text:
    Thomas J. PHIPPS, Appellant, v. The SCHOOL DISTRICT OF KANSAS CITY, Missouri, Respondent.
    No. KCD 30208.
    Missouri Court of Appeals, Western District.
    Sept. 4, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 1, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      Doyle R. Pryor, Jolley, Moran, Walsh, Hager & Gordon, Kansas City, for appellant.
    Taylor Fields, North, Colbert & Fields, Kansas City, for respondent.
    Before SHANGLER, P. J., WASSER-STROM, C. J., and CLARK, J.
   WASSERSTROM, Chief Judge.

This case stems out of the 1977 Kansas City school strike, during which many of the school employees, including plaintiff Phipps, were terminated for strike activity. As part of the strike settlement, the parties agreed to reinstatement of most of the employees who had been terminated. The job offered to Phipps by way of reinstatement was unacceptable to him, and he pursued a grievance proceeding before the defendant School District. From an adverse ruling in the grievance proceeding, he sought review in the circuit court. The circuit court dismissed his petition, from which action Phipps pursues the present appeal.

Some of the basic facts appear in the Petition for Review filed by Phipps in the circuit court, and other of the facts appear in the School District’s Motion to Dismiss and exhibits attached thereto. On April 25, 1977, Phipps’ employment was terminated “for excessive absence.” At that time he had the position of Custodian-Fireman. On May 9, 1977, pursuant to an order by Judge Clymer in the circuit court, the terminated employees including Phipps were reinstated. However, in School District of Kansas City v. Clymer, 554 S.W.2d 483 (Mo.App.1977), this court held Judge Clymer exceeded his jurisdiction and prohibited enforcement of his order. Pursuant to that writ of prohibition, Phipps was again terminated effective July 8, 1977. It is of key importance for the purposes of this case to note that during the brief period that Phipps had been reinstated under Judge Clymer’s order of May 9, 1977, he had been demoted from Custodian-Fireman to the lower classification of Custodian I.

The legal battle, however, had just begun. On July 13,1977, the striking employees filed a class action lawsuit in the federal court under the Civil Rights Act. They complained that their civil rights had been violated in that their termination of employment was without just cause as required by certain published Board policies, and because further the School District had failed and refused to process this complaint as a grievance as required by other published Board policies and the requirements of constitutional due process.

On August 26, 1977, the School District and the Service School Employees Union, Local 12, entered into a Tentative Agreement, which provided in part for settlement as follows:

“1. All employees terminated effective April 25, 1977 and/or July 8, 1977 will be permitted to apply for reappointment to the positions from which they were terminated.
“2. [Ejach person who applies for reappointment by delivering to the District a completed form requesting reappointment shall be reappointed to a position with the same salary as that position held with the District on the date of termination. .
******
“7. The pending lawsuit (Walker et a1., v. Carpenter, et a 1.) will be dismissed with prejudice .
“8. Except in the event of an alleged breach of this agreement by the School District, no further administrative, legal or equitable proceedings will be instituted or financed by Local 12 on behalf of these employees terminated on April 25, and/or July 8, 1977 for reasons related to said terminations or relative to the job action against K. C. School District and arising during the period 3/20/77 through 7/8/77. All alleged breaches of this agreement will be processed through the agreed upon grievance procedures.”

Thereafter Phipps did apply for reinstatement in compliance with the terms of the agreement, and he was offered reinstatement as Custodian I, the job he held on the date of the second separation effective July 8. Phipps refused that offer on the ground that he was entitled to reinstatement as Custodian-Fireman, the position he held on April 25, 1977, the date of original termination. In view of this disagreement, Phipps initiated grievance proceedings under Board Policy No. 6580, a hearing was held as provided under that policy, with an ultimate denial by the School District of Phipps’ claim on January 13, 1978.

While that grievance procedure was in progress, the School District and the Union were also moving toward a formal disposition of the federal court litigation. By consent of the parties, the federal court entered an order on January 18, 1978, that notice of the proposed settlement and dismissal of the class action be mailed to all members of the class, and such a notice was mailed to all of the affected employees, including Phipps, on January 23, 1978. That notice provided in part as follows:

“Walker and Caldwell have requested this Court to dismiss this action because Walker and Caldwell and the people they represent have either (1) had the opportunity to return to work at the School District and have not responded to that opportunity or (2) have in fact returned to the School District as full-time employees.
* * * * * ⅜
“If this action is dismissed by the Court as requested by plaintiffs and defendants, it may prevent you from making the same claims against these defendants in the future. If you do not believe that this case should be dismissed in a manner which might effect [sic] your ability to make these claims in the future, you should file a written statement with the Honorable Elmo Hunter, United States District Judge, 811 Grand Avenue, Kansas City, Missouri, with copies to Mr. Pryor and Mr. Bartlett at the addresses shown above, on or before January 30, 1978, setting forth in detail each reason why you object to this proposed settlement. If you do not file such a statement prior to January 30, 1978, the Court may dismiss this action as requested by both plaintiffs and defendants.”

The present action was filed in the circuit court on February 10, 1978, and sought judicial review “of a final decision in a contested case” or alternatively for judicial review “in the nature of certiorari.” The School District responded with a motion to dismiss for failure to state a claim upon which relief could be granted. That motion was sustained by the trial court.

That ruling by the trial court was not explained by any finding, conclusion or statement of reasons. However, the grounds for the motion as set forth therein and as argued by the School District in this court rest on the following theories: 1) that the dismissal with prejudice of the federal court action bars the present litigation under the principles of res judicata; and 2) that Phipps has not followed the proper procedure for a judicial review, in that (a) this is not a “contested case” ; and (b) the requirements for reviewing an “uncontested case” have not been met. We have concluded that these objections are not sound and that the dismissal of this case by the trial court must be reversed.

I.

Res Judicata

Phipps’ first rejoinder to the res judicata argument is that the School District did not lay any proper foundation for a ruling on that issue in that: (a) the motion to dismiss was not verified, it was not supported by any affidavit, and the purported federal court records attached as exhibits were not certified; and (b) the trial court did not purport to treat the motion to dismiss as a motion for summary judgment, as would be required under Rules 55.27(a) and 74.04 in order for the motion to dismiss to be given effect as a “speaking motion.”

Phipps is technically correct, especially in regard to the first of the two contentions just mentioned. However, there is no dispute whatsoever as to what happened in the federal court. In the course of oral argument before this court, counsel for Phipps with commendable candor stated with respect to the federal court documents: “I don't dispute that they were authentic. . They are what they purport to be.” We will treat that concession as a stipulation concerning the authenticity of the federal records in question. The failure of the trial court to formally treat the School Board’s motion to dismiss as a motion for summary judgment under Rule 74.-04 is of little moment and will be disregarded.

The present proceeding cannot be deemed foreclosed by the federal litigation under the strict doctrine of res judicata. Under that doctrine, taken in its strict sense, a second suit becomes precluded only when it proceeds on the same cause of action as that of an earlier case which has already been adjudicated. L_ v. R_, 518 S.W.2d 113 (Mo.App.1974). The present situation is not of that character. The cause of action here differs sharply from that presented in the federal court. The federal court litigation sought to vindicate a federal right not to be discharged without a hearing on the issue of just case. The present cause involves a completely different question as to whether Phipps is entitled to be reinstated as a Custodian-Fireman rather than as a Custodian I.

Nor does the related doctrine of collateral estoppel apply. That doctrine comes into play only when a party seeks to reliti-gate for a second time an issue which has already been decided in prior litigation between the same parties or their privies. There is no issue in the present ease which was ever before the federal court. The issue here has to do with the proper interpretation of the settlement agreement which led to the consent disposition of the federal case. No problem concerning that settlement agreement was, nor in the nature of things could it have been, a subject of the pleadings in the federal case. Nor was this issue of interpretation presented to the federal court in any ancillary way.

What the School District seems to be really saying is that Phipps was invited in January 1978 by the notice of settlement to present his problem to the federal court, and that having been given that opportunity, he is now foreclosed from seeking a resolution of the issue anywhere else. That, however, is an unwarranted purpose and result to be attributed to the federal court notice. That notice simply told the affected employees that they should make any reasons known to the federal court “which might effect [sic] your ability to make these same claims in the future.” Phipps was no longer making the same claim which had led to the federal court action. Instead, in January 1978 he was complaining about the manner in which the School District was purported to comply with the agreement which disposed of the federal action. With respect to the latter type of question, the settlement agreement contained its own explicit answer as to how the parties were to proceed and before whom. That procedure plainly stated was that “All alleged breaches of this agreement will be processed through the agreed upon grievance procedures.”

The various authorities cited by the School District have all been examined and found to be inapplicable. So, for example, Varnal v. Kansas City, 481 S.W.2d 575 (Mo.App.1972), the case most heavily relied upon by the School District, involved a suit alleging harassment against the plaintiffs in connection with enforcement of the City Building Code. The plaintiffs had previously tried and lost a suit in the federal court brought under the federal Civil Rights Act in which they had alleged the very same acts of alleged harassment. In holding that the federal court judgment was res judica-ta, this court pointed out: “the two causes as pleaded are identical. There has been no showing of any variance between them in any respect.” As has already been shown, that is not the situation here.

II.

Phipps argues that he is entitled to judicial review of the grievance proceedings either on the ground that it is a “contested case” under Section 536.100 (all statutory references are to RSMo 1978) and Rule 100.-03; or else he is entitled to have it reviewed as an “uneontested case” under Section 536.150 and Rule 100.08. We have concluded that Phipps is incorrect as to the first of those contentions, but is correct as to the second.

