same. The amended information simply dropped the second count. We will not and need not engage in guessing games as to what the grand jury intended by its two count charge. There is no variance between the murder charged in the indictment and that charged in the information.

Movant’s second point is that he was denied effective assistance of counsel due to failure of his attorney to produce two defense witnesses. This contention is based both upon movant’s claim that counsel did not expend sufficient effort to locate the witnesses and the state did not provide sufficient funds to the Public Defender’s Office for it to conduct a nationwide search for these witnesses. Movant admitted he burglarized the home of the victim but testified she was alive when he left and that shortly thereafter he saw the two witnesses enter the house. At the evidentiary hearing movant testified that, if the witnesses had been available, they would have taken the stand and admitted killing the victim and that movant was not a participant.

The trial court found that counsel had conducted an adequate search for the witnesses. We agree. The record shows that counsel followed up every lead given to him by movant or by movant’s family or others but was unable to locate the witnesses. The information given, other than the names, was spotty and indefinite at best. The investigation conducted was adequate under the circumstances (Pickens v. State, 549 S.W.2d 910 (Mo.App.1977) [4, 5]) and was a good faith effort to locate the witnesses (State v. Davis, 505 S.W.2d 115 (Mo.App.1973) [5]). We do not find the trial court’s finding clearly erroneous. Movant has filed a pro se brief in addition to that filed by his counsel. His contention that the trial court failed to make an adequate finding that movant was a second offender is inaccurate in law and fact, unpreserved, untimely and non-prejudicial. His attack on a reasonable doubt instruction is unsupported by law, unpreserved and untimely.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


text:
    Guss MAGGITT, Appellant, v. STATE of Missouri, Respondent.
    No. 39538.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 26, 1978.
    Fred Boeckmann, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, John M. Morris, III, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., David 0. Fischer, St. Louis, for respondent.
   SMITH, Judge.

Movant appeals from the action of the trial court, after evidentiary hearing, denying his motion pursuant to Rule 27.26. The motion sought to set aside movant’s second degree murder conviction and forty year sentence. We affirm.

On appeal movant advances two contentions, i. e. (1) that he was denied due process because the trial court did not order a pre-sentence investigation prior to sentencing movant and (2) that the self-defense instruction was improper because it did not include any reference to the burden of proof. Both of these matters could and should have been raised on movant’s direct appeal. Neither was. State v. Maggitt, 517 S.W.2d 105 (Mo. banc 1974). They are not the proper subjects for a Rule 27.26 proceeding. Sherrill v. State, 515 S.W.2d 611 (Mo.App.1974) [1, 2].

Additionally, the same attack on the same self-defense instruction has been rejected in State v. Cooksey, 499 S.W.2d 485 (Mo.1973) [5, 6]; State v. Tindall, 496 S.W.2d 267 (Mo.App.1973); State v. Nance, 508 S.W.2d 517 (Mo.App.1974) [2]; State v. Robinson, 516 S.W.2d 40 (Mo.App.1974) [1, 2]; Duncan v. State, 520 S.W.2d 123 (Mo.App.1975) [6]. We reject it again.

Similarly the contention concerning the pre-sentence investigation has been decided adversely to movant in State v. Maloney, 434 S.W.2d 487 (Mo.1968) [15-17]; Griffith v. State, 504 S.W.2d 324 (Mo.App.1974) [7-9]; State v. Tettamble, 517 S.W.2d 732 (Mo.App.1974) [7]; State v. Webb, 527 S.W.2d 728 (Mo.App.1975) [7-10]; State v. Goforth, 535 S.W.2d 464 (Mo.App.1976) [9, 10]. Movant contends that Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) supports his position that a pre-sentence investigation is mandatory. We disagree. Woodson involved the mandatory death penalty statute of North Carolina. In holding that the statute was unconstitutional because it was mandatory, the plurality opinion of the Court emphasized the qualitative difference between the death penalty and imprisonment for any length of time. The language of the decision must be read with that in mind. We do not interpret that opinion as making pre-sentence investigations in non-capital cases mandatory.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


author: REINHARD, Judge.

text:
    STATE of Missouri, Respondent, v. David LITTLE, Appellant.
    No. 39359.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 26, 1978.

      Fredman, Watkins, Fredman & Kopf, Richard A. Fredman, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Kathryn M. Krause, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent,
   REINHARD, Judge.

Defendant David Little appeals from a judgment of the trial court finding him guilty of robbery in the first degree. Defendant waived a jury. The court sentenced him to serve 13 years in prison. For reversal he argues that the court erred by: (1) denying his motion to suppress the identification testimony, and (2) in overruling his motion for a new trial because of the state’s failure to make an opening statement.

