text:
    Thomas R. LEWIS, Appellant, v. Vickie Dawn LEWIS (Now Gwaltney), Appellee.
    Supreme Court of Kentucky.
    Feb. 20, 1976.
    J. D. Craddock, III, Hensley, Mintmire & Craddock, Munfordville, for appellant.
    Jon William Goodman, Munfordville, for appellee.
   STERNBERG, Justice.

This is an appeal from a judgment of the Hart Circuit Court awarding the custody of Laurie Jean Lewis to appellee Vickie Dawn Lewis.

Appellant Thomas R. Lewis and appellee were married on July 3, 1969, in Riverside County, California. Their only child, Laurie Jean, was born October 17, 1970.

On January 3, 1975, Thomas filed a petition for dissolution of marriage. The issue of custody was referred to the court’s commissioner for the taking of proof. In his report, the commissioner recommended that Vickie receive custody of the child. Thomas filed exceptions to this report.

The court granted dissolution of the marriage on March 22, 1975; however, a determination of the question of final custody was withheld. The court explained:

“That it would be best to all parties concerned that the temporary custody of the infant child, LAURIE JEAN LEWIS, remain with the Petitioner until such time as the Petitioner and Respondent are given an opportunity to establish their new homes and until this Court can receive a report from the Department of Human Resources or some other similar governmental agency as to the fitness of each home for the infant child and a permanent child custody decision is reached by this Court.”

Thomas married Barbara Clymer Bowser. Vickie married Ronald Gwaltney.

The trial judge received reports regarding the newly established homes of Vickie and Thomas from social workers in Jefferson County, Kentucky, and in White County, Illinois. The reports, addressed to the trial judge and dated April 30, 1975, and May 29,1975, respectively, were filed in the record on June 2, 1975. The clerk of the court failed to forward a copy of the reports to either counsel.

On June 10, 1975, eight days after the reports were entered in the record, the court entered judgment awarding custody of the child to Vickie. No hearing was held on the question of custody subsequent to the reports being filed. Thomas appeals from this judgment.

The two questions raised on appeal are (1) whether the court erroneously failed to comply with KRS 403.300 in admitting reports by social workers concerning which parent should have custody of the child, and (2) whether the award of custody to the .appellee was clearly erroneous.

Thomas contends that the court erroneously failed to follow the procedures outlined in KRS 403.300 with respect to investigative reports in child custody proceedings.

KRS 403.300 provides .that in child custody proceedings the court may order an investigation and report to be made by such an agency as the court selects. Subsection (3) of this statute provides:

“The clerk shall mail the investigator’s report to counsel and to any party not represented by counsel at least 10 days prior to the hearing. The investigator shall make available to counsel and to any party not represented by counsel the investigator’s file of underlying data, and reports, complete texts of diagnostic reports made to the investigator pursuant to the provisions of subsection (2), and the names and addresses of all persons whom the investigator has consulted. Any party to the proceeding may call the investigator and any person whom he has consulted for cross-examination. A party may not waive his right of cross-examination prior to the hearing. (Enact. Acts 1972, ch. 182, § 20.)”

Thomas states that he was not given notice of the existence and contents of the reports pursuant to KRS 403.300, supra, and he argues that since he was not given notice he was unable to utilize effectively his right to cross-examine the social workers who made the reports.

This argument appears to have merit. Thomas was aware that the court was going to solicit a report from the Department for Human Resources or some other similar governmental agency as to the fitness of each home for the infant child, but a copy of the reports was never sent to him. Certainly, Thomas cannot be expected to exercise his right to cross-examine in the absence of knowledge of the identity of the investigators or of the contents of the reports. Furthermore, he did not waive his right to cross-examine, since the right may not be waived prior to a hearing, and no hearing was held subsequent to the filing of the reports. Clearly, the mandate of KRS 403.300(3) has not been followed.

It is not necessary for this court to decide the question of whether, in light of the evidence, the trial court abused its discretion in awarding custody of the child to Vickie since new and additional evidence may appear in the remanded proceedings requiring reevaluation by the trial court.

In view of the court’s action in ordering and securing reports from the Department for Human Resources, it should not have made an award of permanent custody until after the provisions of KRS 403.300 had been fully complied with. The case is being returned to the trial court so that counsel may be afforded a speedy evidentiary hearing at which they may fully explore the reports and the court thereby be more fully informed as to which of the parents would provide a home for the infant which would be more beneficial to her general welfare. In the meantime, the custodial arrangements now existing need not be changed.

To the extent that the judgment awards permanent custody, it is vacated and the case remanded for further proceedings consistent with this opinion.

All concur.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    Daryl HAMILTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    March 19, 1976.

      Anthony M. Wilhoit, Public Defender, Anna Isaacs, Asst. Public Defender, Frankfort, for appellant.
    Ed W. Hancock, Atty. Gen., Guy C. Shearer, Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

On April 19, 1974, Daryl Hamilton was convicted in the Kenton Circuit Court on a charge of storehouse breaking.

The indictment upon which he was charged and convicted contained two counts, and was returned by the grand jury on January 16, 1974. The first count charged Hamilton with the offense of storehouse breaking. The second count charged him with being an habitual criminal.

The jury returned a verdict of guilty on the charge of storehouse breaking, and fixed his punishment at confinement in the penitentiary for a term of four years. The jury found him not guilty of being an habitual criminal. Hamilton was sentenced in accordance with the jury’s verdict.

Hamilton appeals on two grounds. He contends that, (1) he was entitled to a directed verdict of acquittal for the reason that the evidence was insufficient to sustain a verdict of guilty, and (2) the habitual criminal charge based on a 1971 conviction in Kenton Circuit Court was invalid because there was improper waiver of juvenile jurisdiction to the circuit court.

This court finds no merit in Hamilton’s first contention. The totality of the evidence created a submissible issue of fact for the jury’s consideration.

Although the jury found Hamilton not guilty under the habitual criminal charge, the submission of that charge to the jury was improper. At the request of this court, the record in this case was supplemented to provide a copy of the waiver of Hamilton from the juvenile court to the circuit court. The waiver does no more than parrot the language of KRS 208.-170(1). The waiver provides that the action of the juvenile court’s waiver was “for the best interest of Daryl Raymond Hamilton and the public.” This court on a number of occasions has held such waiver inadequate, and requires:

“[Ejither the waiver order, an accompanying statement or, the juvenile record must include (1) a showing that the juvenile had a hearing at which he was represented by counsel, and (2) a statement of the reasons for the transfer which are specific enough to permit meaningful review for the purpose of determining whether there has been compliance with KRS 208.170(1).” Hubbs v. Commonwealth, Ky., 511 S.W.2d 664, 666 (1974); See also Risner v. Commonwealth, Ky., 508 S.W.2d 775 (1974).

Hamilton’s punishment on Count No. 1, storehouse breaking, was fixed by the jury at confinement in the penitentiary for four years. (The maximum penalty for the charge was five years.)

The waiver from Kenton Juvenile Court to Kenton Circuit Court was dated December 12,1970. Hamilton was 16 years old at the time. Subsequent to. the waiver, Hamilton was indicted on a charge of storehouse breaking. On February 1, 1971, Hamilton appeared in court with counsel and entered a plea of guilty. He was 17 years old at that time. The trial court sentenced him to a term of two years in the penitentiary. No attack was made as to improper waiver at that time. The question of waiver from juvenile court was not attacked until the indictment in this case was returned. At that time, Hamilton was 21 years of age.

We find no merit in the Commonwealth’s argument that Hamilton was barred from contesting the validity of his 1971 conviction. This court has allowed several methods of attack on invalid waivers from juvenile court. In Hubbs, supra, the question was raised by direct appeal. If the jurisdictional attack was not raised at the trial, this court has considered it on appeal. Anderson v. Commonwealth, Ky., 465 S.W.2d 70 (1971). Where there has been no appeal, this court has been presented with the matter by habeas corpus. Robinson v. Kieren, 309 Ky. 171, 216 S.W.2d 925 (1949). The problem was presented to this court on recidivist proceedings based on a prior conviction. Thomas v. Commonwealth, Ky., 437 S.W.2d 512 (1969); Copeland v. Commonwealth, Ky., 415 S.W.2d 842 (1967). The court recently disallowed a collateral attack on the waiver in a RCr 11.42 proceeding where a prior appeal had been abandoned. Holt v. Commonwealth, Ky., 525 S.W.2d 660 (1975).

Hamilton properly raised the invalidity of the improper waiver to circuit court in the recidivist proceedings. First, he made a pre-trial motion to strike the habitual criminal count of the indictment alleging improper waiver. He preserved his challenge to the improper waiver throughout the trial.

This court does not accept the argument of the Commonwealth that since Hamilton was acquitted of the charge as an habitual criminal, no prejudice was shown. It is indeed ironic that Hamilton received the same penalty on Count No. 1 as he would have received had the jury found him guilty on Count No. 2. The court might be able to accept the Commonwealth’s argument of no prejudice had Hamilton received a lesser sentence on Count No. 1. The Supreme Court held:

“[t]he admission of a prior criminal conviction which is constitutionally infirm . is inherently prejudicial and we are unable to say that the instructions to disregard it made the . . . error ‘harmless beyond a reasonable doubt! ..” Burgett v. Texas, 389 U.S. 109,115, 88 S.Ct. 258, 262, 19 L.Ed.2d 319 (1967).

The count charging Hamilton as an habitual criminal was based upon an invalid conviction on a charge of storehouse breaking in 1971, when he was 16 years of age. Since the waiver was invalid, the circuit court had no jurisdiction to try Hamilton on that charge.