A. Contested Case. The term “contested case” is defined by Section 536.010(2) and Rule 100.01(3) as follows: “ ‘Contested case’ means a proceeding before an agency in which legal rights, duties and privileges of specific parties are required by law to be determined after hearing.” Phipps says that the grievance procedure meets this definition because Board Policy No. 6580 does require hearings at various steps. The School District, on the other hand, argues that the requirement of a hearing under a Board Policy does not arise to such dignity as to meet the criterion of “required by law.”

The parties here sharply debate the question of whether a hearing is “required by law” if the requirement is made by an administrative regulation as opposed to the requirement being imposed by statute. Much of this debate swirls around the illustrative listing contained in State ex rel. Leggett v. Jensen, 318 S.W.2d 353, 356 (Mo. banc 1958) where it is stated that the requirement of a hearing must be “by constitutional provision, statute, municipal charter provision or ordinance.”

We will assume for the purpose of this case, without deciding, that a requirement for hearing by a regulation suffices to meet the definition “required by law.” Even so, that assumption leads to still a further question as to whether Board Policy No. 6580 can even be considered a regulation. The policy declarations, of which No. 6580 is one, have an unusual genesis. Ordinarily grievance procedures are agreed to as a result of collective bargaining and appear in a labor agreement which culminates the bargaining process. However, that usual situation is not possible in dealings between a School District and a labor organization representing its employees because of the so-called “meet and confer” statute, Section 105.520. That section provides that whenever a union representing employees of a public body presents proposals, then the public body “shall meet, confer and discuss such proposals” and that upon completion of discussions, “the results shall be reduced to writing and be presented to the appropriate administrative, legislative or other governing body in the form of an ordinance, resolution, bill or other form required for adoption, modification or rejection.”

It appears obvious that Policy No. 6580 was adopted under that statutory provision in a form deemed by the School District to be an action parallel and equivalent to an “ordinance.” Thus Policy No. 6580 is the kind of public action which falls within the general concept set forth in State ex rel. Leggett v. Jensen, supra, which speaks of a hearing required by “constitutional provision, statute, municipal charter provision or ordinance.” (Emphasis added.)

The foregoing analysis however does not exhaust the question of whether the present grievance proceeding was “required by law.” The term “grievance” covered by Policy No. 6580 is defined in Section 1 — A as follows: “A ‘grievance’ is an alleged violation or misapplication of a Board policy included in the ‘Handbook.’ ” Phipps does not claim that the dispute concerning whether he should be reinstated as a Custodian-Fireman or a Custodian I constitutes a violation of misapplication of anything in the Handbook, nor is any copy of or excerpt from the Handbook included in the record on appeal from which that matter could be determined independently. Rather than being a matter growing out of a violation of the Handbook, this particular grievance came through the grievance machinery because of paragraph 8 of the agreement which settled the federal litigation. In the factual context of this case, the hearing held during the course of the grievance procedure is more accurately characterized as being required by agreement of the parties rather than being required “by law.” Therefore, there was no hearing required by law within the definition of Section 536.-010(2) and Rule 100.01(3).

B. Uncontested Case. Nevertheless, Phipps does have a right of review of the grievance decision as an “uncontested case.” Although the School District’s position was originally not entirely clear, the nature of its objection to review under Section 536.-150 and Rule 100.08 was clarified during the course of oral argument before this court. In the course of that oral argument, counsel for the School District made the straightforward statement that the grievance proceeding here is a noncontested administrative proceeding under the Administrative Procedures Act, Chapter 536.

The objections being pressed by the School District toward review here as an uncontested case stand on the following very narrow grounds: (a) the School District says that the allegation in the petition that review is being sought “in the nature of certiorari” is vague and confusing; (b) the School District further says that Phipps should have but did not comply with the procedural requirements of Rule 84.24.

As to the first of those two objections, it must be observed that the statute and rule provide that the review may be. by injunction, certiorari, mandamus, prohibition “or other appropriate action.” Just what label is attached to the petition for review cannot be considered of any real significance. Phipps’ petition for review stated with clarity that he was seeking judicial review of the result reached in the grievance proceeding and that he was asking for relief either under the provisions relating to contested cases or alternatively under Section 536.150 and Rule 100.08 relating to uncontested cases. The School District’s first objection is hypertechnical and is overruled.

As to the second objection, it suffices to say that Rule 84.24 applies only to proceedings for extraordinary writs in the Supreme Court or in the Court of Appeals. That rule has no application to judicial proceedings for review of administrative proceedings originating in the circuit court.

The judgment is reversed and the cause remanded for further proceedings.

All concur.

      . The record before this court does not reveal what issue or issues were argued in the grievance proceeding or what evidence was introduced. None of the arguments presented in the circuit court or here touch the substantive issue of which job it was to which Phipps was enti-tied to reinstatement. The terms of the settlement agreement in this respect are ambiguous as they relate to Phipps’ situation, and that ambiguity awaits to be adjudicated with the help of any appropriate evidence which may be available.


source: Caselaw Access Project

author: KENNEDY, Judge.

license: Public Domain

text:
    Delois ROBERSON and James Roberson, Plaintiffs-Appellants, v. MENORAH MEDICAL CENTER, Defendant-Respondent.
    No. KCD 30260.
    Missouri Court of Appeals, Western District.
    Sept. 4, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 1, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      Elwyn L. Cady, Jr., Independence, for plaintiffs-appellants.
    Robert M. Sommers and Neal E. Millert, Kansas City, for defendant-respondent.
    Before DIXON, P. J., and SOMERVILLE and KENNEDY, JJ.
   KENNEDY, Judge.

At the conclusion of plaintiff’s evidence in an action for damages against defendant Menorah Hospital, the court sustained defendant’s motion for a directed verdict. From the ensuing judgment for defendant, plaintiff has prosecuted this appeal.

Finding, as did the trial court, that plaintiff’s evidence failed to make a submissible case against the defendant, we affirm the judgment.

Plaintiff’s case consisted of her own testimony and that of her husband, who testified briefly to her continuing disabilities, and medical records. There was no expert testimony.

Facts.

Plaintiff Delois Roberson had consulted Dr. Jacobs with complaints of vaginal bleeding and intercourse pain. Dr. Jacobs told the plaintiff she might need a “D and C”, a “scraping of the womb”. He suggested Menorah Hospital, and he recommended Dr. Mooney to perform the operation. Plaintiff entered Menorah Hospital. Dr. Mooney saw the plaintiff three or four times before the surgery, and recommended removal of the uterus, because she had “tumors”. Plaintiff agreed to the surgical removal of the uterus. Dr. Mooney told her she would be in the hospital about five days and then would spend about six weeks recuperating. Dr. Jacobs also continued to call upon plaintiff in the hospital after Dr. Mooney had entered the case.

The surgery, described as a “vaginal hysterectomy” was performed on March 25, 1974. She apparently was discharged from the hospital on April 1. She testified she had not improved when she left the hospital.

She continued to have difficulty after her return home. She went back to Dr. Mooney twice, but according to her testimony he gave her no treatment. Dr. Mooney referred her to Dr. Wise. Dr. Wise first saw her on April 15. He discovered she had “a leakage”, gave her some pain pills and put a catheter in her. The leakage was found to result from a vesicovaginal fistula, which allowed the leakage of urine from the bladder into the vagina. The Menorah clinical resume said the leakage had shown up three days before the April 15 examination. On April 28 she returned to Menorah Hospital, still under the care of Dr. Wise. This time she underwent an operation described in the hospital records as “cystocopy with retrograde and drainage of urinary extravasation”. “And he explained to me that he was trying to stop the leakage, this hole, or whatever”, the plaintiff said. Plaintiff described the second operation as follows: “. . .He had made an incision in my side and put a tube there for my urine to pass.” She was discharged on May 1.

Plaintiff was hospitalized yet a third time, on May 30. On this occasion she underwent major surgery “because the tube that was there . . . wasn’t healing because I was having the IVP and he put me back in and did major surgery to repair it”. She was discharged on June 8, 1974. The condition for which the April and May surgeries were performed was the vesicova-ginal fistula. The condition was apparently corrected by the May 30 surgery.

Plaintiff testified that after the operation and still at the time of the trial, which began April 17, 1978, she was not able to lift anything too heavy. She was unable to sit too long or stand for a length of time because she got gas in her left side. She was aided in her housework by her husband, her three sons and sometimes her mother. Before the first operation she had been able to do lifting at home and at work. In July after the operation, plaintiff returned to her work at Western Electric where she was employed as a “process checker”, and continued to work there until August of 1975 when she was laid off due to a work shortage.

Plaintiff’s claim against Dr. Mooney, who had died before trial, had been settled for $4,500 and dismissed.

Duty of hospital to advise patient of risks of surgery and alternatives.

We look to appellant’s brief to find that she believes her evidence made a prima facie case against defendant hospital “because of a lack of informed consent to surgery”. The surgery to which she says she gave no informed consent was the vaginal hysterectomy, to which we gather she attributes the vesicovaginal fistula which necessitated the two following surgical operations and the difficulties and disabilities she described in her testimony. She claims it was the duty of the hospital to explain to her the risks involved in the first surgery, the possibility of complications and possible alternative methods of treatment.

The hospital, on the other hand, claims that it was under no such duty as the plaintiff attempts to place upon it.