Due to the issues raised, a brief recitation of the facts is necessary. On January 8, 1977, at around 11:30 a. m., a person approached the desk clerk in the Warwick Motor Inn, a motel in downtown St. Louis, and asked for change for a dollar. The desk clerk, Joseph W. Knott, opened the cash register and reached for the money. At this point, the person pointed a gun at Knott and demanded the money in the cash drawer. Knott dashed away to alert the switchboard operator of this occurrence and summon the police. Knott looked back toward the cash register and saw the robber reaching over the counter and into the cash drawer. The robber, whom Knott later identified as the defendant, then ran from the hotel’s front entrance to make his getaway. Knott testified that he had the opportunity to observe the defendant for approximately two to three minutes.

The hotel’s manager, William C. Hotze, and a hotel engineer, Charles Angel, were getting off of the hotel’s elevator, located approximately 12 feet from the front desk, as the robber, identified by Hotze as defendant, was reaching into the cash drawer. Both hotel employees then chased the defendant out the front door and south on 15th toward Olive. At this point the robber stopped, turned around and pointed his gun at Hotze’s head. The defendant then pulled the trigger twice; however, the gun misfired both times. The defendant then turned away and continued his getaway. Hotze continued his chase. At this point, off-duty Detective Denber Bonds, after observing this chase and hearing calls for help from Hotze, apprehended the defendant near the intersection of 15th and Olive. Detective Bonds testified that the defendant threw his gun and approximately $270.00 to the ground at this time.

The defendant was then given his Miranda warnings and taken to the Fourth District Detective Bureau. In a statement made in the presence of Detective Bonds, the defendant admitted taking the money from the hotel. Knott and Hotze were brought to the police station, within an hour of the incident, in order to make an identification. Each testified that they identified the defendant. The identification was made in a room which only included the defendant and a uniformed police officer. Furthermore, the identifications were conducted so that each of these two witnesses was segregated while the other was making his identification of defendant. At trial the state offered the testimony of Knott and Hotze and Detective Bonds to prove its case. Knott and Hotze at trial were positive in their identification of defendant as the man who committed the robbery.

Defendant first argues that the trial court erred in denying his motion to suppress identification testimony because the procedures used at the pretrial show-up were impermissibly suggestive and conclusive to irreparable mistaken identification. The defendant also argues, aside from the allegedly suggestive show-up, that the witnesses did not have an independent basis for the in-court identification.

When there is proof of an independent source upon which a witness’ in-court identification is based, it is not necessary to examine the details of the questioned pre-trial identification procedure. State v. Ross, 502 S.W.2d 241, 246 (Mo.1973); Simms v. State, 568 S.W.2d 801 (Mo.App. St.L.Dist., 1978); State v. Mitchell, 558 S.W.2d 383, 385 (Mo.App.1977); State v. McDonald, 527 S.W.2d 46, 47 (Mo.App.1975); State v. Green, 515 S.W.2d 197, 198 (Mo.App.1974); State v. Davis, 507 S.W.2d 32, 34 (Mo.App.1974). We find that the questioned in-court identification had a basis independent of the questioned confrontation.

We can not accept defendant’s argument that the time of confrontation during the crime between each witness and the assailant was too short to make an indelible impression on the witnesses’ minds. Knott had a close face-to-face confrontation for a period of two to three minutes. Hotze saw him during the robbery, the chase, and the apprehension. Further, both witnesses had a gun pointed at his head by the defendant.

Defendant next argues that the court erred in overruling his motion for a new trial because of the state’s failure to make an opening statement as required by Rule 26.02(2).

Rule 26.02(2) provides as follows:

“(2) The prosecuting attorney shall make his opening statement outlining the evidence which will be offered in said case, and the counsel for the defendant may immediately thereafter make the opening statement for the defendant or he may reserve such opening statement until after the conclusion of the state’s case-in-chief.” (Emphasis added.)

Defendant argues that the use of the word “shall” in the rule makes this provision mandatory. The state argues, however, that because the case was tried without a jury, the requirement of an opening statement is unnecessary. In essence, the state argues that Rule 26.02(2) is only applicable in jury tried cases. In fact § 546.070, RSMo 1969 provides that after a jury has been impaneled “(1) The prosecuting attorney must state the case and offer the evidence in support of the prosecution; . . However, it has been held that the requirement that the state make an opening statement is mandatory under § 546.070, RSMo 1969. State v. Loeb, 190 S.W. 299, 303 (Mo.1916). A dual purpose has been attached to the requirement of an opening statement: to advise the jury of the facts which the state expects to prove, and to inform the defendant of the contemplated course of the prosecution in order that the defendant can meet the charge against him. State v. Ryun, 549 S.W.2d 141, 145 (Mo.App.1977); State v. Deppe, 286 S.W.2d 776, 780 (Mo.1956). If one of the purposes of the opening statement is to inform the defendant, as our courts have held, the requirement of the state’s opening statement exists in a court tried as well as a jury-tried criminal case.