The judgment is reversed with directions that Hamilton be granted a new trial on Count No. 1, charging him with the offense of storehouse breaking.

REED, C. J., and JONES, PALMORE and STERNBERG, JJ., concur.

LUKOWSKY, J., concurs in result only.

CLAYTON and STEPHENSON, JJ., dissent.


author: PALMORE, Justice.

text:
    DEPARTMENT OF REVENUE, Commonwealth of Kentucky, Appellant, v. INDIAN HEAD MINING COMPANY, INC., et al., Appellees.
    Supreme Court of Kentucky.
    March 19, 1976.
    William S. Riley, Asst. Atty. Gen., William P. Sturm, Atty., Legal Staff, Dept, of Revenue, Frankfort, for appellant.
    A. P. Gullett, Cooper, Gullett, Combs & Engle, Hazard, for appellees.
   PALMORE, Justice.

The question here is whether a piece of equipment used in connection with a coal-mining operation is exempt from the use tax (KRS 139.310) under KRS 139.480(8) and KRS 139.170.

KRS 139.480(8) excludes from the tax “Machinery for new and expanded industry,” which is defined by KRS 139.170 as “that machinery used directly in the manufacturing process,” etc.

The appellee is engaged in a form of deep-mining called “punch-mining.” A bulldozer and end-loader, or “wheel loader,” are used to clear the overburden from a seam of coal, which is then undercut, blasted loose, and removed to a dumping point outside the mine entrance, where the wheel loader is used to pick up the coal and put it into trucks. The coal is thence hauled by truck to the tipple for cleaning, sizing and ultimate shipment by rail to the appellee’s customers. The Board of Tax Appeals held (emphasis added) “that the 745 wheel loader is used directly in the mining or manufacturing process even though it is used 20% of the time for opening the mine entrance and 80% of the time for loading coal. Either or both of these uses are within the mining and manufacturing process.” This order was upheld on appeal to the Franklin Circuit Court, following which this court granted a motion for appeal by the Department of Revenue.

KRS 132.200, which pertains to ad valorem taxes, excludes certain classes of property from local taxation. One of these is: “Machinery and products in course of manufacture, of individuals or corporations actually engaged in manufacturing,” etc. In Colley v. Eastern Coal Corporation, Ky., 470 S.W.2d 338, 340 (1971), this court held that the process by which coal is cleaned, sized and made ready for marketing does not constitute “manufacturing” within the meaning of that statute, because “the basic character and kind of material processed by Eastern remained the same throughout the process. The substance was coal when it was extracted from the mine and subjected to the processing, and it was coal at the conclusion of the processing. . . .We choose ... to give full force here to the proposition . . . that processes designed, to remove impurities from raw materials while leaving the latter unchanged are not manufacturing processes within the tax-exemption statutes.” 470 S.W.2d at p. 340.

That the obvious purpose of KRS 139.-480(8) was to encourage “new and expanded industry” does not obscure the unequivocal language of KRS 139.170 limiting such machinery to that which is used in the process of manufacturing. The processing of coal following its extraction from the earth has been categorically held not to be manufacturing. It is inescapable that neither can the mere physical transfer of material from one place to another in the course of a nonmanufacturing process be itself called “manufacturing.” If this result does not comport with the objectives of the statute, the remedy is a matter of legislation, wherein the limitation originated.

Schenley Distillers, Inc. v. Commonwealth, Ky., 467 S.W.2d 598 (1971), involving a conveyor system used in bottling liquor, is not in point, because there the whole operation was a manufacturing process, whereas in this instance the whole operation is a nonmanufacturing process.

We express no opinion with respect to the propriety, vel non, of the revenue department’s administrative regulation (SU 6-1) purporting to classify the extraction phase of coal mining as a manufacturing process.

The cause is reversed with directions that a new judgment be entered in conformity with this opinion.

All concur.


text:
    Bill CALHOUN et al., Appellants, v. Clifford R. CASSADY, etc., et al., Appellees. Clifford R. CASSADY, Supt. of Rowan County School System, et al., Cross-Appellants, v. Bill CALHOUN et al., Cross-Appellees.
    Supreme Court of Kentucky.
    March 19, 1976.

      Arthur L. Brooks, Brooks, Sullivan & Molloy, Lexington, for appellants and cross-appellees.
    Thomas R. Burns, Morehead, for appel-lees and cross-appellants.
   JONES, Justice.

This action was instituted in the Rowan Circuit Court by the four appellants and three others, as plaintiffs, challenging the actions of the superintendent and the board of education relative to their employment as teachers or administrators in the Rowan County School System. They sought both injunctive relief and damages for alleged wrongful acts in unlawfully and arbitrarily transferring some of them, and demoting others.

Upon a trial of the case by the court without a jury, the claims for equitable relief and the claims for damages of appellants, Calhoun, Botts, Moore and Alfrey, were dismissed. The trial court found that the transfers of Brenda Wells and Warren Cooper were without any valid motive and directed their return to the positions they previously held. Roger Eldridge abandoned his claim prior to trial.

Calhoun, Moore, Alfrey and Botts appeal from the judgment dismissing their complaint. Cassady and the board of education filed a cross-appeal from that portion of the judgment reinstating Brenda Wells and Warren Cooper to their former positions.

Calhoun, Moore, Alfrey and Botts allege numerous errors on the part of the trial court. Cassady and the Board of Education of Rowan County contend that the trial court erred in restoring Wells and Cooper to their respective positions. It appears to this court that the sole question presented by this appeal is whether or not the superintendent and four of the individual members of the board of education acted within the authority granted by law to validly effect the reassignments and demotions.

In order that this court resolve the issue, it needs to consider the extensive findings of the trial court and properly apply the findings to the law.

The trial court found that all seven of the plaintiffs admittedly engaged in political activities on behalf of a candidate for school board member in the November 1970 general election. Dr. Warren Proudfoot, the candidate they supported, was opposed by Superintendent Cassady. The recommendation by Superintendent Cassady to the members of the board that the transfers and demotions of appellants and cross-appellees was for the school years 1970-1971. Each recommendation made by Superintendent Cassady was approved by the board by a vote of 4 to 1. Only Dr. Proudfoot, who was supported by the appellants and cross-appellees, voted contrary to Cassady’s recommendation. When Dr. Proudfoot questioned the superintendent’s action, the answer was always, “for the betterment of the schools.”

The position , of a teacher in the public schools of Rowan County, as well as the Commonwealth, commands some respect and dignity. Above all, they are entitled to fair and open dealings in transfers and demotions. These appellants and cross-appel-lees were never informed as to the reasons for the superintendent’s action. However, they knew that the action of the superintendent in transferring and demoting them was reprisal for their support of Dr. Proud-foot.

Superintendent Cassady held the hand that played the game — the teachers were poor pawns to be transferred or demoted at his pleasure. All he had to do was to recommend the transfers and demotions to the individual members of the board of education. Like puppets, four of the members voted to assist Cassady in his vendetta against the teachers and employees.

The Legislature, in order to prevent this type of political reprisal, enacted the following statute:

“No teacher or employee of any district board of education shall be appointed or promoted to or dismissed from any position or in any way favored or discriminated against with respect to employment because of his political or religious opinions or affiliations or ethnic origin.” KRS 161.162 (Emphasis ours).

The trial court, in his memorandum opinion and judgment, found that this statute was broad enough in scope to prohibit reassignments by reason of the support or nonsupport of any candidate for the board of education. He concluded also that the statute was specifically designed to prohibit punitive or discriminatory action against any teacher or administrative personnel as a result of activity in a school board race.

In his opinion the trial court stated: “The fact that the superintendent could only tell the general reason that it was ‘for the betterment of the school system,’ in the light of the circumstances in this ease, leads the court to believe, and so finds, that the paramount reasons for these transfers were punitive in nature as a result of the plaintiffs’ (appellants and cross-appellees) participation in the school board race.” (Emphasis ours).

*If the primary reason for making the transfers as found by the trial court was to punish the teachers and administrators for their political activities, then such action was arbitrary and void. Simply because the superintendent could have been otherwise motivated by some proper purpose does not mean that these other purposes played a real part in his decision to make the transfers. The trial court could not breathe new life into an otherwise void and arbitrary action.

The trial court found also that the demotion of Calhoun was in violation of KRS 161.162. He concluded, however, that Calhoun’s resignation from the school system precluded him from maintaining an action against the board and its members. In view of his finding that the primary reason or motive was to discriminate against Calhoun for his political activity, that did not deprive him of standing to maintain his action although he had resigned rather than accept the demotion from an administrative position to classroom teacher.

The claim of Botts should not have been dismissed because the position of Head-Start Director was not a tenured position. There is no application of the tenure law that is protected by KRS 161.162.

The judgment on the appeal is reversed for further proceedings consistent with this opinion. The judgment on the cross-appeal is affirmed.

All concur.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. James Ray HULSEY, Appellant.
    No. 10120.
    Missouri Court of Appeals, Springfield District.
    March 3, 1976.
    Motion for Rehearing or to Transfer to Supreme Court Denied March 22, 1976.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Stephen R. Soutee, Marionville, for appellant.
   PER CURIAM.

Appellant James Ray Hulsey, was convicted of armed robbery by a Jasper County jury on May 9, 1975, punishment being assessed at 25 years imprisonment.

Appellant’s timely motion for a new trial was overruled on August 18, 1975, at which time allocution, sentence and judgment followed.

Eleven days later, August 29,1975, appellant filed his Notice of Appeal and Jurisdictional Statement.