It becomes necessary to state the evidence of the hospital’s role in securing the written consent. We will use plaintiff’s words with some editing:

Plaintiff was in the hospital in the surgical ward on the evening before the scheduled surgery. Plaintiff’s husband came to visit her and plaintiff thought he had to sign the consent. A friend of hers who had had the same operation had told plaintiff that her husband had been required to sign the consent. Plaintiff called the nurse and told her that her husband was there to sign the papers. The nurse said he didn’t have to sign them. The nurse brought in the consent form, left it and went back out. Plaintiff read it and it said “hysterectomy”, and plaintiff thought that meant removing everything. Plaintiff went out to the nurses’ station and told the nurse, “I’m not having everything removed, just the uterus”. Plaintiff did not read the entire consent form. The word “hysterectomy” struck her; it was standing out. The nurse said, “Well, that’s the way it’s worded”, and plaintiff said, “Well, how is he supposed to know he’s not supposed to take everything, when it says ‘hysterectomy’ and I’m only having one thing removed?” The nurse replied, “The doctor knows, it’s on his chart”. Plaintiff signed the consent. Plaintiff did not think she read any other portion of the permit than “vaginal hysterectomy”. Nobody read the form to her and nobody made any explanation of any other material in that form.

After this testimony from the plaintiff, her counsel asked her whether she would have permitted the surgery “if it had been explained that there were certain risks to this vaginal hysterectomy, as the paper stated, ‘risks involved, possibility of complications and possible alternative methods of treatment’ ”, Plaintiff replied that she would not have permitted the surgery.

Plaintiff introduced into evidence minutes of meetings of the medical records committee of the defendant hospital, held June 20 and July 14, 1969, in which patient consent and waiver forms were under consideration. The committee apparently had under consideration at that time a number of forms for patients’ consents and waivers. Pertinent to the form signed by the plaintiff are the following excerpts from those minutes: “In the permit for surgery — layman language — it was pointed out that a nurse would be filling this in rather than the physician. The question also arose as to how the physician would fulfill the requirements of telling the patient of the risks involved ... It was also recommended that these forms be presented to various departments, not just the chairman, for their approval.” (Italics ours.) We find in the minutes of the medical records committee meetings no other references to any form for consent to surgery.

There is no evidence in this record giving rise to a duty on the part of the defendant hospital to inform the patient of risks attendant upon this surgical procedure, or to inform her of alternative methods of treatment. Plaintiff was the patient of Dr. Jacobs and Dr. Mooney. It was Dr. Mooney who recommended the vaginal hysterectomy and who discussed it with plaintiff. There is no suggestion in the evidence that either physician was an agent of the hospital.

The presentation to the patient of risks involved in prospective surgery cannot but call for some very nice judgments. On the one hand the patient is entitled to such information as he needs to make an intelligent decision and to give an informed intelligent consent. And yet the patient may have his apprehensions unnecessarily and unduly heightened if risks are unwisely presented, leading him to an imprudent choice. Risks must be placed in perspective. The one dealing with the patient at this point must have knowledge of the patient— his temperament, his intelligence, his mental condition and his physical condition. He must also have a knowledge of the surgery itself — its risks, whether imminent or remote, and whether it is pressing, deferrable or optional. He must know the availability of conservative methods of treatment, if any, and their promises for success as compared to the surgery. All these factors must be placed in the equation. The physician alone is equipped to make the delicate judgments called for. Fiorentino v. Wen-ger, 19 N.Y.2d 407, 280 N.Y.S.2d 373, 227 N.E.2d 296, 300 (1967).

We speak in general terms, of course, recognizing that the hospital may in some cases have a responsibility in this area. See Gridley v. Johnson, 476 S.W.2d 475, 483-485 (Mo.1972); Fiorentino v. Wen-ger, supra; Hospital Law Manual (Health Law Center: Aspen Systems Corp.) Nov. 1977 UPDATE. But the present case is not one of those, and we hold that the defendant hospital in this case was under no duty to inform the plaintiff of the surgical risks.

Assumption by hospital of onus of advising patient of risks of surgery and alternatives.

Plaintiff, however, has argued that the hospital assumed the duty of informing the patient of the risks involved in the surgery and the possible alternate methods of treatment when the hospital furnished to plaintiff the consent form for her signature, and when it adopted the printed form of the consent. There is actually no evidence that the consent form signed by plaintiff had been adopted by the hospital, but we will assume for present purposes that it was.

Plaintiff cites us to no authority nor does she advance any plausible argument that the actions of the hospital in securing the consent, as described earlier in this opinion, or in adopting the printed form, was an assumption by the hospital of a duty which we have held was the business of the physician.

There was no reason for the hospital to suspect that the plaintiff had not been informed of risks and alternatives to the surgery. The form in fact contained the following recital: “The nature and purpose of the cited procedure, possible alternative methods of treatment, the risks involved, and the possibility of complications have been explained to me . . .” Plaintiff said she did not read that part, but nothing prevented her from perusing its every word. Plaintiff was a high school graduate. She signed the form after apparently being satisfied about the meaning of the words “vaginal hysterectomy”. A sentence in the medical records committee minutes, italicized above, shows the committee had in contemplation that the physician would explain the risks of surgery. No, we cannot agree that the hospital assumed that duty.

The cases cited by the plaintiff are of no aid to her. Moore v. Webb, 345 S.W.2d 239 (Mo.App.1961), is a case in which the defendant pulled all of plaintiff’s teeth while she was under anesthesia. She had authorized the extraction only of certain of the teeth. The permit which she had signed as she sank into anesthesia, without consultation, was held not to be binding upon her, and furnished no defense to the dentist. Plaintiff does not claim that the physician exceeded what she actually intended and actually expected in removing her uterus by means of the vaginal hysterectomy. She simply claims that there were complications and risks of which she was not informed, and that, if she had been so informed, she would not have consented to the surgery. This, she contends, vitiates the consent which she signed.

In the other case cited by plaintiff, Grid-ley v. Johnson, supra, the alleged negligence consisted of performing a “D and C” upon plaintiff without first ascertaining whether she was pregnant. The case holds that a motion to dismiss plaintiff’s petition against the hospital should not have been sustained without giving plaintiff an opportunity to plead further. The court observed, as noted above, that the duty of physicians and that of hospitals are not always definitely separated, and in some circumstances the hospital might have some responsibility for contraindicated surgery performed therein, even by an independent physician. But it falls far short of placing upon the hospital, in a case like the one now before us, the onus of explaining risks of surgery and the availability of alternative methods of treatment.

Scientific treatise as proof of contents.

Plaintiff offered to read to the jury, as a part of her proof, a passage from a medical treatise on gynecology. Plaintiff’s attorney stated that his purpose in offering this passage was “to show the alternative methods of treatment ... I feel it’s proper and admissible to have this in evidence showing a matter of alternative methods of treatment available.” Even if this were allowable proof, as it is not in Missouri, Hemminghaus v. Ferguson, 358 Mo. 476, 215 S.W.2d 481, 489 (1948); Cooper v. Atchison, T. & S.F.R. Co., 347 Mo. 555, 148 S.W.2d 773, 779-780 (1941), cert. denied 313 U.S. 591, 61 S.Ct. 1116, 85 L.Ed. 1546 (1941), it would not aid plaintiff’s case since we have held that it was not the hospital’s responsibility to advise the plaintiff of alternative methods of treatment.

Absence of expert testimony on medical cause and effect and on risk of surgery.

This record presents two other possible lacunae in plaintiff’s case, which we will note without extended discussion.

The second and third surgeries seem to have been necessitated by the vesicovagi-nal fistula which allowed the leakage of urine from the bladder into the vagina. The clinical resume of Menorah Medical Center recites that vaginal leaking showed up almost three weeks after the hysterectomy and this leakage was traced to the fistula. There is first no expert testimony that the hysterectomy caused the fistula. It is not obvious to the layman that it did so. In an area calling for medical knowledge, it would require expert testimony to establish the connection between the two. Sampson v. Missouri Pacific R. Co., 560 S.W.2d 573, 586 (Mo. banc 1978).

Furthermore, though the fistula might be the result of the hysterectomy, is it a “risk” of the hysterectomy of which plaintiff in good medical judgment and practice should have been advised? It is a question with which the layman would be ill equipped to deal without the aid of expert testimony, of which there was none. Aiken v. Clary, 396 S.W.2d 668, 673-674 (Mo.1965); Fiorentino v. Wenger, supra; Longmire v. Hoey, 512 S.W.2d 307 (Tenn.App.1974); Bly v. Rhoades, 216 Va. 645, 222 S.E.2d 783 (1976).

Conclusion.

The judgment is affirmed.

All concur.

      . While we refer to “plaintiff’ in the singular throughout the opinion, both Delois Roberson and her husband, James Roberson, were plaintiffs.