However, despite the fact that an opening statement should have been given by the prosecutor in accord with Rule 26.-02(2), and § 546.070, RSMo 1969, there was no resulting prejudice to the defendant from such an error. Initially, in this case there was a plea proceeding at which time there was a complete statement made by the prosecutor, in the presence of the defendant, with regard to the evidence the state expected to adduce if the case went to trial. The court refused to accept defendant’s plea of guilty and defendant waived a jury. Thus, under these circumstances, the defendant had been apprised of the facts to be relied upon by the state for conviction. No confusion or surprise resulted from the failure of the prosecutor to make an opening statement, and the defendant was apprised of the facts so that he could fairly meet the accusations made against him. Defendant fails on this point.

Accordingly, the judgment of the trial court is affirmed.

GUNN, P. J., and KELLY, J., concur.

      . State v. Hardin, 555 S.W.2d 27, 29 (Mo. banc 1977) (one and a half minutes); State v. Patterson, 465 S.W.2d 599, 601 (Mo.1971) (two minutes).


author: CRIST, Judge.

text:
    Lee Vernon WARREN, Appellant, v. STATE of Missouri, Respondent.
    No. 40176.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 26, 1978.

      Goller, Hedrick & Lake, P. C., John H. Lake, Jefferson City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Marion G. Eisen, Asst. Circuit Atty., St. Louis, for respondent.
   CRIST, Judge.

Defendant entered a plea of guilty to a charge of murder in the First Degree on July 9, 1968 and was sentenced to life imprisonment. At the same time he was sentenced to two, concurrent, two year sentences on one count of Arson and two counts of Burglary in the First Degree. He has been in the custody of the Missouri Department of Corrections since that time.

On February 13, 1969, defendant filed a motion under Rule 27.26 to set aside the judgment and sentence. This motion was overruled on May 21, 1969 and affirmed on appeal 451 S.W.2d 30 (Mo.1970).

On August 20, 1970, defendant filed a second Rule 27.26 Motion which was dismissed without an evidentiary hearing. On appeal, 473 S.W.2d 427 (Mo.1971), the Court reversed the trial court’s summary dismissal and ordered an evidentiary hearing on the second motion on the ground that the trial court made no finding that the grounds for relief in defendant’s second motion were or could have been raised in his first motion as required by Rule 27.26(d).

On remand, defendant’s Rule 27.26 Motion was again overruled after an evidentia-ry hearing. On appeal, 501 S.W.2d 173 (Mo.1973), the Court affirmed the denial of his Rule 27.26 Motion.

Not being content with three rulings of the Missouri Supreme Court, defendant filed a third Rule 27.26 Motion on March 11, 1976. This third motion was summarily overruled on June 3, 1976 without an evi-dentiary hearing and without appointment of counsel for defendant.

The only new grounds alleged in his third Rule 27.26 Motion were that “(a) The sheriff threatened my life several times, he went far enough to come back from the docket and pulled a pistol on me; and said he would shoot me dead if I wouldn’t be quiet in the courtroom, and (b) The sheriff went even further in the courtroom by taking a seat behind me and harassed me into panicking and pleading guilty on a circumstantial case of Murder First Degree.” His third motion does not state any reason why such new grounds could not have been raised in his prior motions.

The trial court specifically found that the new grounds could have been raised in defendant’s prior motions, but were not, and that under the express terms of Rule 27.-26(d), defendant’s third Rule 27.26 Motion should be summarily dismissed.

For the reason that the trial court made findings of fact and conclusions of law on all issues presented, and specifically found that the new grounds for relief in defendant’s third Rule 27.26 Motion were or could have been raised in his first and second motions, we rule this point against the defendant. Warren v. State, supra and Shields v. State, 491 S.W.2d 6 (Mo.App.1973).

Defendant’s other POINTS RELIED ON was that “The Trial Court erred in dismissing Appellant’s motion as Appellant’s plea of guilty is on its face ‘involuntary’ and his subsequent conviction and sentence should have been set aside.” Rule 84.04(d) provides, “The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous, . . .” This rule is not satisfied by merely stating what the alleged error is claimed to be. The point must also state “wherein and why” the action or ruling of the trial court is claimed to be erroneous.

The appellate court has no duty to search out the argument portion of a brief to determine “wherein and why” the action or ruling of the trial court is erroneous. Nothing is preserved for review. State v. McClain, 541 S.W.2d 351 (Mo.App.1976) and Adkins v. State, 560 S.W.2d 67 (Mo.App.1977).

In any event, defendant’s allegation that his plea was a result of fear of the death penalty does not state a ground for relief. Taylor v. State, 539 S.W.2d 589 (Mo.App.1976). We reviewed the record for plain error under Rule 84.13(c) and find no manifest injustice or miscarriage of justice in ruling against the defendant on this point.

The judgment is affirmed.

CLEMENS, P. J., and SMITH, J., concur.


author: CLEMENS, Judge.

text:
    Clarence Louis TAMMONS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39150.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 26, 1978.

      Charles D. Sindel, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto and John M. Morris, Asst. Attys. Gen., Jefferson City, for respondent.
   CLEMENS, Judge.

Movant Clarence L. Tammons (hereafter “defendant”) has appealed from denial of his pro se Rule 27.26 motion without an evidentiary hearing. He had been convicted by a jury of possessing heroin and sentenced to fifteen years’ imprisonment. Affirmed on appeal. State v. Tammons, 522 S.W.2d 648 (Mo.App.1975).