Rule 28.03, V.A.M.R. provides appeals in criminal cases “shall be taken by filing a notice of appeal in the same manner and within the same time after final judgment as provided for civil cases.”

Rule 81.04, V.A.M.R., states: “No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment . . . appealed

from becomes final. . . .”

Appellant’s Notice of Appeal not having been timely filed, we have no jurisdiction to entertain this appeal. State v. Worl, 531 S.W.2d 294 (Mo.App.1975).

Appeal dismissed.

ALL CONCUR.


author: ALDEN A. STOCKARD, Special Judge.

text:
    Lexton OGLE et al., Plaintiffs-Appellants, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, Defendant-Respondent.
    No. 36349.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 9, 1976.

      Lawrence 0. Willbrand, St. Louis, for plaintiff s-appellants.
    Robertson, Ely & Wieland, Robert C. Ely, St. Louis, for defendant-respondent.
   ALDEN A. STOCKARD, Special Judge.

This is an action in twenty-four separate counts by landowners for damages from flooding claimed to have been caused by defendant’s failure to comply with the minimum requirements of § 389.660, RSMo 1969, pertaining to the construction of suitable openings in the roadbed of a railroad to drain and carry off water. The jury verdict, totaling $12,000.00, was set aside by the trial court and judgment was entered for defendant in accordance with its motion for a directed verdict. In the alternative, the trial court ordered a new trial for the giving of Instruction No. 6 on the issue of damages. Plaintiffs have appealed. We reverse the judgment for defendant but affirm the order granting a new trial.

Among other things § 389.660 requires that every railroad company shall “cause to be constructed and maintained suitable openings across and through the right of way and roadbed of such railroad, * * * to connect with ditches, drain and watercourses, so as to afford sufficient outlet to drain and carry off the water, including surface water, along such railroad whenever the draining of such water has been obstructed or rendered necessary by the construction of such railroad; * * Each flooding of lands resulting from noncompliance with the above statute gives rise to a separate cause of action. Hewitt v. Chicago, Burlington & Quincy Railroad Company, 426 S.W.2d 27, 29 (Mo.1968).

Plaintiffs contend that the trial court erred in setting aside the jury verdict and entering judgment for defendant railroad. In determining this issue we consider the evidence favorable to plaintiffs as true and give them the benefit of every inference of fact which can reasonably be drawn therefrom. Adler v. Laclede Gas Company, 414 S.W.2d 304, 306 (Mo.1967).

During the trial of this case plaintiffs’ expert witness, a civil engineer for the Metropolitan Sewer District, referred to an exhibit while testifying. The exhibit has not been filed with this court. Statements by this witness that “this part here is looking at the view of the creek from the side,” the “creek flows this way,” and the “railroad is right here,” are meaningless to one reading the record on appeal. We shall, however, from the understandable evidence make a summary statement of the factual situation, and detail the pertinent evidence.

Defendant’s railroad right of way crosses the East Fork of Black Creek near Hanley Road and Laclede Station Road. The culvert in defendant’s embankment to permit water in the East Fork of Black Creek to pass through is ten feet wide across the bottom, it has vertical concrete walls six feet high, and there is an arch or “round half circle” at the top. Plaintiffs’ home is nearby on West Point Drive a short distance upgrade from the culvert.

Lexton Ogle testified that the “creek,” referring to the East Fork of Black Creek, was across the street from his house, and when “you get a hard rain you see the creek come up and you watch it and it just comes up and gets to the culvert and starts backing up this way right towards our house.” He also testified that on several occasions the water overflowed from the creek into the basement of his house causing damage. Other evidence was to the effect that on twenty-four occasions their basement was flooded by water which during heavy rains backed up from the culvert. Plaintiffs’ expert witness testified that in his opinion the reason the water backed up into plaintiffs’ home was that “the culvert [was] too small,” and that it was “only one-third the size it should be” in order to permit the flow of the water through the embankment.

Defendant’s evidence was to the effect that if it enlarged the culvert that “would not alleviate the situation” because “the whole channel is inadequate from the Terminal Railroad on downstream.”

Rather than attempt to paraphrase the ruling in Smithpeter v. Wabash R. Co., 360 Mo. 835, 231 S.W.2d 135, 141-142 (1950), a leading case on the issues here presented, we will quote rather extensively from the opinion as follows:

We next consider defendant’s basic contention as to its construction of Sec. 5222, * * *. Defendant argues that as plaintiffs failed to prove that “there was ditches, drains or watercourses south of the railroad embankment sufficient to carry off the water, including surface water, coming through defendant’s embankment,” that plaintiffs made no case for the jury. Defendant’s brief states its position in these words: “ * * * the duty of the railroad under Sec. 5222 is limited to passing only that water through the embankment which can be carried off by a ditch, drain or watercourse below.”
We do not agree that a railroad’s duty is so limited under that statute. Analysis of the statute discloses nothing therein which limits the railroad’s duty to passing through its embankment only such water as can be carried off below. In Sec. 5222, we find neither words nor context which warrants any such construction. The statutory duty is that the railroad must construct and maintain “suitable openings” through its embankment, to connect with watercourses, “so as to afford sufficient outlet” (through its embankment) i.e., to permit all water (including flood water) to get through its embankment to the lower side, “whenever the draining of such water has been obstructed or rendered necessary by the construction of such railroad.” Jones v. Chicago, B. & Q. R. Co., supra. There is not one word in the statute limiting the water the railroad must let through its embankment to such water as can be carried off within the banks of the drain, ditch or watercourse below the railroad. Nor is there anything in the statute intimating the railroad’s duty is discharged if the water above the embankment and required to be let through cannot be carried off within the banks of the existing “ditch, drain or watercourse.” The statute does not require the watercourse below the bridge be “sufficient” to carry away water drained through the embankment.

A jury reasonably could find that the culvert did not provide a sufficient outlet through the railroad embankment to permit all the water during heavy rains to get through the embankment to the lower side. There was a watercourse extending downstream from the embankment, and in view of the holding in the Smithpeter case the inadequacy of that watercourse does not excuse noncompliance with the statute. The trial court improperly entered judgment for defendant.

At the request of plaintiffs, Instruction No. 6 in the form of MAI 4.01 was given. Plaintiffs concede on this appeal that the proper instruction was MAI 4.02, but they attempt to demonstrate that no prejudicial error resulted.

Rule 70.01(c) provides that “The giving of an instruction in violation of the provisions of this rule shall constitute error, its prejudicial effect to be judicially determined.” In Murphy v. Land, 420 S.W.2d 505, 507 (Mo.1967), the Supreme Court expressed itself as follows: “All deviations from the straight and narrow path prescribed in MAI will be presumed prejudicially erroneous unless it is made perfectly clear that no prejudice resulted. The requirements of MAI are mandatory. The burden of establishing nonprejudice is on the proponent of the instruction. That it is the policy of this Court to require strict compliance with all the requirements of MAI is made clear in Brown v. St. Louis Public Service Co., Mo., 421 S.W.2d 255 (Mo. banc 1967).”

Plaintiffs argue that “the result would have been identical” if MAI 4.02 had been given. However, that is pure speculation. Instruction No. 6, in the form of MAI 4.01, conferred carte blanche authority for the jury to have included many items of damage referred to in the evidence such as loss of work by Mr. Ogle and the cost of removing odors, replacing motors in the furnace, and replacing tile on the floors, to mention only a few. Evidence pertaining to such items, except the loss of work item, was relevant to the issue of the alleged diminished market value of plaintiffs’ property, but damages as such for those items were not recoverable in this action.

In this case there was a deviation from an MAI instruction, which did not need modification, in that an inapplicable instruction was given and plaintiffs have not made it “perfectly clear” that no prejudice could have resulted. Also, this court will be more liberal in upholding the trial court’s action in sustaining a motion for new trial than in denying it. Stewart v. City of Marshfield, 431 S.W.2d 819 (Mo. App.1968).

Appellants suggest that in the event of a new trial it should be on the issue of damages only. Apparently the trial court did not consider this appropriate because it did not so limit its order, and generally speaking in a situation such as we have here it is a matter of discretion on the part of the trial court. Panjwani v. Star Service & Petroleum Company, 395 S.W.2d 129 (Mo.1965). In addition, proof of damages and of liability are closely related and difficult to separate completely, and our examination of the record shows that there is much to be desired concerning the proof of causation as to some counts. Our reversal of the judgment for defendant as to all counts is not an approval of the proof as to each count. Under these circumstances we direct a new trial on all issues.

The judgment for the defendant entered by the trial court is reversed, and the order, entered in the alternative, granting a new trial is affirmed and the cause remanded.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.


text:
    Maxine DAIN, Petitioner-Appellant, v. James SPRADLING, Respondent.
    No. 36991.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 9, 1976.
    Allen I. Harris, Clayton, for petitioner-appellant.
    Thomas W. Shannon, Pros. Atty., Bernard Brown, Asst. Pros. Atty., St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Appellant was arrested for operating a motor vehicle while intoxicated, and her operator’s license was revoked for a period of one year by respondent for alleged refusal to submit to a breathalyzer test pursuant to the provisions of § 564.444(1) RSMo 1969. Appellant filed a petition for review of this administrative ruling, as authorized by § 564.444(2), and after hearing in the circuit court the order of revocation was affirmed. This appeal followed. We reverse.