      . The consent signed by plaintiff is here set out in full:
      I, the undersigned, being a patient at The Menorah Medical Center, Kansas City, Missouri, having engaged Dr. Mooney, a physician and surgeon, to administer to me certain medical and surgical treatment, hereby consent to and authorize the administration and performance of the following (operation) (treatment) (procedure): Vaginal Hysterectomy which I under-(medical terminology) stand to be _ to be per-(in layman language) formed by the above named physician and surgeon, or any physician and surgeon, or any physicians or surgeons associated with or by him, or acting under any of their instructions utilizing the facilities of The Menorah Medical Center.
      The aforementioned (operation) (treatment) (procedure) shall include consent for arrangements for anesthesia procedures as may be considered necessary or advisable by the aforementioned physician and surgeon, by the Department of Anesthesiology of Menorah Medical Center or Anesthesiology Services, Inc., and any preliminary and/or further or additional treatments and operations, tests, transfusions, injections that may be, in the judgment of said physician and surgeon or any other physicians or surgeons that may be associated with or by him or any of his designees considered or deemed advisable or necessary at the time the contemplated (operation) (treatment) (procedure) is being performed, or at any time subsequent thereto, until I am discharged from The Menorah Medical Center.
      The nature and purpose of the cited procedure, possible alternative methods of treatment, the risks involved, and the possibility of complications have been explained to me. I acknowledge that no Guarantee or assurance of the results that may be attained has been given by anyone.
      (Applicable only if surgery) I consent to the pathological study and disposal by hospital authorities of any removed tissues. It has been explained to me that, during the course of the operation, unforeseen conditions may be revealed that necessitate an extension of the original procedure(s) or different procedure(s) than stated above. I therefore authorize and request that the above named surgeon, his assistants, or his designees perform such surgical procedures as are necessary and desirable to the exercise of professional judgment. The authority granted here shall extend to treating all conditions that require treatment which were not known to the named surgeon at the time the operation is commenced.
      The intention being to grant full authority to the said physicians and surgeons and said Menorah Medical Center, all their respective employees and assistants, to administer and perform all and singular any drugs, treatments, tests, or diagnostic procedures to or upon me which may now, or during the contemplated services be deemed advisable or necessary by the herein designated physician or surgeon, or any physicians or surgeons associated with or by him or acting under their or any of their instructions.


author: MANFORD, Judge.

text:
    STATE of Missouri, Respondent, v. Dennis D. SMITH, Appellant.
    No. 30280.
    Missouri Court of Appeals, Western District.
    Sept. 4, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 1, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      Stanley I. Dale, St. Joseph, for appellant.
    John D. Ashcroft, Atty. Gen., Kathryn Marie Krause, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Appeal from jury conviction for assault upon a police officer while in the performance of his duties.

Appellant is a resident of the City of St. Joseph. At the time of this occurrence, he and his wife had been separated some two or three weeks. They had a six year old daughter, Stacy. Appellant had a son nine years of age by a previous marriage who lived with appellant. Appellant’s wife and daughter Stacy had been living in Riverside and Kansas City. On August 2, 1977, the date of the offense, appellant’s wife, by agreement, had returned to appellant’s residence for the purpose of permitting appellant to visit with Stacy. It was understood appellant’s wife would prepare the supper meal and appellant would be home around 5:30 or 6:00 p. m. Appellant, however, did not return home until between 8:30 and 9:00 p. m. Appellant had dined with business associates at a local restaurant. During her wait for appellant, his wife had done some laundry. She found a woman’s bra in the clothing. When appellant returned home, his failure to show for supper at the appointed hour and the inability to explain the presence of the bra became an issue of discussion. The evidence is not quite clear which of the two matters provided the greater point of contention, but nonetheless, the parties commenced to quarrel. This quarrel found appellant’s wife going outside and locking herself in her automobile. Appellant followed her, but upon failing to persuade her to return inside, appellant returned to the inside of the residence for purposes of going to bed. Appellant’s wife, a bit later, went back inside and according to her testimony, found appellant spanking Stacy for Stacy’s having called the police. Appellant’s wife testified Stacy was sent to bed in the bedroom. Another quarrel ensued, and appellant’s wife noticed the phone was off the hook. She picked up the phone and held a brief conversation with a woman on the other end of the line. As the evidence will show, this other woman was Judy Harris, who testified for the state. At this point, appellant’s wife testified she asked if a police car had been sent to the residence. Appellant’s wife then stated appellant ordered her out of the house. She complied and returned to her automobile, which she drove across the street from appellant’s residence.

More concerning the testimony of appellant’s wife will be referred to, but at this juncture, it is necessary to summarize other evidence which depicts other events occurring simultaneously with the facts already outlined. During the first quarrel between appellant and his wife, 6 year-old Stacy had placed a call to the police and engaged herself in a conversation with one Judy Harris. Witness Harris asked several questions of Stacy, including her name, address and if anyone was being harmed. Stacy stated her father was outside and was going to bust her mother’s head open with a rock (or words to that effect). Witness Harris asked to speak to appellant’s son. The boy confirmed appellant was bothering appellant’s wife. Stacy returned to the phone and told witness Harris to forget the whole matter and not to send the police as she had previously requested. Stacy did not hang the phone back up and through the wonder of modern science, witness Harris could maintain an open line with the other phone instrument.

Witness Harris testified she heard a small female screaming and a male adult voice declare, “I’ll kill them!” Subsequent to this, an adult female voice (which was appellant’s wife) was heard by witness Harris, and the inquiry of whether a police car had been sent was made by appellant’s wife. The entire conversation between all the parties was taped by the police department.

Appellant’s wife, then being ordered out of the house by appellant, returned to her automobile without her daughter Stacy and moved the automobile across the street. Appellant’s wife testified she wanted to leave with her daughter and appellant protested, wanting them to stay, but thereafter ordered his wife out of the house. At this point Stacy, according to the appellant and his wife, was in bed.

As appellant’s wife parked her automobile, two police officers arrived on the scene. They parked their patrol car and met appellant’s wife outside the residence. The evidence given by appellant’s wife and the two officers, at this point, is not only critical to the issues herein, but is the most controverted part of the testimony.

Appellant’s wife testified she encountered the officers just a few feet from the front porch of appellant’s residence. She stated she identified herself to the officers and that she recognized Officer DeClue and Officer Wood. She testified there was further conversation to the effect, “Is that Denny inside?”,, to which she responded, “Yes”. She testified there was no further conversation between the officers and herself. She stated she went inside the house, passed appellant who was standing alone just inside the door and proceeded to the bedroom, where her daughter Stacy was lying on the bed. She testified that moments later she observed the two officers enter the house, confront appellant, and after a struggle, subdued appellant. She testified Officer DeClue was carrying a shotgun. She denied ever having a conversation with the officers concerning any weapons, either owned by appellant or in his residence.

The officers’ testimony stated they arrived on the scene, encountered appellant’s wife in the street and after she identified herself, she asked them to please help her get her daughter from inside the house. The officers also stated the wife, in response to inquiry if appellant had a gun, declared, “Yes, I think so.” The officers testified that upon their arrival, they observed appellant’s wife yelling at a small boy who was running down the street and heard appellant’s wife yell, “Come back, please come back, I promise daddy won’t hurt you anymore.”

The officers’ testimony related the following series of events. After appellant’s wife had made the statement about a gun, Officer DeClue went to the patrol car and returned to the front of appellant’s residence with a shotgun. The officers accompanied appellant’s wife to the front door. All was quiet from inside the residence at this time. DeClue then opened the screen and knocked on the front door. At this point, appellant’s wife said, “Here, I will open it for you,” and did open the door. When the door was pushed open, appellant was standing a few feet inside with his daughter, Stacy. Appellant had one hand on Stacy’s shoulder and the other hand in a raised or striking position. The officers stepped inside and appellant profanely ordered them out of his house. Appellant asked them what they were doing there, to which they answered that they were answering a disturbance call in response to the police dispatcher.

When the officers would not leave, a physical encounter took place between the officers and appellant. The evidence is controverted as to who provoked the physical encounter, but it resulted in appellant’s being subdued and taken to the local bastille. There was evidence of a further confrontation between appellant and law enforcement officers at police headquarters.

The jury, after hearing the evidence, found appellant guilty as charged and the court imposed a fine of $1,000.00. Motion for new trial was timely filed, overruled and this appeal followed.

Appellant alleges three points of error. He alleges the court erred in its refusal to sustain appellant’s motion to suppress evidence because appellant’s arrest was improper in being without warrant and that the officer’s entry was a trespass; the trial court erred and abused its discretion in permitting the playing of the taped telephone conversation before jury because the tape was inflammatory, repetitive and cumulative; the court erred in its refusal to submit appellant’s requested instruction relative to said tape; and finally, the court erred in not declaring a mistrial because of the alleged inflammatory remarks within the prosecutor’s closing argument.

Appellant does not question the sufficiency of the evidence.

On appellant’s first point of error, it must be noted the trial court afforded appellant a hearing upon his motion to suppress. The trial court concluded correctly when it overruled appellant’s motion. In the first instance, arrest by law enforcement officers is not always required to be by warrant. Rather, the question is premised upon whether a warrantless arrest was premised upon probable cause, Tyler v. Peterson, 315 F.Supp. 338 (E.D.Mo.1970); State v. Wiley, 522 S.W.2d 281 (Mo. banc 1975); State v. Gant, 490 S.W.2d 46 (Mo.1973); State v. Johnson, 463 S.W.2d 785 (Mo.1971); State v. Parker, 458 S.W.2d 241 (Mo.1970). That probable cause exists and that it must be reasonable, necessarily depends upon the facts of each case, State v. Seymour, 438 S.W.2d 161 (Mo.1969).

Appellant contends the facts herein do not support probable cause for arrest of appellant. On this point, the state responds by alleging appellant’s motion to suppress was misdirected since appellant was charged and convicted pursuant to § 557.-215, RSMo 1969 (striking a police officer in performance of his duties) and hence, as the state contends, the arrest of appellant need not be lawful. For purposes of this appeal, the question posed by the state is not taken up because the facts herein speak for themselves to render disposition of appellant’s first point. The state would have this court conclude the police had probable cause to arrest appellant once appellant had struck the police officer. This court concedes that the authority relied upon by the state, State v. Brothers, 445 S.W.2d 308 (Mo.1969); State v. Rodriguez, 484 S.W.2d 203 (Mo.1972) and State v. Bradley, 515 S.W.2d 826 (Mo.App.1974), while still valid law in our state, is employed by the state herein in a misdirected fashion and the question on appellant’s first point is better resolved in consideration of the evidence as to whether the arresting officers acted upon probable cause in effecting a warrantless arrest during which the offense for which appellant was convicted occurred.