In denying this motion the trial court ruled Tammons had failed to allege facts entitling him to relief. No evidentiary hearing was held and no attorney was appointed. Defendant’s sole contention on appeal is that the trial court erred by denying his motion without first appointing counsel.

Rule 27.26(h) provides counsel shall be appointed for an indigent when the motion presents questions of law or issues of fact. Defendant contends it is fundamentally unfair to expect a pro se motion to be drafted with professional quality. While this same argument was persuasive to two dissenting members of the court in Loflin v. State, 492 S.W.2d 770 (Mo.1975), the majority held that counsel need not be appointed if the Rule 27.26 motion does not plead facts which would entitle movant to relief. Wallace v. State, 556 S.W.2d 471 (Mo.App.1977); Loflin, supra. We are bound by those decisions.

In his Rule 27.26 motion defendant Tam-mons alleged failure of his appointed counsel, after our adverse decision on appeal, to apply for rehearing or transfer to the Missouri Supreme Court was a denial of his right to effective assistance of counsel. This claim is not cognizable under Rule 27.26 because, even if meritorious, the trial court could not give relief. In Cole v. State, 553 S.W.2d 877[9-10] (Mo.App.1977), we held that under Rule 27.26 a defendant may challenge counsel’s trial court errors only, not those on appeal. To the same effect, see Hamphill v. State, 566 S.W.2d 200[15, 16] (Mo.1978).

Judgment affirmed.

REINHARD, P. J. and GUNN, J., concur.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Thomas Clifford RIDEEOUTTE, Defendant-Appellant.
    No. 10724.
    Missouri Court of Appeals, Springfield District, Division Two.
    Oct. 2, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 18, 1978.

      John D. Ashcroft, Atty. Gen., Daniel F. Lyman, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Lloyd R. Henley, Springfield, for defendant-appellant.
   BILLINGS, Chief Judge.

Defendant Thomas C. Rideeoutte was convicted by a Greene County jury of burglary and stealing and has appealed. We affirm.

From the trial evidence the jury could reasonably find that defendant and Fred Walker unlawfully entered the Janss Lumber Company premises in Springfield during nighttime hours to steal a motor vehicle and in fact drove two company owned vehicles from the premises. Further, that following his arrest, the defendant voluntarily admitted his participation in the crimes.

Our review of the evidence leads to the conclusion there was substantial evidence to support the jury’s verdict and defendant’s contention challenging the sufficiency of the evidence is without merit. Defendant’s inculpatory statement revealed he and Walker went to the lumber company for the express purpose of stealing a car or truck; that they entered the lumber company premises shortly after midnight and took two vehicles, using one as a battering ram to force open locked shed doors. The fact that the vehicle used to ram the door was found abandoned a short distance away from the lumber company is of no consequence. Defendant’s alibi defense was rejected by the jury and there was no evidence defendant intended a mere temporary deprivation of the vehicles for mere joy-riding as his brief suggests. The evidence was sufficient for the jury to find that the actions of defendant and his cohort demonstrated an intent to permanently deprive the vehicles’ owner of the property. State v. Sturgell, 530 S.W.2d 737 (Mo.App.1975).

By pretrial motion the defendant unsuccessfully sought suppression of his oral and written inculpatory statements to officers. He claimed his arrest was without probable cause and this in turn tainted his confessions. The failure of the trial court to sustain his suppression motion is assigned as error in this appeal.

The trial court conducted an eviden-tiary hearing on defendant’s motion. The evidence adduced disclosed that at the time defendant was arrested he was at the police station and Springfield officers possessed the following information: the Janss Lumber Company had been entered the night before and two motor vehicles stolen; Walker and a man fitting defendant’s description had entered a grill that night and Walker told the waitress “they” had gotten a car and it was parked out back; Walker and defendant’s girl friend were taken into custody the following night and defendant was present when the two were arrested; defendant came to the police station to see about his girl friend; an officer checked defendant’s description over the telephone with the waitress and she accurately described defendant; Walker gave the officers a statement implicating defendant, whereupon defendant was placed under arrest. There was ample probable cause for defendant’s arrest. State v. Greenhaw, 553 S.W.2d 318 (Mo.App.1977). The point is denied.

The defendant also contended his statements were not voluntarily given and the result of unconstitutional methods employed by the officers. There was substantial evidence that defendant was given Miranda warnings and orally confessed his participation in the crimes a few minutes after he was arrested. Likewise, there was substantial evidence that defendant signed a printed waiver of Miranda rights and thereafter gave officers a signed statement admitting his involvement in the burglary and theft. We find no error of law in the trial court’s determination that defendant’s statements were voluntarily given and met constitutional standards. At defendant’s trial the statements were received in evidence and the jury given MAI-CR 3.44 on their voluntary nature.