There is no substantial dispute as to the facts. In the early morning of December 20, 1974, appellant was arrested by Police Officer Zysk on a charge of driving while intoxicated. She was first taken to City Hospital and then to the prisoner processing division. Officer Zysk advised her that she could take an intoximeter test and explained to her that a refusal to take the test could result in the revocation of her operator’s license for a year. Four or five times she requested permission to use the telephone to call a friend or a lawyer. Officer Zysk admitted that she explained to him that she wanted to contact someone “in regard to having them get an attorney to get some advice.” Her request was refused because “procedure from the police department is that the arrested subject is allowed to make one phone call before she is booked, immediately before she is booked,” but Officer Zysk admitted that in this case appellant was not permitted to make any telephone call until after she was booked, and that she was not thereafter given an opportunity to take the intoximeter test. As admitted by the police officer, “she was being asked to take the test without referring to her attorney before hand,” and at the time the request to take the test was made “she was acting entirely upon her. own rather than any legal advice although she asked for legal advice.”

In Spradling v. Deimeke, 528 S.W.2d 759, 763-764, (Mo.1975), the Supreme Court held that although “an arrested person does not have a constitutional right to consult with an attorney prior to deciding whether or not to submit to a breathalyzer test,” he does, “under the statutes of this state and the rules of this court * * * have the right to consult with counsel or others in his behalf, and the arresting authorities do not have the right to prevent him from doing so.” It was also held that “This right does not depend upon the type of offense for which the party is arrested and applies to arrests for driving while intoxicated,” and that the right is not suspended “pending the giving of a breathalyzer test.” A detailed explanation of these “statutes * * and rules,” and their application to the factual situation we have here may be found in Gooch v. Spradling, 523 S.W.2d 861 (Mo. App.1975).

Before appellant was asked to take a breathalyzer test, or was given the opportunity to do so, she had requested to be permitted to contact a lawyer or friend to seek advice. That request was refused. After she was permitted to use a telephone to contact a lawyer or friend for advice she was not afforded an opportunity to refuse the test or to take it. The only refusal to take a breathalyzer test was made at the time the police were denying her the right to consult a friend or lawyer for advice. She was not entitled to have counsel present when the test was administered, Spradling v. Deimeke, supra, but she was entitled to obtain the advice of counsel or friend as to whether she should take the test or refuse to do so. Under the facts of this case appellant did not make an unequivocal and informed refusal to take the breathalyzer test.

The judgment is reversed with directions to enter a new judgment setting aside the administrative order of revocation.

SMITH, C. J„ and NORWIN D. HOUSER, Special Judge, concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert C. EILAND, Defendant-Appellant.
    No. 36840.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 9, 1976.

      Neal P. Murphy, Asst. Public Defender, James C. Jones, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Robert L. Presson, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   NORWIN D. HOUSER, Special Judge.

Robert Eiland, charged with first degree murder of Jackie Jones and convicted of murder in the second degree, has appealed, challenging the sufficiency of the evidence to support the verdict.

At approximately 7 p. m. July 25, 1973, Jackie Jones, the 17-year-old victim, accompanied by her brother Otis Jones, age 16, and her boyfriend Richard Works, 24, arrived at 2020 East Grand in the City of St. Louis, where they went to Lorenzo Williams’ upstairs apartment. Several others were playing cards. Jackie and Richard watched television. During the evening Otis went downstairs. There he observed appellant conversing with one Eddie Fleming and saw appellant hand Eddie a $10 bill. At about 11 p. m. appellant came upstairs to the doorway of Lorenzo’s apartment and asked Richard if “anything was happening.” Richard answered in the negative. Appellant went downstairs. Shortly thereafter Eddie Fleming got change for the $10 bill from Richard and proceeded to play cards with the others. Appellant returned to the apartment door, asked Richard if he knew a “Tony” (evidently referring to Eddie Fleming). Richard answered in the negative. Appellant went downstairs to the street. Joseph Williams, who came to Lorenzo’s apartment shortly after appellant’s second departure from the apartment door, testified that appellant had said that “if he don’t get his money there’s going to be some stuff.” Richard, Otis and Jackie, with two others, went downstairs to the steps in front of the building. Appellant, who was there, approached Richard and asked if “Tony” had come up there with $10. Richard repeated that he did not know a “Tony.” Appellant then got into the back seat of a white Oldsmobile automobile. The driver was a man. There was a woman passenger in the right front seat. The Oldsmobile pulled north on Grand, circled the water tower and came back south towards the place where Jackie and the others were standing in front of 2020 East Grand. When the automobile approached the place where the group was standing it slowed to 3-5 miles an hour and two shotgun shots were fired from the back seat of the Oldsmobile. The second shot struck Jackie Jones on the back of the head as she entered the building through the door. She died from the gunshot wound. Otis Jones testified that appellant fired the shot that killed Jackie Jones.

Otis Jones’ testimony is challenged by appellant as conflicting and without probative value. Appellant notes these inconsistencies: that at trial Otis testified the shots were fired by appellant from the back seat of an Oldsmobile which had stopped about even with the steps where he, Jackie and another were standing, whereas he told police and grand jury the shots were fired from a Monte Carlo automobile which was moving at the time; that at trial Otis maintained he could identify appellant, seated in the back seat, and could identify the woman passenger on the other side of the driver, but could not see the driver “too good,” although the driver was closer to Otis than the woman; that at trial Otis testified he was standing on the curb when the shots were fired but told the grand jury the second shot was fired when he started to run. Inconsistencies such as these affect the weight, not the admissibility or sufficiency, of the evidence. It is for the jury to determine whether the witness’ testimony at trial is credible in the light of the inconsistencies. State v. Spinks, 344 Mo. 105,125 S.W.2d 60 (1939); State v. Austin, 496 S.W.2d 799 (Mo. banc 1973), cert. den. 414 U.S. 1044, 94 S.Ct. 549, 38 L.Ed.2d 336; State v. Collins, 520 S.W.2d 155 (Mo.App. 1975). Notwithstanding the inconsistencies there was eyewitness testimony that appellant fired the fatal shot and there was sufficient evidence to support the verdict of guilty.

Appellant contends that the court committed reversible error in permitting Richard Works to testify that Joseph Williams came up to the apartment between appellant’s two appearances there and said “that dude said if he don’t get his money there’s going to be some stuff.” Appellant brands this as clearly hearsay, says it was properly objected to, and claims it was not admissible under any exception to the hearsay rule. As pointed out by the Attorney General the error, if any, in admitting this hearsay evidence was not prejudicial under the rule laid down in Baker v. Woodbury, 492 S.W.2d 157[3] (Mo.App.1973), for the reason that the same facts had already been elicited in the course of cross-examination in the defense’s attempt to impeach the State’s star witness, Otis Jones, without any objection by appellant. The transcript, page 56, supports the State’s contention. “ ‘One will not be heard to complain of the

admission of testimony over his objection, where evidence of the same tenor has been admitted without his objection.’ ” Baker v. Woodbury, supra, 492 S.W.2d 1. c. 159. Appellant seeks to invoke the plain error Rule 27.20(c), but “[i]n view of the fact that defense counsel had previously elicited such testimony * * * on cross-examination, we reject the suggestion that the matter should be considered under the plain error rule.” State v. Franklin, 448 S.W.2d 583, 584[3] (Mo.1970).

Appellant further contends that it was error to admit the following hearsay testimony, given by witness Richard Works: “Q What did he [Eddie Fleming] tell you about the ten dollars? “A He said didn’t nobody give him no ten dollars and then he said, ‘so what, you would have ripped him off too.’ I said you’re going to have to leave because you can’t come up here and take nobody’s money and then I put him out the back door.” Appellant did not object to this particular question or move for curative action after the answer given, and therefore no issue was preserved for appellate review.

Appellant has preserved for appellate rer view the question whether the court erred in failing to instruct the jury on manslaughter.

In instructing juries in homicide cases tried after March 1, 1975, additional instructions both on second degree murder and manslaughter must be given in all cases where the pleadings and evidence warrant the submission of first degree murder. See Notes on Use 6 under MAI-CR § 6.02. The notes on use, however, are prospective in application; do not apply to cases tried before that date. State v. Williams, 529 S.W.2d 883, 888 (Mo. banc 1975). And see State v. Mudgett, 531 S.W.2d 275 (Mo. banc 1975). This homicide and the trial of this case occurred prior to March 1, 1975. The giving of a manslaughter instruction was not then automatic. Such an instruction was required only if there was evidence to support it. State v. Henderson, 510 S.W.2d 813,823[17] (Mo.App.1974). Whether appellant was entitled to an instruction on manslaughter depended upon “whether from the evidence introduced the jury could have found that he unjustifiably and inexcusably killed deceased without premeditation or malice,” State v. Anderson, 515 S.W.2d 534, 537 (Mo. banc 1974); whether there was an “* * * ‘unjustifiable, inexcusable and intentional killing of a human being without deliberation, premeditation and malice.’ State v. Stringer, 357 Mo. 978, 980, 211 S.W.2d 925, 927; Y.A.M.S. § 559.070.” State v. Ayers, 470 S.W.2d 534, 536 (Mo. banc 1971).

Preliminarily we observe that this is a case of transferred intent, submitted on the theory that appellant caused the death of Jackie Jones in an attempt to take the life of Eddie Fleming. If appellant was not justified in shooting at Fleming, and if in shooting at a person whom he thought was Fleming he shot and killed Jackie Jones by misadventure or mistake, then appellant’s guilt in killing her must be measured and the degree of homicide determined by what his crime would have been had he shot and killed Fleming. State v. Stallings, 326 Mo. 1037, 33 S.W.2d 914, 916[4] (1980). Paraphrasing State v. Pollard, 139 Mo. 220, 40 B.W. 949, 952 (1897), it mattered not that defendant missed his mark and killed Jackie, instead of Eddie, because in such cases the intention follows the bullet.