The pertinent evidence, in summary, dispositive of appellant’s first point is that a phone call was received from the 6 year-old daughter of appellant claiming appellant was threatening harm to appellant’s wife. This was confirmed by appellant’s son. There was also evidence that appellant’s wife, over the phone, asked if a patrol car had been dispatched to the residence. Evidence further established a patrol car had been directed to appellant’s residence under advice that bodily harm had been threatened to persons at appellant’s residence.

Although the evidence was controverted as between appellant’s wife and the police officers, the evidence establishes the officers were, upon their arrival at the scene, acting with probable cause to believe a felony (assault) was in progress or had been committed at the residence of appellant.

The evidence clearly supports the action of the trial court that the warrantless arrest was based upon probable cause and there was no unlawful trespass by the police officers. Hence, denial of appellant’s motion to suppress was not error and point one is ruled against appellant.

On the second point of error, it must be pointed out that state’s witness Harris testified to the telephone conversation contained on the tape. A hearing outside the presence of the jury was held regarding the playing of the tape for the jury. The trial court, over objection, permitted the jury to hear the tape. The tape itself was never introduced into evidence. Appellant alleges the trial court erred in permitting the playing of the tape because it was inflammatory, repetitious and cumulative. The admission of evidence as to things relevant and material is within the discretion of the trial judge and this court cannot substitute its judgment on the question of admissibility, but may only review that question as to whether the trial judge abused his discretion. State v. Harlston, 565 S.W.2d 773 (Mo.App.1978).

The evidence fails to establish that the playing of the tape was inflammatory or that because it was played, it inflamed the jury against the appellant. That portion of appellant’s allegation has no merit. The court is left with the determination of whether the trial judge abused his discretion on the premise that the playing of the tape was cumulative and repetitious and if as a result, that appellant’s rights to a fair trial were prejudiced. The trial judge has the discretion relative to the admission of evidence and this includes cumulative evidence, State v. Wintjen, 522 S.W.2d 628 (Mo.App.1975); State v. Mitchell, 554 S.W.2d 581 (Mo.App.1977). This latitude, which is permitted the trial court, is premised upon the trial court’s authority to exercise its judgment as to the relevancy of such evidence and will not be disturbed on review unless abuse of that discretion is clearly shown by the evidence. While most of the cited authority on this point directs itself to photographic evidence, logic dictates the same basic principle is applicable to bona fide audio voice recordings.

The taped conversation questioned herein obviously was relevant to afford the jury with facts so the jury could determine whether or not the officers were engaged in the discharge of their lawful duties.

While appellant did not raise the question of the tape being hearsay on appeal, he nevertheless did object upon trial to the tape on that basis. In passing, it should be noted the playing of the tape did not violate the prohibition against hearsay because it was not admitted for its intrinsic truth, but as a relevant fact as to why the police officers went to appellant’s residence. The introduction of this evidence, for the reasons set forth, was a proper use thereof, State v. Trotter, 536 S.W.2d 877 (Mo.App.1976). On this point, appellant requested an instruction, which stated, “The Court instructs you that the tape recorded message is not in evidence in this case and you are not to consider it in your deliberations.”

The court refused to submit this instruction. The action by the trial court was correct on this instruction since the instruction, as drafted, would have incorrectly directed the jury on the question of the tape as part of the evidence. For the foregoing reasons, point II is ruled against appellant.

Appellant’s final point is directed to the remarks of the prosecutor in final argument. Reading of the record reveals in his rebuttal argument the prosecutor made the remark that, “It was not a question of overreaction, certainly not on the police officers’ part. What could they have overreacted to, a wife beater? Did they overreact to a wife beater?”

At this point, defense counsel objected and the court admonished the prosecutor and instructed the jury to disregard his statements. Appellants’s request for a mistrial was overruled.

In appellant’s argument upon this final point, he properly alleges that the remarks of the prosecutor relate to facts not in evidence, but upon his allegation that such remarks inflamed the jury to his prejudice, there is insufficient evidence to support his claim.

Review of argument of counsel is weighed upon whether upon ruling on the question at trial, the trial judge abused his discretion in the matter. Unless there was an abuse of discretion which resulted in prejudice to appellant, the court’s ruling will not be disturbed. State v. Frazier, 522 S.W.2d 46 (Mo.App.1975).

Upon the reading of the transcript herein, it is shown that the prosecutor made no reference to appellant as a wife beater in the first part of his closing argument. The record further reveals the defense argument was premised upon the overreaction by the police officers.

Careful reading of the transcript shows the prosecutor’s remarks, in his final argument, used such terms to rebut the inference of defense argument. The prosecutor was admonished properly by the court and the jury was instructed to disregard his remarks. There is no showing that appellant was denied a fair trial because such remarks were to that extent prejudiced. The court, within its discretion, correctly addressed the issue upon timely objection by appellant’s counsel.

Upon failure to show that the prosecutor’s remarks resulted in a prejudicial trial and that there was an abuse of discretion by the trial judge, point III is ruled against appellant.

For the reasons set forth herein, the verdict of the trial court is in all respects affirmed.

All concur.

      . Effective January 1, 1979, this section was repealed by the new criminal code and is now reassigned to § 565.060 by the disposition table.


text:
    Alice Blackburn HAYS, Appellant, v. Gerald GOLDBERG, Director Department of Revenue State of Missouri, Respondent.
    No. 30555.
    Missouri Court of Appeals, Western District.
    Sept. 4, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 1, 1979.
    Application to Transfer Denied Nov. 14, 1979.
    Andrew J. Gelbach, Warrensburg, for appellant.
    Thomas R. Williams, Pros. Atty., War-rensburg, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Appeal from trial court order denying and overruling appellant’s petition for review of an order revoking appellant’s privilege to operate a motor vehicle for refusal to take a chemical breathalyzer test.

Review of this case is made under Rule 73.01(d) and Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

On July 21,1978, appellant was operating her motor vehicle on Highway 13 in Caldwell County. After receiving reports of erratic driving by appellant, a highway trooper stopped appellant’s motor vehicle, observed appellant and smelled the odor of intoxicating beverages upon her breath. Upon questioning, appellant stated she had been drinking for about an hour to an hour and one-half before being arrested.

On or about August 12, 1978, appellant received, from respondent, a notice of revocation of the privilege to operate a motor vehicle in Missouri. Appellant then filed her petition for review of the revocation order and on October 30, 1978, a trial was held on said petition. The trial court denied appellant’s requested relief and this appeal followed.

Two points are raised on appeal. The first point alleges that the trial court erred in the court having found that appellant unequivocally refused to submit to a chemical (breathalyzer) test. The second point alleges that the law enforcement officer did not adequately advise appellant of the purpose of the test and the consequences of refusal.

It is obvious that no preset formula of verbal exchange can be patterned by the courts which could determine in every case whether there was a bona fide request and a bona fide explanation by the law enforcement officer of the consequences of refusal, followed by a clear cut agreement to take the test or a clear cut refusal to take the test. Each case and the facts pertaining thereto must be carefully considered.

As to the first point raised by appellant, the evidence herein does not support her contention. The record shows the following:

“Q. Tell us what, if anything, occurred after he stopped you?
A. Oh, uh, he, uh, asked me if I would take the breathalyzer test and at that time I said no.”

The record reflects appellant was placed under arrest and taken to the office of the Sheriff of Caldwell County. At this point, appellant contends the trooper again asked if she would take the test and contends her response amounted to an affirmative reply. The record does not support her contention, for it is found:

“A. [by appellant] “We waited for the Sheriff, and then we went back to Kingston. And when we went into the police station [Sheriff’s office] the officer asked me again if I would take the breathalyzer test, and I said yes, I would because — he would probably make me anyway, and he said no, I didn’t have to.”

Upon this same point, appellant’s 13 year-old son testified:

“A. Uh, he asked her if she wanted to take it and she said, ‘Yes, you would probably make me anyway.’ Then, he said, ‘No, you don’t have to take it,’ then she didn’t take it.”

The testimony of the trooper on this point was direct as to having offered the opportunity of the test twice to appellant and her double refusal. When questioned about appellant’s statement “. . . he would probably make me anyway and he said no, I didn’t have to”, the trooper testified he had no recollection of such a statement.

From the statement of appellant, which is the only evidence on this first point, it is not certain whether the alleged “no, I didn’t have to” passage refers to the officer advising appellant that the test is not mandatory or whether, as appellant would suggest, the trooper, by his statement, had abandoned all effort to secure a breathalyzer test. To follow appellant’s reasoning leads one down a paradoxical path, for on the one hand, appellant contends the trooper made a second request, and in the same verbal exchange, abandons any effort to secure a test. This contradictory evidence speaks for itself and when matched with the initial request and initial refusal, leads to the inescapable conclusion that appellant did, in fact, refuse to take the test. The refusal to take such a test need not be wholly unequivocal. Duncan v. Safety Responsibility Unit, Department of Revenue, 550 S.W.2d 619, 622 (Mo.App.1977).