In this appeal the defendant’s principal point is his attack on the hearsay testimony of Detective Jared which implicated defendant in the crimes. The detective testified that it was only after Walker’s statement had been read aloud to the defendant did the latter agree to make a written statement concerning his involvement in the lumber company theft. As earlier indicated, the voluntary nature of defendant’s statements was a trial issue and the detective’s testimony was elicited by the state in attempting to show the written statement was made voluntarily.

The problem with this averment of error by defendant is that it is not preserved for our review because a timely and proper objection was not made. Error in the admission of evidence in the trial court must be preserved for appellate review by an objection in proper form and timely made. State v. Simmons, 500 S.W.2d 325 (Mo.App.1973). “One cannot sit by and gamble on the outcome and, if he loses the gamble, then, for the first time, make a tergiversat-ing objection. If he chooses to gamble he must abide his wager.” Brown v. Thomas, 316 S.W.2d 234 (Mo.App.1958).

Defendant’s reliance on State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972), and State v. Johnson, 538 S.W.2d 73 (Mo.App.1976), and cases cited therein, overlooks the fact that in those cases a timely and proper objection was lodged by the defendant against the hearsay evidence and overruled. Such is not the situation here, as the transcript reflects:

“Q: At the time you talked to Mr. Ri-deeoutte did you have any discussion with him in regard to a statement by Mr. Walker?
A: Yes, sir, we did.
Q: What did you say to Mr. Ri-deeoutte?
A: After Mr. Walker — correction—after Mr. Rideeoutte denied being involved in the burglary at that time, we had a statement that was taken by some other officers the previous evening from Mr. Walker that implicated him in the burglary, and I read the statement of Mr. Walker in the presence of Mr. Rideeoutte.”

The record shows that it was only after Walker’s written waiver of rights and statement had been identified by the detective and the state proposed to offer these exhibits that an informal complaint was made to the trial court that the introduction of Walker’s written statement would be prejudicial to him. The court, sua sponte, invited an objection from the defendant and sustained the same. Thereupon, the court, of its own initiative, instructed the jury to disregard the questions and answers to the witness concerning Walker’s statement and at defendant’s request gave a similar written instruction which limited the jury’s consideration to the voluntary nature of defendant’s statements. Defendant sought no other relief. He did not seek a mistrial and, as the record clearly indicates, received relief from the trial court beyond that which he requested. Under the circumstances, we cannot convict the trial court of error. State v. Wendell, 542 S.W.2d 339 (Mo.App.1976).

We also observe that in earlier testimony Officer Bledsoe had testified, without objection or motion to strike, that after defendant had been advised that Mr. Walker “had already talked to us about the burglary at Janss Lumber Company” he orally admitted his participation in the crimes. Consequently, the hearsay testimony of Detective Jared which implicated defendant was cumulative to similar evidence already in the record. State v. Marshall, 354 Mo. 312, 189 S.W.2d 301 (1945); 24B C.J.S. Criminal Law § 1915(5) (1962).

We have reviewed defendant’s remaining assignments and find no error of law.

The judgment is affirmed.

HOGAN, J., and RAGLAND, CONLEY and YEAMAN, Special Judges, concur.

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


author: GUNN, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ernest THOMAS, Defendant-Appellant.
    No. 39184.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 3, 1978.

      Robert C. Babione, Public Defender, Frank R. Fabbri, III, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Reginald H. Turnbull, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.
   GUNN, Presiding Judge.

In a jury waived case, defendant was found guilty of seven counts of first degree robbery. He was assessed ten years imprisonment on each count with the sentences running concurrently. He contests only the conviction on one count on the basis that the victim did not appear in court to testify against him. We affirm.

The evidence establishing defendant’s guilt is overwhelming. In mid-August in St. Louis, defendant and a companion entered Seady’s Bar and Cafeteria, produced pistols and announced a holdup. The proprietor and the six customers in Seady’s were ordered to put their money and watches on a table and were then herded and locked in the restroom. Police interrupted defendant and his companion as they were leaving Seady’s with their mal-gained lucre. Mr. Seady and five customers testified as to defendant’s nefarious activities and positively identified defendant as the robber of their property. One of the victims of the robbery — Dave Barbeau — did not testify. Defendant was convicted in separate counts of the first degree robbery of Mr. Seady and each of the six customers, including Dave Barbeau. It is the conviction for the robbery of Dave Barbeau on which defendant bases his appeal. He does not challenge the conviction on the six other counts.

On appeal defendant claims that there was insufficient evidence of proof of the first degree robbery of Dave Barbeau, in that the State did not prove that Barbeau owned or possessed any property; that he was robbed of anything; that he was fearful; or that there was intention to permanently deprive him of his property. From the testifying witnesses the evidence was clear that defendant pointed a weapon at Barbeau who, upon command, placed his gold wristwatch and money clip with money on a table, as did the other victims of the robbery. The evidence clearly established that it was defendant’s gun and command which forced Barbeau to yield possession of his watch and money. It was not necessary — as maintained by defendant — that the State make actual proof of ownership of the property, as that is not a necessary element in a charge of robbery. State v. Scott, 534 S.W.2d 537 (Mo.App.1976); State v. Manns, 533 S.W.2d 645 (Mo.App.1976).