“[T]here must be some evidence upon which to rest a verdict of manslaughter, State v. Ayers, 470 S.W.2d 534, 538 (Mo. banc 1971). Where there is no evidence of

provocation, assault or encounter which excites passion beyond control or of culpable negligence, there is no duty to instruct on manslaughter. State v. Ginnings, 466 S.W.2d 675, 677 (Mo.1971); State v. Lamborn, 452 S.W.2d 216 (Mo.1970); State v. Hunter, 444 S.W.2d 392 (Mo.1969); State v. Taylor, 309 S.W.2d 621, 624 (Mo.1958). * * * Here there is no evidence of provocation; therefore, no basis for a verdict of guilt of murder, second degree, or of manslaughter and, therefore, no error in failure to instruct on those offenses. State v. Glenn, 429 S.W.2d 225 (Mo. banc 1968).” State v. Sturdivan, 497 S.W.2d 139, 142 (Mo.1973). “If, as a matter of law, the court can declare that there is an entire absence of evidence upon which to support a verdict of guilty of a particular offense (whether it be murder in the first degree, murder in the second degree, or manslaughter), the court should not instruct thereon.” State v. Anderson, supra, 515 S.W.2d l. c. 537; State v. Ayers, supra, 470 S.W.2d l. c. 538.

The evidence in this case conclusively demonstrates a case of first or second degree murder, if the State’s evidence is to be accepted, or that appellant was not guilty of any offense because he was not present, if appellant’s alibi evidence is to be believed. The case is reminiscent of the situation in State v. Collins, 520 S.W.2d 155 (Mo.App.1975), where the victims were ambushed by appellant and other persons concealed in the rear of a camper truck. There the intentional killing of helpless persons was held to show only the offense of first degree murder. This court rejected the contention that the trial court erred in failing to instruct on the lesser offenses of second degree murder and manslaughter, and held that where the evidence shows only the offense of first degree murder an instruction on second degree murder or manslaughter is not required. In the case before us there is some evidence of a misunderstanding between appellant and Eddie Fleming with respect to a $10 bill, and this perhaps impelled the trial court to instruct

on second degree murder (to give the jury a choice to draw the inference of deliberation vel non). See State v. Johnson, 505 S.W.2d 94 (Mo.1974).

In this direct (not circumstantial) evidence case — killing a person by firing a deadly weapon in ambush from the back seat of a moving automobile, not as the result of a sudden provocation, calculated to excite the passion of the accused beyond control — the elements of second degree murder (premeditation and malice) are present as a matter of law, but it is equally clear as a matter of law that there is a complete absence of evidence upon which to rest a verdict of guilty of manslaughter. As in State v. Clough, 327 Mo. 700, 38 S.W.2d 36, 38 (1931), “there is no room for manslaughter” in this case. See also State of Missouri v. Mudgett, supra. This was a senseless, ambush-type murder, gangland style, without any confrontation, assault or physical encounter between killer and actual or intended victim; no provocation; no suddenly aroused passion; no element of justification or excuse. There was no occasion to instruct on the lesser offense of manslaughter because the evidence excluded a finding of manslaughter as a matter of law; the trial court could properly have instructed only on the crime of murder. State v. Ayers, supra, 470 S.W.2d l. c. 538.

The judgment of conviction of second degree murder is affirmed.

SMITH, C. J., and ALDEN A. STOCKARD, Special Judge, concur.

      . “There is but one definition of manslaughter in this state, and that is contained in § 559.070,” V.A.M.S., State v. Williams, 442 S.W.2d 61, 63-64 (Mo. banc 1969), as follows: “Every killing of a human being by the act, procurement or culpable negligence of another, not herein declared to be murder or excusable or justifiable homicide, shall be deemed manslaughter.”


author: RENDLEN, Judge.

text:
    STATE of Missouri ex rel. CITY OF PACIFIC, Missouri, Relator, v. Winston V. BUFORD, Judge of the Thirty-Seventh (37th) Judicial Circuit, sitting as a Special Judge in the Circuit Court of Franklin County, Missouri, in Cause No. 9948, Respondent.
    No. 36549.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 9, 1976.

      James L. Anding, Pacific, for relator.
    Charles M. Shaw, Clayton, for respondent.
   RENDLEN, Judge.

Relator seeks prohibition to prevent respondent from proceeding on a motion to cite for contempt in a cause entitled “In the Matter of: P. H. Albertson, Cause No. 9948, in the Circuit Court of Franklin County.” In that action the respondent, on February 16, 1974, reversed and held for naught the impeachment proceedings of relator, removing Albertson as City Marshal. Seeking enforcement of the judgment reversing the City’s impeachment action, Albertson moved the respondent to cité relator for contempt “in and for its refusal to set aside and hold for naught its Acts of September 4, 1973 and December 6, 1973[,] suspending and removing Petitioner as Marshal of said City and thus not paying Petitioner’s salary and emoluments and to punish Respondent City of Pacific for said contumacious refusal . . . ” For reasons we shall discuss, our preliminary writ of prohibition is made absolute.

The aldermen of relator, City of Pacific, sitting as a board of impeachment, heard charges and on December 6, 1973, ordered impeachment and removal of P. H. Albert-son as Marshal of the City. Albertson petitioned the Circuit Court of Franklin County for judicial review of these actions. On February 16, 1974, the Circuit Court found the issues for petitioner and further found the City (relator here) had acted arbitrarily and capriciously, that its actions were unlawful and they were “held for naught.” Pertinent portions of the order are as follows: “WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that said acts by the City of Pacific on September 4, 1973, and December 6, 1973, are hereby set aside and held for naught; . . . ” Further the actions of the City were “not supported by competent and substantial evidence” and costs of the proceedings were taxed against the City.

Numerous procedural moves were undertaken by both sides including an appeal by the City which was abandoned on July 1, 1974, for the alleged reason that “P. H. Albertson was defeated in his bid for reelection to the position of City Marshal in the municipal elections of April 2,1974” and the matter of their appeal was thus “moot.”

Thereafter Albertson filed his motion to cite the City for contempt, alleging among other things the City of Pacific had contemptuously failed to pay the salary and emoluments due during the period of Albertson’s suspension and for other relief. The City responded, filing suggestions in opposition to the contempt motion, and the court took cognizance of the proceeding. Relator then filed its petition for prohibition accompanied by suggestions in support; and on October 17,1974, this court made its preliminary order prohibiting respondent from proceeding further in the cause.

We are aware that a writ of prohibition is an extraordinary remedy to be used with great care, State ex rel. Eichorn v. Luten, 515 S.W.2d 857, 859[1] (Mo.App.1974); and generally the purpose of the writ is to prevent a lower court from acting without or in excess of its jurisdiction. State ex rel. Vogel v. Campbell, 505 S.W.2d 54, 58[7] (Mo. banc 1974).

Here, we must determine whether respondent has jurisdiction to adjudicate or grant the relief requested in the contempt proceeding. Before any adjudication could be made in such proceeding, “there must be jurisdiction of the person and of the subject matter, and in addition the court must have jurisdiction to render the particular judgment in 'the particular case before it.” (Emphasis ours.) State ex rel. Eichorn v. Laten, supra at 859[3]. Petitioner requests the court to hold relator in contempt for its alleged contumacious refusal to “set aside . its acts” thereby refusing to carry out the order of the court. In effect petitioner seeks contempt for the City’s failure to take affirmative action; e. g., enactment of a repealing ordinance, when in fact no such affirmative action was required of the City by the judgment. No orders were directed to the City to enact any repealing ordinances; no finding or judgment was made directing the City to take specific action to reinstate Albertson. There was no judgment and no finding touching Al-bertson’s entitlement to pay or emoluments for past or future services. No judgment for money was entered and nothing appears touching the value of services or similar aspects of the dispute.

By his contempt motion, Albertson would have the Circuit Court cite the City for contempt for “its refusal to set aside and hold for naught its [impeachment] acts . ” As we have previously noted, the judgment of the trial court does not call for such affirmative acts by the City; instead the court by its own action set aside and held for naught the impeachment proceeding. If in the contempt proceeding the court were to require such affirmative action, it would violate the established principle that “to support a charge of contempt for disobedience thereof, an order will not be expanded by implication in the contempt proceeding but must be so specific and definite as to leave no reasonable basis for doubt as to its meaning.” G_ v. Souder, 305 S.W.2d 883, 885[2] (Mo.App.1957). The court may not by implication include requirements not specified in the original judgment; and though suggested otherwise by petitioner, the record discloses no basis for the claim that the City was required to take the affirmative acts as Albertson would insist. If an act is not required, there can be no contempt for failure to perform it.

The remaining ingredient of the judgment which petitioner seeks to enforce by his motion to cite for contempt is pure and simple a claim for money, thus the motion calls for judicial actions in excess of jurisdiction. This is true for at least two reasons. First, the judgment makes no award of money and cannot now be expanded by implication in the contempt proceeding. G— v. Souder, supra at 885[2], Second, assuming arguendo, the judgment of February 16, 1974, included an order for payment of money, the trial court would have no authority or jurisdiction to hold relator in contempt for failure to pay.