The evidence herein supports a finding of a refusal to submit to a chemical breathalyzer test within § 564.444, RSMo 1969 and Duncan v. Safety Responsibility Unit, Department of Revenue, supra, and satisfies the rule prescribed by Murphy v. Carrón, supra.

The second point of error alleged by appellant again finds the court without any predesigned formula as to determine the sufficiency of whether the law enforcement officer informed appellant of the results of refusal so as to satisfy the requirements of § 564.444, RSMo 1969, and the evidence of the record must provide this answer. The pertinent portion of § 564.444, RSMo 1969 reads as follows:

“If a person under arrest refuses upon the request of the arresting officer to submit to a chemical test, which request shall include the reasons of the officer for requesting the person to submit to a test and which also shall inform the person that his license may be revoked upon his refusal to take the test, then none shall be given.”

In summary, appellant’s evidence included a flat denial that the trooper ever informed her that her license might be revoked upon refusal. Appellant testified she first learned of such possible results upon reading a driver’s manual subsequent to her arrest. Appellant stated, upon direct testimony, that the trooper never explained why he wanted appellant to take the test; but upon cross-examination, appellant answered, “Uh, he didn’t state, but I assumed that it was to test how much alcohol content, it is the only reason I could think of for taking one.”

The testimony of the trooper, on the other hand, directly referred to the possibility of license revocation upon appellant’s refusal to take the test. The trooper testified, upon direct examination and cross-examination, that he advised appellant of the possible and probable loss of her driving privileges upon her refusal to take the test.

The evidence upon this point, while conflicting, does nothing to further indicate that the ruling by the trial court would cause this case to be overturned under the scope of review mandated by Murphy v. CarrQn, supra. The trial judge could and did observe the demeanor of the witnesses and the evidence is substantial to support the finding of the trial court.

The evidence is clear in this case that appellant knew why the trooper requested the chemical test. It was because the trooper concluded that appellant was intoxicated. Appellant testified she concluded the test request was made to test the alcohol content of her blood.

Appellant was, by her own testimony, not oblivious to the circumstances surrounding the incident of her arrest and the later detention at the Sheriff’s office. That the arresting officer is required to inform the citizen that his license may be revoked is required by § 564.444, RSMo 1969. See also Bolling v. Schaffner, 488 S.W.2d 212 (Mo.App.1972) and In re Green, 511 S.W.2d 129 (Mo.App.1974).

The evidence herein is sufficient to support the trial court’s finding that appellant was advised of the results or consequences of her refusal in that her license or privilege to operate a motor vehicle in Missouri might be revoked as to satisfy § 564.444, RSMo 1969, Bolling v. Schaffner, supra and Murphy v. Carron, supra.

Point two is ruled against appellant.

For the reasons set forth herein, the judgment of the trial court is, in all respects, affirmed.

All concur.

      . § 564.444, RSMo 1969 has been reenacted as § 577.050, RSMo 1978.


author: SATZ, Judge.

text:
    STATE of Missouri, Respondent, v. Ronald Stanley KING, Appellant.
    No. 38356.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 4, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 15, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      Robert W. Meyers, Shaw, Howlett & Schwartz, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   SATZ, Judge.

Defendant was convicted by a jury of sodomy and assault to do great bodily harm without malice aforethought. In accord with the jury’s assessment of punishment, the trial court imposed a seven year sentence against defendant on the sodomy charge and imposed a four year sentence against him on the assault charge.

On appeal, defendant contends the trial court erred by: (1) denying his motion for judgment of acquittal at the close of all the evidence; (2) admitting proof of another crime into evidence; (3) failing to require the state to elect either the sodomy or assault charge for submission to the jury and instructing on both charges rather than instructing on one or the other of the two charges; and (4) failing to instruct on common assault, as a lesser and included offense of assault with intent to do great bodily harm without malice aforethought. For the following reasons, we affirm the judgment and sentence of the trial court.

Defendant first contends the trial court erred in denying his motion for judgment of acquittal at the close of all the evidence. To support this contention defendant argues the state’s evidence is insufficient to prove an intent to commit an assault to do great bodily harm without malice aforethought, because the assault, if any, was committed by his striking the prosecutrix with his fists.

To determine the sufficiency of the evidence on this issue, we review the evidence in the light most favorable to the state, accept all substantial evidence and all sensible inferences drawn therefrom which tend to support the verdict, and reject all contrary evidence and inferences. State v. Petrechko, 486 S.W.2d 217, 218 (Mo.1972); State v. Colthorp, 437 S.W.2d 75, 76 (Mo.1969).

So viewed, the evidence shows that the defendant, while driving a car in the City of St. Louis with a male passenger, stopped the car at Ninth and Soulard, and the pros-ecutrix approached the car, mistakenly believing defendant and his passenger to be friends of her children. Defendant’s passenger pulled the prosecutrix into the backseat of the car and, from that time until they were arrested in St. Charles County, defendant and his passenger took turns sodomizing the prosecutrix and, also, beating her for refusing to be a compliant victim. In sequential detail: defendant’s companion first sodomized the prosecutrix; defendant sodomized her; the companion struck her twice with his fists, then sodomized her; defendant sodomized her and struck her twice with his fists; and, just prior to the car being stopped by the St. Charles police, the companion again sodomized her and, at the same time, hit her repeatedly with his fists. When the car was stopped, the prose-cutrix was crying loudly, her clothes were disarrayed and blood covered her blouse and was splattered all over her face.

Obviously, these facts reflect no direct evidence of defendant’s intent. However, this is not unusual because intent is ordinarily inferred from other operative facts. Thus, the relevant circumstances surrounding the assault, State v. Chevlin, 284 S.W.2d 563, 566 (Mo.1955), the manner that the assault was committed, State v. Crossman, 464 S.W.2d 36, 41-42 (Mo.1971) and the nature and extent of the injuries inflicted, State v. Duncan, 499 S.W.2d 476, 478 (Mo.1973), are properly used to infer the intent with which an assault was made; and, when the relevant facts warrant it, an assault with intent to do great bodily harm may be committed by the use of fists. State v. Himmelmann, 399 S.W.2d 58, 60 (Mo.1966); State v. Gardner, 522 S.W.2d 323, 324 (Mo.App.1975).

In the present factual context, defendant’s use of his fists is sufficient to support the requisite intent of an assault with intent to do great bodily harm without malice. State v. Seemiller, 558 S.W.2d 212, 216 (Mo.App.1977).

Defendant next contends that evidence of his sodomizing the victim prior to the sodomy with which he was charged was proof of another offense and, thus, was improperly admitted into evidence. Defendant made this specific objection for the first time in his motion for a new trial. Thus, he failed to preserve this objection for appellate review, State v. Barron, 465 S.W.2d 523, 529 (Mo.1971), and his objection is cognizable only under the plain error doctrine. Rule 27.20(c).

The trial court did not commit plain error. To the contrary, it committed no error at all, because the evidence of the prior sodomy was admissible.

As a general rule, evidence of a crime other than the crime charged is inadmissible. See e. g., State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (1955). However, a well recognized exception makes evidence of other crimes admissible when that evidence “tend(s) to establish ... a common scheme or plan embracing the commission of separate similar offenses so interrelated to each other that proof of one tends to establish the other . . . ”.

See e. g., State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765, 768 (1953). Equally well recognized, in our state, is the parallel exception which permits proof of another crime, if the other crime is so linked together in point of time and circumstances with the crime charged that one cannot be fully shown without proving the other, e. g., State v. Shumate, 478 S.W.2d 328, 330-331 (Mo.1972), State v. Taylor, 320 Mo. 417, 8 S.W.2d 29, 35 (1928). Under this latter exception, the state is permitted to paint a complete and coherent picture of the crime charged and it is not required to sift and separate the evidence and exclude the testimony tending to prove the crime for which defendant is not on trial. State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877, 880 (1931); see State v. Torrence, 519 S.W.2d 360 (Mo.App.1975).

In the present case, either of these two exceptions would justify the admission of the first sodomy into evidence. However, for our purposes here, the latter exception is particularly apt. The evidence in this case clearly shows there was a single continuing transaction which began when the prosecutrix was dragged into defendant’s car and ended when the car was stopped. Defendant’s acts of sodomy were interrelated and inseparable facts of this single transaction. As stated in the Tor-rence case, supra: l.c. 361

“ . . .to require the State to segregate and exclude the various actions by defendant would create a hiatus in an obviously continuing transaction. Such a hiatus would impede the painting of a complete and coherent picture of this one transaction, and would leave a part of the transaction open to speculation and conjecture.”

Thus, the state was not required to segregate and choose between defendant’s acts of sodomy, and proof of his prior sodomy was properly admitted. State v. Shumate, supra, State v. Taylor, supra.

Defendant next contends, as couched in his language, that the trial court erred by not requiring the state to elect between the sodomy and assault charge for submission to the jury and by instructing on both of these charges rather than instructing on one or the other. Defendant rests his contention on former § 556.160 RSMo (1969), which provided:

“No person shall be convicted of an assault with intent to commit a crime, or of any other attempt to commit any offense, when it shall appear that the crime intended or the offense attempted was perpetrated by such person at the time of such assault or in pursuance of such attempt.”