When Barbeau placed his watch and money on the table at defendant’s pistol-reinforced direction, possession and control of the items passed from Barbeau to defendant, and it is chimerical to suggest that defendant had no intent to deprive Barbeau of his property. Nor does the fact that Barbeau was forced to be locked in a restroom strengthen defendant’s case. The fact that defendant was unable to complete his escape from Seady’s with the loot does not lessen the fact he had control of the property with intent to permanently deprive Barbeau of possession. State v. Atkins, 549 S.W.2d 927 (Mo.App.1977); State v. Charles, 537 S.W.2d 855 (Mo.App.1976); State v. Thomas, 525 S.W.2d 833 (Mo.App.1975). The element of fear was sufficiently established by the fact that Barbeau did as he was commanded when a gun was pointed at him. State v. Nylon, 563 S.W.2d 540 (Mo.App.1978).

Defendant also contends that inasmuch as Barbeau did not testify, he was not confronted by his accuser nor permitted to cross-examine him. Hence, according to defendant, the robbery count against Barbeau should have been dismissed. The State’s evidence established that defendant robbed Barbeau. The precise point raised by defendant here was considered and reviewed in State v. Triplett, 520 S.W.2d 166 (Mo.App.1975). In Triplett, the defendant was convicted of assault with intent to kill Kenneth King. King did not testify, and the case was presented on testimony of witnesses to the assault. In upholding the conviction, the court stated in State v. Triplett, id. at 171:

“Defendant also advances the argument that he was denied a fair trial and that his Sixth Amendment rights were violated because he was unable to cross-examine and confront Kenneth King [the victim], * * * King did not appear as a witness at defendant’s trial. But the state has no obligation to place any person on the witness stand in a criminal trial. State v. Eaton, 302 S.W.2d 866, 874[8] (Mo.1957). Likewise, there is no requirement that a defendant be confronted by all witnesses who might have been called by the state. State v. Napolis, 436 S.W.2d 645, 649[8] (Mo.1969); State v. Nolan, 499 S.W.2d 240, 251[6] (Mo.App.1973). Because King never did testify at trial, the right to cross-examine and confront him never arose. State v. Ivey, 442 S.W.2d 506, 508[4] (Mo.1969). Defendant’s allegations on this point are without merit.”

So, too, in this case, defendant’s allegation that he is entitled to relief as he was denied confrontation of the victim is without merit.

Judgment affirmed.

KELLY and REINHARD, JJ., concur.

      . It does not appear that defendant was prejudiced by the conviction for the robbery of Dave Barbeau, as punishment on all seven counts, including Barbeau’s, was assessed to run concurrently. His time of imprisonment would not be reduced even by our ruling in his favor. Nor can we perceive adverse collateral consequences by our ruling against defendant on this appeal. See Sanders v. United States, 541 F.2d 190 (8th Cir.1976).


text:
    STATE of Missouri, Plaintiff-Respondent, v. David HAYES, Defendant-Appellant.
    No. 39258.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 3, 1978.

      Robert C. Babione, Public Defender, Christelle Adelman-Adler, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, John M. Morris, III, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty. and Gordon L. Ankey, St. Louis, for plaintiff-respondent.
   CRIST, Judge.

David Hayes was charged with operating a motor vehicle without the consent of its owner and with assault with intent to kill with malice aforethought. He was found guilty by a jury as charged on the first count, operating a motor vehicle without the owner’s consent, and guilty of the second count of the lesser included offense of assault with intent to do great bodily harm. The court found that the Habitual Criminal Act was applicable and assessed punishment at five years imprisonment on each count, sentences to run concurrently.

Defendant did not testify and offered only one exhibit in his defense.

At about 6:00 p. m. on September 10, 1976, one William Burd parked his car, a 1962 Chevrolet, in a lot next to his house, located in the City of St. Louis. At approximately 11:00 p. m. on that date, Mr. Burd received a call from the police department and learned at that time that his car had been missing. He went to the police station and identified his automobile. He saw the defendant at the police station. He had never met the defendant before, nor had he given him permission to drive his (Burd’s) automobile. At 10:30 p. m. on the same evening, a St. Louis police vehicle occupied by Officers Corbin and Keough was stopped at a traffic, light at 14th & Olive Streets, with two other vehicles stopped to their left, one behind the other. While there, they saw a 1962 Chevrolet driven by defendant approach from behind and collide with the rear of the second of two vehicles in the traffic lane to their left. The officers drove around the corner, stopped their vehicle, and walked to the other vehicles to check for injuries. After Corbin checked the first two vehicles, he began walking toward the third, the Chevrolet. At this time, the Chevrolet was backing up. It began going forward, slowed somewhat, then swerved into the right-hand lane, and accelerated directly toward Corbin. Corbin jumped over the front of the automobile to get out of the way. When he did so his nightstick hit the windshield of the car and cracked it. Corbin landed on the pavement, but was not injured, nor was he hit by the moving Chevrolet.