Section 511.340, RSMo 1969, provides for contempt as a mode of enforcing judgments with the specific exception in those cases of judgments for “the payment of money.” Statutory enactments as to what shall constitute contempt are to be strictly construed and the court in White v. Hutton, 240 S.W.2d 193, 200[7] (Mo.App. 1951), construed § 511.340, RSMo 1949, (now § 51Í.340, RSMo 1969) as specifically exempting the nonpayment of a money judgment from contempt proceedings. The court stated: “The punishment as for contempt of a judgment debtor for his refusal to obey a judgment has no application to judgments for the mere payment of money . . . Sec. 511.340, RSMo 1949.” To like effect is the statement in White v. Fitzgerald, 263 S.W.2d 454, 456 (Mo.App. 1953), in which the court discussing enforcement of a judgment for delivery of specific property or the value thereof, stated: “If such a judgment . . . has any force or effect at all . it would be, at most, a mere judgment for debt, for the default of which no contempt and imprisonment could apply.” (Emphasis ours.) Further, as stated by the court in White v. Hutton, supra at 200, “Imprisonment for debt would violate the federal and state constitutions, under the familiar provisions thereof not necessary here to cite.”

Since the court has no authority to render the type of judgment requested, it would exceed its authority to proceed. This principle found expression in White v. Hutton, supra at 200, wherein the court stated: “Nor can the court make contempt of that which is not contempt. And every attempt to do so would be in excess of authority or jurisdiction, as much so as if the court had no authority or power to punish for contempt, either in relation to the person or subject-matter. There must be contempt in order to justify punishment for that offense.” (Emphasis added.) The court further stated: “There are three essential elements necessary to render conviction valid. These are that the court may have jurisdiction over the subject-matter, the person of the defendant and the authority to render the particular judgment. If either of these essential elements are lacking, the judgment is fatally defective, and the prisoner held under such judgment may be released on habeas corpus.” (Emphasis added.) White v. Hutton, supra at 200.

For the reasons stated, our preliminary writ of prohibition proscribing respondent from proceeding further in connection with Cause No. 9948 is made absolute.

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


text:
    Robert Joseph FLYNN, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 27843.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.
    Motion for Rehearing and/or Transfer Denied March 29, 1976.

      Thomas M. Larson, Public Defender, Gerald M. Handley, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOP-FORD and SOMERVILLE, JJ.
   PER CURIAM.

In December of 1971, the appellant was tried and found guilty of rape and sentenced to a term of twenty years. Upon direct appeal, his conviction was affirmed. State v. Flynn, 505 S.W.2d 48 (Mo.1974).

Appellant thereafter filed a motion under Rule 27.26 to set aside the conviction; an evidentiary hearing was held; the trial court overruled the motion; and this appeal followed.

The sole point raised by the appellant is that he was denied due process of law when the trial court found that counsel’s failure to personally investigate appellant’s alibi and call witnesses and present evidence in support thereof, did not deny appellant effective assistance of counsel and a fair trial.

The trial court made extensive findings of fact which, pertinent to the point here urged, found that appellant’s trial counsel and his predecessor counsel had attempted to develop an alibi defense, but trial counsel, with the apparent agreement of appellant, made the decision not to assert such defense. The record testimony below has been carefully reviewed and it appears that the so-called alibi defense was obscure and nebulous at best, and it is evident that trial counsel was exercising his professional judgment as to trial strategy, in the decision not to attempt to establish that defense.

Further, in the evidentiary hearing on the motion, the appellant failed to sustain his burden of showing that on a retrial there would be substantial evidence on the alibi defense and which was not available at the trial of the original case because of any failure by counsel to investigate and interview witnesses. Jones v. State, 491 S.W.2d 233, 235[2] (Mo.1973); McQueen v. State, 475 S.W.2d 111 (Mo. banc 1971); Mace v. State, 452 S.W.2d 130, 132[1] (Mo.1970).

Further detail of the evidence would serve no useful purpose. The findings of fact, conclusions of law, and judgment of the trial court, are not clearly erroneous. Rule 27.26(j).

An extended opinion herein would have no precedential value. Rule 84.16(b).

The judgment is affirmed.


author: McMILLIAN, Judge.

text:
    Cleta NULL and Charles Null, Plaintiffs-Respondents, v. Michael GRAY and Frederick G. St. Clair, Defendants-Appellants.
    No. 36699.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 9, 1976.

      Goldenhersh & Newman, Leo M. Newman, St. Louis, for defendants-appellants.
    Lawrence O. Willbrand, St. Louis, for plaintiffs-respondents.
   McMILLIAN, Judge.

This is an appeal from the jury verdict of $6500.00 in favor of plaintiff-respondent Charles Null on Count II of a negligence action. For the reasons stated below, we reverse and remand for a new trial.

On August 31, 1971, respondent’s wife was in one of a line of cars stopped at a stop sign, when a chain collision occurred.

The car behind her was struck from the rear by defendant Gray’s car, causing St. Clair’s car to strike her car from the rear. Although she did not complain of any injury at that time, the next day she consulted her family doctor, Dr. Miles Whitener, for headaches and a swollen neck. Over the next year Dr. Whitener referred her to several specialists, one of whom was Dr. J. P. Schaerer, a neurosurgeon. In July, 1972, Dr. Schaerer performed cervical disc surgery, and, in September, 1972, he performed low back surgery. Before she saw Dr. Schaerer, her medical expenses had been approximately $600.00. After she saw Dr. Schaerer, her medical expenses went up to approximately $6900.00. Respondent paid all of her medical bills.

Respondent and his wife sued appellant for negligence in two counts: Count I for his wife’s injuries and suffering, and Count II for respondent’s medical expenses, lost wages, and loss of consortium. Respondent took a deposition from Dr. Schaerer, which indicated that he did much surgery and would .not be able to testify during the week the case was scheduled for trial. The case, however, was not reached for trial until over a year later. At trial, when respondent offered Dr. Schaerer’s deposition into evidence, appellant objected on the ground that no foundation had been laid for its reading since there was no showing that Dr. Schaerer was “ . . engaged in the discharge of his official or professional duty at the time of the trial,” as required by § 57.29(b)(5), V.A.M.R. The court overruled the objection, stating, “ . . . I take the position that as long as he is a practising physician, that is sufficient to come within paragraph 5 of the rule.” The jury returned a verdict for respondent’s wife in the sum of $1,000.00 on Count I; for respondent in the sum of $6,500.00 on Count II; and in favor of defendant St. Clair on both Count I and II. Respondent wife does not appeal on Count I; nor was there any appeal of the judgments entered in favor of St. Clair on Counts I and II.

On appeal, appellant contends that the court erred in allowing respondent, over objection, to read Dr. Schaerer’s deposition to the jury for the reason that respondent failed to establish a foundation for its admissibility. We agree and reverse for a new trial on that basis. Therefore, appellant’s other contentions — excessiveness of the verdict and use of the abandoned M.A.I. 17.16 Instruction — need not be reached as they may not recur. McCaffrey v. Estate of Brennan, 533 S.W.2d 264, handed down February 3, 1976 (Mo.App.).

This case is governed by Rule 57.-29(b)(5). Since the time of trial that section has become Rule 57.07(a)(3)(C); the wording of the relevant parts is identical. Rule 57.07(a), Use of Depositions, in court proceedings, reads:

“(3) The deposition of any witness who is not present in court may be used by any party for any purpose if the court finds: . (c) that the witness is a judge of a court of record, a practicing attorney or physician and engaged in the discharge of his official or professional duty at the time of trial . . . .” (Emphasis added.)

The rule provides that such finding may be based upon testimony within the deposition itself. And the finding as to inability of a witness to attend court rests largely within the discretion of the trial judge. Boyle v. Crimm, 363 Mo. 731, 253 S.W.2d 149 (1952). However, “ . . . [t]he competency of a deposition is to be determined by the status of the witness at the time the deposition is offered in evidence. . . . ” Maple-wood Planing Mill & Stair Co. v. Pennant Construction Co., 344 S.W.2d 629, 633 (Mo. App.1961). See also Key v. Kilburn, 228 S.W.2d 731 (Mo.1950) and McFadden v. McFadden, 509 S.W.2d 795 (Mo.App.1974).

There is no doubt that the deposition in question would have been admissible during the week that the case was originally set for trial. The deposition itself established the witness’ surgery schedule for that week. But such showing was limited to that one week, and the deposition was thereafter inadmissible without a contemporaneous showing of unavailability. Respondent argues that the mere fact that the witness was a “practicing” physician raises an inference that he was unavailable because of professional duties. Such a reading would require us to treat the italicized portion of the rule as surplusage. That is, a “practicing” physician would be deemed unavailable regardless of the reason for his or her failure to testify. However, a statute should be construed so as to give meaning to every word. 2A Sutherland Statutory Construction § 46.06 (4th Ed., Sands 1973); State v. Carter, 319 S.W.2d 596 (Mo. Banc 1958) and Welborn v. Southern Equipment Co., 386 S.W.2d 432 (Mo.App.1964). The rule is clear on its face. It requires a finding not only that the witness is a practicing physician but also that he or she is unavailable because of professional duties. These provisions are consistent, and both can be given effect. A deposition by a practicing physician is not admissible unless that physician is also unavailable due to professional duties at the time of trial. See McFadden v. McFadden, supra. The burden must be on the party offering the deposition to show its admissibility, not on the other party to overcome an inference of unavailability.

Respondent also argues that it is customary in the legal profession to dispense with the technical aspects of depositions, apparently for reasons of cost and convenience. However, the policy embodied in the rule, that a witness appear in person unless qualified under an exception is a sound one. It enables the judge or jury to assess the witness’ credibility and facilitates comprehensive examination in light of other evidence presented at trial. Litigants are entitled to the protection of requiring the party offering a deposition to show that the witness is, in fact, unavailable.