Defendant misinterprets this statute and misapplies it to the present facts. The statute’s meaning is simple and commonplace. An attempt to commit an offense and an assault with intent to commit that offense are parts of the offense itself, and, since the whole of necessity includes all of its parts, it follows that a successful attempt to commit an offense or a successful assault with intent to commit that offense cannot possibly support two convictions — one for the part (attempt or assault) and the other for the whole (offense). According to former § 556.160 RSMo (1969), the charge and conviction should be for the offense itself if evidence of a consummated offense is clear, and a defendant cannot be convicted of an assault with intent to commit an offense or of an attempt to commit that offense if that offense has been completed. See, e. g., State v. Baker, 276 S.W.2d 131 (Mo.1955) and State v. Charles, 537 S.W.2d 855 (Mo.App.1976).

However, in the present case, the state was not obligated to view the evidence from the peculiar perspective urged by defendant and charge and try him according to his wishes. Rather, under Missouri’s separate offense rule, the state could properly charge and convict defendant of separate and independent offenses arising from the same transaction, see, State v. Treadway, 558 S.W.2d 646, 651 (Mo. banc 1977), and no extended dissertation is needed to show the offenses in question here— sodomy and assault to do great bodily harm — are indeed separate and independent offenses. See State v. Johnson, 549 S.W.2d 627, 631 (Mo.App.1971) and § 563.230 RSMo (1969) (sodomy); and see State v. Williams, 548 S.W.2d 227, 231-323 (Mo.App.1977) and § 559.190 RSMo (1969) (assault with intent to do great bodily harm). Since defendant was charged and convicted of two separate and independent offenses and was not charged and convicted, as the cited statute contemplated, with sodomy and an assault to commit sodomy or with an attempt to commit sodomy, his contention has no merit. State v. Seemiller, 558 S.W.2d 212, 216 (Mo.App.1977).

Defendant’s final contention is that the trial court committed plain error in failing to instruct on common assault, as a lesser and included offense of assault with intent to do great bodily harm without malice aforethought.

Of course, whether requested or not, the trial court was required to instruct the jury upon all questions of law necessary for their guidance in returning a verdict, § 546.070(4); Rule 26.02(6) and, since common assault is a lesser and included offense of an assault with intent to do great bodily harm without malice aforethought, State v. Hammond, 571 S.W.2d 114 (Mo. banc 1978), the trial court would have been required to instruct on common assault if the evidence warranted such an instruction. State v. Surgeon, 456 S.W.2d 293, 295 (Mo.1970).

However, on the present facts, we doubt that an instruction of common assault was required. Without restating the facts in detail, the evidence did show that defendant struck the prosecutrix with his fists after she had been sodomized by him and his companion and after his companion had hit her, with the degree of beating evidenced by blood splattered over her face and blouse. Taken in context, defendant’s striking the prosecutrix is most sensibly construed as an assault with intent to do great bodily harm rather than common assault. Moreover, according to defendant, he was not guilty of any offense. He denied that he hit the prosecutrix and explained her injuries as resulting from his automobile hitting a guard rail on a bridge. On this record, defendant was either guilty of the assault submitted to the jury or he was not guilty of any offense, and no instruction on common assault was required. State v. Washington, 357 S.W.2d 92, 94-95 (Mo.1962); State v. Howard, 564 S.W.2d 71, 76-77 (Mo.App.1978).

Furthermore, the plain error doctrine urged by defendant requires a showing of “manifest injustice or miscarriage of justice”, Rule 27.20(c), State v. Richards, 536 S.W.2d 779, 788 (Mo.App.1976). On the facts in this case, no manifest injustice or miscarriage of justice could have been caused by the failure to instruct on common assault, even if one assumes that such an instruction was required. See State v. Seemiller, supra, at 217.

The judgment is affirmed.

DOWD, P. J., and ALDEN A. STOCK-ARD, Special Judge, concur.

      . As defined, the two exceptions are separate and distinct and not necessarily coordinate. However, we do not decide here whether they are actually separate and distinct exceptions, see State v. Cox, 508 S.W.2d 716, 722-723 (Mo.App.1974), and compare State v. Davis, 540 S.W.2d 122, 123-124 (Mo.App.1976), which, in certain fact situations, may become intertwined and made coordinate, see State v. Seemiller, 558 S.W.2d 212, 215 (Mo.App.1977); State v. Torrence, 519 S.W.2d 360, 361 (Mo.App.1975), or whether the two exceptions are the same and the latter exception is merely a more refined and explicit statement of the former. See State v. Garrison, 342 Mo. 453, 116 S.W.2d 23, 24-25 (1938).

      . Prior to the repeal of § 556.160 RSMo (1969), its wisdom and need had continuously been questioned by our courts, because of the existence of former § 556.220 RSMo (1969) (see present § 556.041 and § 556.046) permitting convictions of “lower degrees” of offenses and former § 556.230 RSMo (1969) (see present § 556.046) permitting convictions of “lesser and included” offenses. See, e. g., State v. McDaris, 411 S.W.2d 126, 128 (Mo.1967); State v. Baker, 276 S.W.2d 131, 134 (Mo.1955). However, the courts found no reason to nullify or ignore § 556.160 RSMo (1969), see, e. g., State v. Lacey, 20 S.W. 238, 239 (Mo.1892) and continued to apply it. State v. McDaris, supra. At times, the statute’s meaning was stated to be "... unquestionably ... a modification of the common law in criminal cases that on an indictment for a major offense there may be a conviction for a minor, . provided, always, the minor is included in the major, and falls within the allegations of the indictment . . ”. State v. Scott, 172 Mo. 536, 72 S.W. 897, 899 (Mo.1903); State v. Bell, 194 Mo. 264, 91 S.W. 898 (Mo.1906). This explanation is more relevant to former § 556.220 and § 556.230 than to § 556.160, and § 556.160 is perhaps better explained as a reflection of the common law merger doctrine which, as the latter statute paraphrases, precludes a defendant from being convicted of an attempt to commit an offense or an assault with intent to commit an offense if that offense has been completed. See, Perkins, Criminal Law, Ch. 6, § 3 (1969).


author: KELLY, District Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Sebastian C. NICOLOSI, Defendant-Appellant.
    No. 39824.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 4, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 15, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      Lee, O’Hanlon & Brady, Walter L. Brady, Jr., St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, John R. Perkins, Brenda Engel, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Edward J. Rogers, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   KELLY, District Judge.

Sebastian C. Nicolosi was convicted in the Circuit Court of the City of St. Louis of two Counts of illegal possession of a Schedule II controlled substance, Hydromorphone and Marijuana, in excess of 35 grams, and one Count of illegal possession of a Schedule IV controlled substance, Diazepamethelyclo-rynole, and one Count of illegal sale of a Schedule II controlled substance, Hydro-morphone. He was also found to have been previously convicted of a felony and, pursuant to § 556.280 RSMo.1969, the trial court imposed punishment, sentencing the defendant to a term of ten years in the custody of the Missouri Department of Corrections on Count I of the Information, to a term of five years in the custody of the Missouri Department of Corrections on Counts II and III of the Information, said sentences to run concurrently with that imposed in Count I; and to a term of two years in the custody of the Missouri Department of Corrections on Count IV of the Information, said sentence to run consecutively with the sentences imposed in Counts I, II and III. Mr. Nicolosi took this appeal from the judgment aforesaid. We affirm.

On appeal three Points Relied On are presented. Appellant’s first Point Relied On is that the trial court erred when it did not honor the dismissal mandated by a nolle prosequi entered in the case by the Assistant Circuit Attorney; his second Point Relied On is that he was denied due process of law by reason of ineffective assistance of counsel; and his Third Point Relied On is that the trial court erred in failing to submit an instruction on circumstantial evidence.

The evidence shows that on March 17, 1977, seven members of the St. Louis Tactical Anti-Crime Team of the St. Louis Metropolitan Police Department went to the two-story, four-family residence where appellant resided. These police officers were armed with a search warrant for a search of appellant’s apartment. Shortly prior to going into the building the officers observed one Patrick Fleming enter the building and go to the second floor apartment occupied by the appellant. Officer Dower and several of the other police officers went to the landing midway between the first and second floors of the apartment building, and from this point of vantage Officer Dower overheard a conversation between Mr. Fleming and a second man whose voice was later identified to be that of the appellant. While this conversation was taking place Mr. Fleming was standing in the hallway in front of the partially open door to appellant’s apartment; appellant was standing inside the apartment. The conversation Officer Dower overheard was as follows:

Fleming: Benny, give me one.
Appellant: I thought you wanted three.
Fleming: I couldn’t get the money.
Appellant: Just a second.

Fleming said nothing else at this point and the appellant then said: “Give me the money.” Fleming passed some folded money to the appellant. The appellant was not seen to hand anything through the doorway to Mr. Fleming, but when Mr. Fleming started down the stairway he was taken into custody by the police officers. When he was placed under arrest, Mr. Fleming dropped a yellow pill to the ground from his right hand. When analyzed, it was determined that this yellow pill was hydromorphone, a Schedule II controlled substance.

Following the arrest of Mr. Fleming, Officer Dower and the other police officers entered appellant’s apartment and executed the search warrant in their possession. The officers found and seized a number of illegal controlled substances and drug paraphernalia in the apartment of the appellant. A vial containing twelve yellow pills, subsequently identified as hydromorphone, was found in appellant’s pants pocket.

At trial appellant admitted possession of the vial containing the twelve pills and explained that they belonged to his mother who was in the hospital and that he was going to bring them to her. He denied any knowledge of the remaining contraband and stated that the other drugs and drug paraphernalia found in his apartment were brought in from the outside by Officer Dower.