Corbin’s partner, Officer Keough, pursued the Chevrolet. This chase lasted approximately two or three minutes when the defendant apparently lost control of the Chevrolet, struck a parked vehicle and then a side of a building. The Chevrolet stopped, but it backed up and struck an unmarked police vehicle.

Keough got out of his vehicle, ran to the driver’s side of the Chevrolet, and observed that the defendant appeared to be stunned for a moment, then he slid toward the passenger’s side of the car, exited, and ran from the scene. The officers chased him and three minutes later, defendant was arrested in the 700 block of Washington.

The court instructed the jury on operating a motor vehicle without the owner’s consent on Count I. It further instructed the jury on (1) assault with intent to kill with malice aforethought, (2) assault with intent to kill without malice aforethought, and (3) assault with intent to do great bodily harm without malice on Count II. The court refused defendant’s offered instruction on common assault on Count II.

A verdict of guilty of operating a motor vehicle without the owner’s consent was returned on Count I, and a verdict of assault with intent to do great bodily harm without malice was returned on Count II.

Defendant first assigns error in the trial court’s refusal to submit to the jury his offered Instruction A on the lesser included offense of common assault. He has failed to set forth in full Instruction A in the argument portion of his brief, as required by Rule 84.04(e). Accordingly, this point is not preserved for appellate review. State v. Gilbert, 544 S.W.2d 595, 597 (Mo.App.1976). We have reviewed this point under plain error Rule 27.20(c), and conclude that there was insufficient evidence to support a submission of the lesser included offense of common assault. State v. Howell, 524 S.W.2d 11 (Mo. banc 1975).

Defendant also complains that the court erred in giving two verdict directors which both submitted a felonious assault without malice aforethought under § 559.-190 RSMo. 1969. The court had given one verdict director under § 559.180 RSMo. 1969 submitting felonious assault with malice aforethought. It then gave two verdict directors under § 559.190 RSMo. 1969 finding either that defendant was guilty of the assault with intent to kill without malice or, in the alternative, that he was guilty of assault with intent to do great bodily harm without malice. For the reason that the higher offenses submitted were proved by the state, we find no merit in his contention.

A case was clearly made on all charges, the requisite intent of malice being inferable from defendant’s conduct — specifically, his driving straight forward, his visible hesitation, and then his turning the vehicle to the right and sudden acceleration directly toward Officer Corbin. The state is entitled to submit instructions on all alternative theories of guilt so long as each theory is supported by the evidence. State v. Mullen, 532 S.W.2d 794, 797 (Mo.App.1975).

Defendant’s last contention is that the court erred in sustaining the state’s objection, in closing argument, to the defendant’s attempt to argue that he had permission to operate the motor vehicle in question. Mr. Burd testified unquestionably that the car was his and that the defendant did not have permission to use it. There was no contradicting testimony. Defendant attempted to argue that Mr. Burd gave defendant permission to drive the car which argument was objected to on the ground that it was beyond the scope of any evidence, and that there was no testimony relative thereto. The objection was sustained. We find that the trial court’s action was not an abuse of sound discretion.

In State v. Bailey, 526 S.W.2d 40 (Mo.App.1975) the court stated: “A basic principle governing jury argument is that counsel should refrain from arguing matters not in evidence.” In State v. Williams, 546 S.W.2d 54 (Mo.App.1976) the court held that the trial court has wide discretion in controlling arguments of counsel. We do not believe that the trial court abused its discretion in this case.

The judgment is affirmed.

CLEMENS, P. J., and SMITH, J., concur.


text:
    STATE of Missouri, Respondent, v. Alvin Eugene COUNTS, Appellant.
    No. 39624.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 10, 1978.

      Jack L. Duncan, Flat River, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto and Eric Martin, Asst. Attys. Gen., Jefferson City, Gary E. Stevenson, Pros. Atty., James E. Pennoyer and Thomas L. Ray, Jr., Farmington, for respondent.
   CLEMENS, Judge.

The state charged defendant Alvin Counts with committing three acts of sodomy on his twelve-year-old stepson, Douglas Aubuchon. A jury found defendant guilty on the first two counts but not guilty on the third. The jury was unable to agree on punishment and the trial court assessed punishment at two concurrent life terms.

Defendant has appealed, contending the victim’s testimony was so contradictory and unconvincing that it was insufficient to sustain the convictions absent corroborating testimony. The state, citing State v. Lee, 404 S.W.2d 740[12, 13] (Mo.1966), responds that there was clear evidence of guilt and hence no need for corroboration. The issue so framed calls for a recitation of the pertinent evidence.

Defendant and Douglas’ mother had been married twice, from 1964 to 1970, and from 1973 to 1977. They had three other, younger children. During the marriages the parties had several separations, and Douglas sometimes lived with his maternal grandmother, Jerri Douglas. The charged acts occurred during the second marriage, when Douglas was thirteen years old.