Here, respondent did not even attempt to make a showing that the witness was “ . . . engaged in the discharge of his official or professional duty at the time of the trial.” The judge did not believe that such a showing was necessary and explicitly based his ruling on the sole fact that the witness was a “practicing” physician, without making a finding as to his unavailability at the time of trial. Therefore, the witness did not come within the exception in rule 57.07(a)(3)(C). Consequently, it was error to admit his deposition into evidence.

Furthermore, the error was so prejudicial as to require reversal. Dr. Schaerer’s testimony was the sole evidence of the surgery and the concomitant hospital and doctor bills. Obviously, the damage award was predicated on his testimony. If Dr. Schaerer’s evidence were excluded, there would be no evidence to support the verdict.

Cause reversed and remanded for a new trial on the issue of damages only.

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


author: GUNN, Judge.

text:
    L. W., Plaintiff-Appellant, v. G. W., Defendant-Respondent.
    No. 37026.
    Missouri Court of Appeals, St. Louis District, Division Three.
    March 9, 1976.

      Napier, Napier & Wright, George E. Wright, Fort Madison, Iowa, for plaintiff-appellant.
    Coburn, Croft, Shepherd & Herzog, John R. Musgrave, St. Louis, for defendant-respondent.
   GUNN, Judge.

On a petition for modification of child custody the trial court ordered the transfer of custody of a three year old boy from his mother to his father. The mother appeals the award. We find that there was ample basis for the transfer of the child’s custody from the mother to the father and affirm the trial court’s ruling.

There was sufficient evidence to support the finding of the trial court as to the father’s fitness for custody of his child, and the mother does not challenge the father’s fitness. Our decision in this case to affirm the award of custody of the child to the father rests on the issue of the mother’s fitness.

The mother (appellant) and father (respondent) were divorced in 1972, and the mother was awarded custody of their infant son born of the marriage. In December of 1973, the mother and son began living with a male companion. The circumstances occurring while the mother and son lived with the male companion formed the basis of the transfer of the custody of the son from the mother to the father. Shortly after the male companion and mother met in December, 1973, he moved in to live with the mother and son in the mother’s Kahoka, Missouri apartment. Apparently, the male companion and the mother were hosts for frequent parties, and in January, 1974, their landlord requested them to vacate the apartment because of the noise emanating from the parties. The mother, son and male companion then moved to live with the male companion’s parents, his two brothers and sister. They lived with the male companion’s family for about two weeks before moving to another apartment where they lived for about a week before being requested to leave, again because of the noise they made. The three (mother, son and male companion) made the trek back to the male companion’s parents for another three to four week stay before moving to another apartment to live together, this time for a period of approximately four to six months. Another move was made by the peripatetic threesome, this time to an apartment in Keokuk, Iowa. Thus, within a period of approximately eight months, the son was required to move six times, during which the mother continued to live with a man to whom she was not married, and at least part of the time the son shared the same bedroom with the male companion and the mother. But there is more.

In the early morning of September 27, 1974, the Keokuk apartment was raided by police pursuant to a search warrant obtained after law enforcement agents had made purchases of large quantities of narcotics from individuals operating out of the mother’s apartment. The mother and her son, the male companion and several other persons were present in the apartment when the incursion occurred. A large number of stolen weapons, including hand guns, rifles and a .45 caliber semi-automatic weapon, resembling “the old-style Thompson sub-machine gun” were confiscated. An unspecified quantity of marijuana and a stolen television set were also found in the apartment. The mother and male companion were arrested, and the male companion subsequently pleaded guilty to two felony counts for violation of the Federal Gun Control Act, to one felony charge for delivery of a controlled substance and to one misdemeanor for delivery of a nonscheduled drug. The mother was charged with conspiracy to commit a felony and with possession of a controlled substance. At the time of the custody modification hearing, the charges pending against the mother had not been resolved. At the hearing, the mother acknowledged her personal use of marijuana since she commenced living with the male companion.

After the raid, the father sought transfer of custody rights of the son to him with the basic substance of his modification petition alleging the mother’s unfitness. Although there were some allegations made by the father which were found by the trial court to be apocryphal, we believe the foregoing evidence properly supports the trial court’s order transferring custody of the child to the father. In reaching our decision, we are fully cognizant of and apply the basic postulations relating to child custody transfer proceedings which we hereinafter relate.

We first find that although the divorce between the mother and father was in 1972, this modification proceeding is governed by the Dissolution of Marriage Act, §§ 452.-300-452.415 RSMo.Supp.1974. Section 452.410, regarding modification of custody decrees, provides:

“The court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.”

Second, the child’s interests and welfare predominate over all other considerations in a child custody matter. E. C. S. v. J. D. L., 529 S.W.2d 423 (Mo.App.1975); Noland v. Noland, 527 S.W.2d 696 (Mo.App.1975). We also recognize that the moving party — in this case, the father — has the burden of showing a change of conditions necessitating the transfer of custody. Northrup v. Sieve, 517 S.W.2d 470 (Mo.App. 1974). Further, even though there is a presumption that a mother is better fit to have custody of a child of tender years, that presumption is not conclusive. Johnson v. Johnson, 526 S.W.2d 33 (Mo.App.1975). And, certainly, moral fitness of the parents is a matter of prime concern for the court in determining who should have custody of a child. V. M. v. L. M., 526 S.W.2d 947 (Mo.App.1975).

The mother asserts that there was no evidence in the record taken as a whole to support the transfer of her three year old son to the father. We disagree. The record is overwhelming with evidence of the mother’s opprobrious conduct. She has lived in open and notorious adultery with a man, sharing the same bedroom with him and her son. She has skipped from place to place — at least six moves in less than a year. She has admitted her use of a controlled substance. And we are critically concerned with her association with the male companion. An apparent drug trafficking and illicit stolen weapon operation has been conducted within the same dwelling where the infant son lived — scarcely a salubrious atmosphere for the boy. We cannot condone the conduct of the mother. We also note that rather than condemning the male companion for his activities, shortly after the raid the mother married him and continues to live with him. The arrests of both the male companion and the mother and the conduct of both in creating an environment for the child is a proper subject of inquiry as to the mother’s fitness and affords ample basis for the trial court’s modification order. Feltman v. Feltman, 514 S.W.2d 353 (Mo.App.1974). In Feltman v. Feltman, supra, a mother was deemed unfit in a child custody transfer case where it was found that after her divorce from the child’s father, she had married a man who kept marijuana and pictures of nudes in the apartment where the mother and child lived. Much more unsuitable is the mother here with the conditions in which she has permitted her infant son to live.

The environment offered by the mother to the child is completely unwholesome and unsuitable, and the trial court had no choice but to transfer custody. We find the conduct of the mother with her adult companion deleterious to the child’s best welfare. The vicissitudes of life cause sufficient burdens without the miasmatic conditions which the mother has foisted upon her child.

On appeal, the mother attempts to smoke screen the issue of her conduct by asserting that the trial judge based his decision for transfer on the fact that the male companion is black and the mother is white. The suggestion is untenable. The trial judge clearly based his decision upon the environment thrust upon the infant by the mother and the male companion — not on a racial basis.

Our duty is to review this case de novo, giving due deference to the trial court’s findings. Giving effect to this admonition, we have no doubt that the child’s best interest will be served by the transfer of custody. There is ample justification to defer to and sustain the trial court’s finding. There is no reason to disturb the award. Brand v. Brand, 534 S.W.2d 628 (Mo.App.1976).

The judgment is affirmed.

SIMEONE, P. J., and KELLY, J., concur.

      . The father owns his own home, has a responsible job and is able to provide a stable environment for his son.

      . The mother described the male companion as her common law husband.

      . Section 452.415(3) provides that the dissolution statute shall apply to “all proceedings commenced after January 1, 1974 for the modification of a judgment or order entered prior to January 1, 1974.”

      . She has apparently moved at least one more time since the raid on her apartment.

      . The raid was September 27, 1974; the mother married the male companion October 12, 1974.


author: WEIER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert Tyrone DUKE, Defendant-Appellant.
    No. 36866.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 9, 1976.
    James C. Jones, Joseph W. Warzycki, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas J. Ka-vanaugh, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

By a jury verdict, defendant Robert Tyrone Duke was found guilty of assault with intent to maim with malice. § 559.180, RSMo. 1969. He was sentenced to twenty years in custody in the Department of Corrections.

Defendant advances two points on appeal. First, he asserts that the trial court erred in permitting the prosecutor to inquire as to the defendant’s right to remain silent and thereby comment on the defendant’s failure to make a statement while under arrest. Second, defendant contends that a mistrial should have been granted when it was discovered that a palm-print card from police files, which had already been examined by the jury upon being admitted into evidence, contained statements about other crimes for which the defendant was not on trial. We affirm.

The facts sustaining the conviction may be briefly stated. Gertrude W. Merchel, then aged 75 years, was awakened on March 3,1974 in the early morning hours by footsteps outside her bedroom window. After arising she then heard another noise and saw two arms raise the window opposite the divan upon which she was sitting. When she ran to the front door to call for help, she was grabbed from behind and thrown on her bed. Her assailant struck her and she sustained extensive physical injuries. She passed out, but regained consciousness a few hours later. Police detectives, in investigating the ransacked apartment, found a prescription tablet bottle bearing the name “Robert Duke” on the living room floor under the window through which the assailant entered the victim’s apartment. Of the four fingerprints that were lifted from the screen over the window, one was positively identified as containing the palm print of the defendant.

After defendant was placed under arrest he was advised of his constitutional rights, including the right to remain silent and that anything he might say could be used against him. The police witness who testified to this was asked whether defendant was then released or booked. The officer replied that the defendant was detained.