The facts relevant to the disposition of appellant’s First Point took place prior to voir dire examination of the jury on the opening day of trial when the assistant circuit attorney handling the prosecution of the case informed the trial court that Officer Dower, who had been endorsed on the Information as a witness for the prosecution, and one of the state’s key witnesses, might be unavailable to testify due to an emergency within his family and if it was not possible to contact Officer Dower during the course of the morning he, the Assistant Circuit Attorney, would request a continuance. The selection of the jury proceeded and after the jury was selected, but prior to its being sworn, the Assistant Circuit Attorney informed the trial court that he had been unable to contact Officer Dower, that he assumed the officer would be available the following morning, and requested that the jury not be sworn until that time. This request was denied, whereupon the Assistant Circuit Attorney announced that “the State will formally enter a memorandum of nolle pros at this time. For the record the State is entering a memorandum of nolle prosequi.” The trial court retorted: “Sit right down there, Mr. Rogers, and don’t give me any more trouble.” The clerk proceeded to swear the jury, and the cause was passed to the following morning for further proceedings.

The following morning the Assistant Circuit Attorney announced that Officer Dower was now present and available to give testimony and asked permission to rescind the motion of nolle prosequi orally made the previous evening. The trial court replied: “The motion wasn’t accepted, Mr. Rogers, and you will be permitted to rescind it or it will be stricken from the record.” The state then announced that it was ready to proceed and the trial progressed.

The appellant made no objection at trial to proceeding, but in his Motion for New Trial, he raised this Point as follows:

The Court erred when it did not honor the dismissal mandated by the Nolle Prosequi formally entered into the record by the Assistant Circuit Attorney, and it was a prejudicial error for the Court to go forward and permit the Assistant Circuit Attorney to adduce testimony for the reason that effectual termination of the prosecution was had when the Assistant Circuit Attorney informed the Court that the case was Nolle Prosequi.

The issue under this Point as stated by appellant in his brief is “whether an Assistant Circuit Attorney, without the consent of the trial Court, has the authority to enter a nolle prosequi; or whether the Court has such judicial power as to ignore and reject such a nolle prosequi formally entered into the record, and order the jury to be sworn and the trial to proceed.”

The state, in its brief, states that it does not dispute the fact that the Assistant Circuit Attorney entered a motion for nolle prosequi which was not accepted by the trial judge and concedes that once the prosecutor has entered his motion of nolle pros-equi the trial court no longer had jurisdiction to proceed in the case. The gut issue, the state contends, is whether, once the prosecutor has entered a nolle prosequi in a criminal case, he may request reinstatement of an information which he has nolle prossed and proceed to trial without the filing of a new information or indictment.

It is clearly the weight of authority in this state that the prosecutor has the sole discretion to enter a nolle prosequi in a criminal prosecution and the trial court in which the prosecution is pending may not interfere with the exercise of that discretion by refusing to permit the filing of said motion. State v. Hoopes, 534 S.W.2d 26, 34[4] (Mo. banc 1976); State v. Moody, 325 S.W.2d 21, 32[3] (Mo. banc 1959); State ex rel Dowd v. Nangle, 365 Mo. 134, 276 S.W.2d 135, 138[3] (banc 1955); State ex rel. Griffin v. Smith, 363 Mo. 1235, 258 S.W.2d 590, 593[6] (banc 1953); State v. Brooks, 551 S.W.2d 634, 647[13] (Mo.App.1977); State ex rel. Lodwick v. Gottey, 497 S.W.2d 873, 880[7] (Mo.App.1973).

In State ex rel. Griffin v. Smith, the court held that once the prosecutor enters a nolle prosequi in a criminal case the trial judge has no jurisdiction to proceed with the case — he has “lost jurisdiction of the criminal cause.” 258 S.W.2d 590, 595.

Despite this language in Griffin, there is authority that this loss of jurisdiction occasioned by the act of the prosecutor in entering a nolle pros does not deprive the trial court of its inherent power to set aside an unconditional nolle prosequi duly entered by the prosecuting attorney, reinstate the information during the term at which the order is made, issue an alias capias, and try the defendant on the original information. State v. Montgomery, 276 S.W.2d 166, 168[2] (Mo.1955); State v. Lonon, 331 Mo. 591, 56 S.W.2d 378, 381[3] (Mo.1932). Where, however, the nolle prossed information is not reinstated by the prosecuting attorney during the term of court in which the nolle prosequi was filed, the trial court has lost jurisdiction of the case and possesses no judicial power to reinstate the information and try the named defendant in the absence of a new indictment or information; this has been held so despite the existence of Rule 31.03. State v. Montgomery, 276 S.W.2d at 168[3].

At the time this nolle prosequi was entered in the Circuit Court of the City of St. Louis — September 12, 1977 — the terms of court commenced on the first Mondays in February, April, June and December and the second Monday in September. RSMo. 478.275. September 12, 1977, was the first day of the term. The following day, September 13, 1977, the nolle prosequi entered the previous day was “rescinded” and “stricken from the record” and the case proceeded to trial on the information filed on April 20, 1977.

Under the authority of the cases cited supra, we hold that the trial court did not err in setting aside the nolle prosequi, reinstating the information, and proceeding to trial thereon.

Appellant’s second Point Relied On is that he was ineffective in conducting his own defense by reason of his lack of technical legal knowledge. The state responds that he knowingly and intelligently waived his right to counsel after he had been advised of the danger and disadvantages of appearing pro se.

Missouri has long recognized the right of a defendant in a criminal prosecution to represent himself, a right based upon the Missouri Constitution, Article 1, Section 18(a), and Rule 29.01. Bibbs v. State, 542 S.W.2d 549, 550 (Mo.App.1976).

Whether an accused will be permitted to represent himself depends on whether he has knowingly and intelligently waived his right to counsel. Faretta v. California, 422 U.S. 806, 835[17], 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The record must demonstrate that his waiver was a knowing and intelligent one, and if it does not so demonstrate, then the presumption arises that it was not. State v. Quinn, 565 S.W.2d 665, 675 (Mo.App.1978). In making a determination whether an accused should be permitted to represent himself, the trial court should make him aware of the dangers and disadvantages of self-representation, inquire into his intellectual capacity to make an intelligent decision, and make the accused aware that, in spite of his efforts, he cannot afterwards claim inadequacy of representation. State v. Quinn, 565 S.W.2d 665, 676 (Appendix).

On April 26, 1977, a hearing was conducted on appellant’s competency to represent himself before the judge in Division No. 16 of the Circuit Court for Criminal Causes, and a transcript of those proceedings has been filed in this court. It would serve no purpose to set out verbatim the discussions which took place between the appellant and the court, during which the judge informed him that he thought he was foolish in wanting to defend himself inasmuch as he had no legal training. The appellant advised the court that he owned a tavern for almost twenty years and that he had defended himself before in the same kind of case when he made a determination that he was capable of representing himself and he won acquittal of that charge. A lengthy discussion of the dangers and disadvantages of self-representation was then undertaken by the court. The appellant stated that he was 54 years of age with a fourth grade education, could read and write, understood the English language, and was pretty well self-educated. He had been in the service in 1942 and had held a number of jobs since then. The range of punishment for each crime with which he stood charged was read to him and a discussion of the contents of the information followed. The legal effect of the Second Offender pleading in the information was explained to the defendant. He was advised that he might file pre-trial motions, including, among others, a motion to suppress any evidence seized, that he had available to him certain discovery tools, that he was entitled to a jury trial, and that the jury would be instructed that he was presumed innocent and the state had to prove his guilt beyond a reasonable doubt. He was also advised that if he did not testify the Assistant Circuit Attorney could not comment about that, and that he had the right to put on defense evidence. He then entered a plea of not guilty to each count of the information.

On September 12, 1977, when the cause came on for trial, the trial judge again inquired whether the appellant still desired to represent himself. He advised the appellant that he had had the court reporter read to him the proceedings which took place on April 26, 1977, he discussed the defenses which might be available to defendant, and explained the jury selection process and the necessity of preparing instructions which the appellant wanted given. The appellant stated that he had the funds to hire a lawyer, but he chose not to do so; he felt he was not guilty of anything so he didn’t feel he needed a lawyer.

From this record we conclude that the appellant knowingly and intelligently waived his right to counsel and we further hold that having elected to represent himself he cannot now complain that the quality of his own defense amounted to a denial of effective assistance of counsel. Faretta v. California, 422 U.S. 806, 835, n. 46, 95 S.Ct. 2525, 45 L.Ed.2d 562. We rule this Point against the appellant.

Appellant’s final Point Relied On, alleging error in failing to submit an instruction on circumstantial evidence, has not been preserved for review. Rule 84.-04(e) requires that an appellant raising as error the trial court’s failure to submit an instruction must set out in the argument portion of his brief the instruction which he alleges should have been given. This appellant has not done, and for that reason this Point is not subject to review by this court.

However, even had appellant complied with the requirements of Rule 84.04(e) in this respect, he failed at trial to request the submission of this instruction — MAI— CR 3.42— and where no request for such submission has been made failure of the trial court to submit the issue to the jury is not error. State v. Davis, 491 S.W.2d 549, 552[6] (Mo.1973); State v. Orr, 493 S.W.2d 374, 376[6] (Mo.App.1973).

The judgment is affirmed.

STEPHAN, P. J., and STEWART, J., concur.

      . Annot., 112 A.L.R. 386 (1938).

      . Rule 31.03: “The period of time so provided for the doing of any act or the taking of any proceeding under these Rules is not affected or limited by the expiration of a term of court during such period. The expiration of a term of court shall in no way affect the power of the court to do any act or take any proceeding which it is otherwise by law or by these Rules authorized to do or take in any case pending before the court.”