The only testimony of the charged sodo-mous acts came from Douglas. His testimony as to each of these:

May 30, 1975 (Count II): While Mrs. Counts was hosting an overnight girls’ bunking party, defendant took Douglas on an overnight fishing trip. Defendant told Douglas to lay beside him and to take off his pants; defendant then inserted his penis in Douglas’ rectum. Douglas did not resist “much” because “he was holding me” and “if I’d fight him he hurt me.” He first related this episode to his grandmother several months later.

November 23, 1976 (Count I): While Douglas’ mother had gone to the store defendant had the other children leave the house. He called for Douglas to come into a room where defendant was lying down, and on defendant’s order Douglas took defendant’s penis into his mouth. Douglas did not struggle because “I knew he’d hit me; he’s done it before when I struggled.” At the preliminary hearing Douglas had denied the occurrence of November 23, but at trial explained he had been confused as to the date.

We omit Douglas’ testimony concerning defendant’s conduct on August 7, 1976 (Count III), on which the jury found defendant not guilty. No evidence of that episode is helpful to defendant other than that the testimony refuted the occurrence being on that date.

Other evidence of defendant’s relationship and conduct with Douglas came from prolonged cross examination of Douglas:

Two or three weeks after the May 30, 1975 incident defendant again took Douglas hunting and at least tried anal penetration; Douglas struggled but defendant was holding him tight. A long time before, when Douglas was seven or eight, defendant began making Douglas “suck him” and Douglas “did that all the time.” At the beginning, Douglas struggled, but later gave up because defendant not only threatened to kill him but many times slapped and beat him and pulled his hair.

Because he feared defendant, Douglas was afraid to tell others but finally, after the two alleged incidents he told his grandmother about them. They then told his uncle who told Douglas’ mother and she reported the information to a juvenile officer.

Douglas testified of his feelings toward defendant. He did not hate him but would like to get even with him for what he had done.

On re-direct examination Douglas testified he remembered the dates of the two charged offenses because he connected the times with other occasions, such as holidays or “something special that happened to me.” He said at the beginning he didn’t know all the other acts of sodomy were wrong; that defendant sometimes had him commit oral sodomy two or three times a week when his mother was at work.

Defendant testified to a normal step-parent relationship with Douglas and denied all the sodomous acts Douglas had testified to. As to the August 7, 1976 charge in which defendant was found not guilty, defendant and his father and mother testified that on that date he was in their home, recovering from an automobile collision.

In rebuttal Patricia Herndon testified she had known Douglas’ family well, and on numerous occasions had seen defendant grab and shake Douglas and call him vulgar names. Defendant denied all this in surre-buttal.

As a premise to his contention that the conviction cannot stand because the state failed to present corroborating testimony, defendant argues that Douglas’ testimony as to the two charged offenses was “contradictory and unconvincing.” We deny that premise; as to the two charged offenses, quoted above, Douglas’ testimony was reasonably straightforward and definite, and was contradicted only by defendant’s self-serving denial.

Defendant makes specific arguments as to what he considers weaknesses in Douglas’ testimony. He points to Douglas’ prolonged lack of complaint. The state responds by citing Douglas’ tender years when the assaults began and his fear of defendant’s threats and physical abuse. Next, defendant relies on Douglas’ admitted animosity toward defendant. Neither of these arguments, nor others raised by defendant, detracts from the submissibility of the state’s case; they go only to Douglas’ credibility, which the jury obviously accepted.

Considering the state’s evidence in its entirety on the two challenged offenses we hold it was neither contradictory nor unconvincing.

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.

      . The Testimony:
      “A. Well, he said, ‘Come here,’ and I went over there and then he told me to pull down my pants. And I did. And he told me to lay down and I did what he said.
      Q. What happened next, Doug?
      A. Then he pulled down his pants and then he raped me.
      Q. Was it in your rear, Doug?
      A. Yes.
      Q. Could you tell it was his sexual organ?
      A. Yes.
      Q. Did it go in?
      A. Yes.
      Q. How long did it last?
      A. Oh, anywhere from about four minutes.

      . The Testimony:
      “A. Well, he hollered for me and he said, ‘Come here, Doug.’ And I just figured he wanted me to get him coffee and stuff. I always get it for him. And then he was laying there with his pants down, and he told me to get down there and suck him.
      Q. What happened next, Doug? Tell these gentlemen.
      A. Well, I done what he told me to do, and then after that I, after he got finished, I went and spit it out in the bathroom.
      Q. Did he have his sexual organ in your mouth, Doug?
      A. Yes.
      Q. And then you went to the bathroom and spit it out?
      A. Yes.
      Q. Did you struggle or fight or anything, Doug?
      A. No.
      Q. Why?
      A. Because I knew he’d hit me.
      Q. How did you know that?
      A. Because he said he’d do it. He’s done it before when I’ve struggled.”

      . Citing State v. Bursley, 548 S.W.2d 586, 1. c. 589 (Mo.App.1976).