Defendant’s first contention of error was that the prosecutor should not have been permitted to elaborate on defendant’s right to remain silent. But defendant has failed to preserve this point on appeal. Not only did defendant fail to make an objection during this testimony, he also failed to raise the point in his motion for a new trial. State v. Scott, 515 S.W.2d 524, 527[4] (Mo. 1974); State v. Halk, 524 S.W.2d 44, 48 (Mo.App.1975). Furthermore, defendant has failed to demonstrate that the testimony resulted in manifest injustice or a miscarriage of justice. Thus, the contention fails to qualify as plain error within the terms of Rule 27.20(c). State v. Halk, supra.

Of the exhibits that were shown to the jury, one, a finger print card, had writing on the back. This exhibit was the palm print lifted from the window screen, and the writing on the back was as follows: “Burglary-Robbery, Assault, 600 North Kingshighway, Department 804. Victim, Gertrude Merehel.”

Defendant contends that it was prejudicial error to permit the jury to examine this exhibit because it contained a reference to the crimes of burglary and robbery, both crimes for which defendant was not on trial. Again, defendant has failed to properly preserve this point for appellate review. At the trial, defendant’s objection to the exhibit was that: “[N]o proper chain of custody [has been] shown or proven.” Defendant did not object at that time to the exhibit being passed among the jury. Only after the jury had requested a re-examination of the exhibit during their deliberation did defendant offer his first objection to the writing on the back of the card. The court sustained the objection. The card was not sent to the jury. The motion for new trial did not present this ground as error in the trial for the court to correct. The request for relief on this point was made for the first time on appeal. Failure to assert a timely objection at trial and failure to include the point in a motion for new trial precludes further consideration of defendant’s second contention. State v. Scott, supra. Defendant also fails to indicate that manifest injustice has been done to him or that there has been a miscarriage of justice with respect to his second point on appeal.

The judgment is affirmed.

McMILLIAN and RENDLEN, JJ., concur.

      . Counsel for state and defendant agree that the jury probably never saw the back of the card when it was passed to them for inspection.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Nathaniel BUTLER, Appellant.
    No. 36270.
    Missouri Court of Appeals, St. Louis District, Division Two.
    March 9, 1976.

      Doris Gregory Black, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Charles Howard, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas C. Muldoon, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Defendant-appellant was convicted of robbery and first-degree murder. His points on appeal include pre-trial identification and lineup conduct; instructions; limitation of cross examination of a witness and the State’s proof defendant’s act was the cause of the victim’s death. We find no reversible error and affirm. Defendant’s motion to reduce the amount of bail was taken with the case and is ordered denied.

Several witnesses viewed defendant at a lineup. Immediately before trial defense counsel moved to suppress these identifications. Defendant now contends (1) a photographic showing to one witness was suggestive; (2) witnesses were permitted to congregate outside the lineup identification room; (3) police in charge of the lineup failed to alter defendant’s position after each witness’ view; (4) lineup co-participants did not resemble defendant and (5) defendant was denied his right to counsel at the lineup.

Defendant has not diligently drawn our attention to parts of the record supporting his factual allegations. The only evidenee on points (2) and (4) above indicate police did separate witnesses after each view and all co-participants in the lineup closely resembled defendant since police did segregate witnesses after their views they could not discuss defendant’s position in the lineup and there was no reason to change his position. Since the record does not support defendant’s position on these points, they are denied. See State v. Neal, 484 S.W.2d 270[2] (Mo.1972).

Similarly, defendant fails to show suggestiveness in the photographic display. Eight to 12 photos, including one of defendant, were handed to one witness. He was told to “look through the stack of photographs, take his time, and be sure, and if he wasn’t sure, to be sure and tell us.” The record does not bear out defendant’s allegations of suggestiveness and the point is denied. State v. Wallace, 504 S.W.2d 67[18] (Mo.1973).

All three lineup witnesses viewed defendant at close range on the day of the offense. Each made positive in-court identifications. Even if there were suggestiveness in a photo or lineup identification, “where there is an untainted positive in-court identification made upon a factual basis independent from such photographic or lineup procedures, such in-court identification is proper.” State v. Rutledge, 524 S.W.2d 449, 456[5] (Mo.App.1975) and State v. Ross, 502 S.W.2d 241[2] (Mo.1973).

Defendant’s last suppression point is that he was denied counsel at the lineup. The lineup was conducted the day following the robbery/murder; no information or indictment had been filed. There is no constitutional right to counsel at a pre-indictment lineup. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). Nor at a photographic showing. U. S. v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973).

We hold the trial court’s refusal to suppress identification was not erroneous.

Three instructions are claimed to be erroneous. Instructions Nos. 4 and 8 are said to be at variance with the indictment, inhibiting defendant’s ability to prepare a defense. Instruction No. 6, the verdict director for robbery, is said to omit essential elements of the offense.

Instruction No. 4 is a felony murder instruction. It is a proper submission of MAI-CR 6.19, pre-September 1975 amendment. Since the indictment charging defendant with murder contains no specific reference to felony murder in connection with a robbery, defendant contends he was prejudiced. We disagree.

“A prosecution for first degree murder which occurs in the perpetration of a felony enumerated in § 559.010 may be on the basis of an indictment or information which charges a wilful, deliberate and premeditated killing, without referring to the fact that the homicide occurred during perpetration of a felony mentioned in the so-called felony-murder statute. . . . The state should not be required to recite in its indictment the proof or the fact that such proof that it will offer to establish premeditation or deliberation will be supplied by showing that the homicide occurred in the perpetration of a robbery. The indictment was sufficient to advise the defendant of the nature and cause of the accusation against him . . . .” State v. Beal, 470 S.W.2d 509, 512[1, 2] (Mo.1971).

Instruction No. 8, MAI-CR 2.10, was proper even though the indictment did not charge defendant acted jointly with another. Defendant contends the indictment’s failure to refer to a co-participant limited the State’s right to submit that defendant acted with another person. As part of this point, defendant challenges the indictment’s validity. It is proper to include the names of persons charged jointly in an indictment, “although failure to so join them does not invalidate the pleadings.” Section 545.140, V.A.M.S. See State v. McKissic, 358 S.W.2d 1 (Mo.1962), upholding an information which charged the defendant only with having committed a robbery even though the evidence was that the defendant had planned the robbery with others and was present with them when it occurred.

The State’s evidence warranted MAI-CR 2.10. It showed defendant acted with another in committing the crimes. MAI-CR 2.10 Notes on Use require the instruction be given when “defendant was an active participant in the crime or its attempt, even if he was not the principal actor . . . .” It was proper to admit testimony that another person participated in the crime. The fact of joint participation tended to show the manner of the crime’s commission; its disclosure at trial did not adversely affect the defendant’s rights. The point is denied.

Instruction No. 6 follows MAI-CR 7.62, verdict director for first-degree robbery by means of a dangerous and deadly weapon. Defendant’s motion for new trial alleged error in these words: “That the Court erred in the giving of Instruction No. 6 in that Instruction No. 6 is improper upon its face in view of Instruction No. 4.” On appeal, defendant broadens this by contending the instruction omitted essential elements of the offense. His claim of error was vaguely stated initially. General allegations preserve nothing for review and since the alleged error of omission in the instructions was not raised below we do not consider it here. State v. Watson, 511 S.W.2d 890[5-8] (Mo.App.1974); State v. Gardner, 524 S.W.2d 38[4-6] (Mo.App.1975). Plain error Rule 27.20(c) has not been alleged and we find no manifest injustice justifying our intervention.

The following cross examination of the prosecution witness/victim took place during trial:

“Q: Now, let’s go back to the night of the shooting and the robbery. You say he took your rings?
A: Yes, sir.
Q: What kind of ring was it?
A: A diamond ring.
Q: Where did you buy it?
A: From a friend?
Q: From a friend?
A: Yes, sir.
Q: Who—
MR. MULDOON: I object. It’s immaterial.
MR. BELL: He may not have even had that ring. He said he had a ring. I’ve got the right to explore it.
MR. MULDOON: It doesn’t make any difference where it comes from.
THE COURT: Sustained.
MR. BELL: I’ll make an offer of proof. I make an offer of proof to show that this man, if he were allowed to answer the question, he would say he didn’t know who the friend was. I have my serious doubts he ever had the ring. . . .”

The scope of cross examination is within the broad discretion of the trial court. State v. McAllister, 468 S.W.2d 27[6-9] (Mo.1971), and State v. Williams, 492 S.W.2d 1[2, 3] (Mo.App.1973). It is not error to refuse to admit immaterial facts. State v. Walden, 490 S.W.2d 391[l-3] (Mo.App.1973). Ownership was a collateral issue. No reasonable possibility exists that sustaining this narrow objection on grounds of immateriality contributed to defendant’s conviction. Where the jury receives the gist of the testimony defendant attempts to elicit, error in sustaining objections to an isolated question is not prejudicial. State v. Garrett, 391 S.W.2d 235[9] (Mo.1965).

Appellant’s last point is that the State failed to prove causation. Eye witnesses identified defendant as the person who shot the victim. Dr. Thomas, the coroner’s physician, testified the victim “died from the complications of the bullet”; he opined the victimas death was septicemia caused by infection from the bullet. “One who inflicts an injury on another is deemed by the law to be guilty of homicide if the injury contributes mediately or immediately to the death of such other. The fact that other causes contribute to the death does not relieve the actor of responsibility.” State v. Cheatham, 340 S.W.2d 16, 20[7-9] (Mo.1960). Viewing the evidence in a light favorable to the State, we rule it was sufficient to establish defendant’s act as the cause of death.

Judgment affirmed.

DOWD and STEWART, JJ., concur.