author: SIMEONE, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. William REYNOLDS, Defendant-Appellant.
    No. 36949.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 13, 1976.

      James C. Jones, III, Robert C. Babione and Christelle Adelman Adler, Asst. Public Defenders, St. Louis, for defendant-appellant.
    Brendan Ryan, Circuit Atty., and Thomas C. Muldoon, Asst. Circuit Atty., St. Louis, John C. Danforth, Atty. Gen., Preston Dean, Timothy J. Verhagen, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

Defendant-appellant, William Reynolds, was found guilty by a jury of burglary, second degree and sentenced by the circuit court of the City of St. Louis under the Second Offender Act to six years in the department of corrections. §§ 560.045, 556.280, RSMo 1969. He appeals. We affirm.

There is no need to detail all of the facts, since the appellant does not question the sufficiency of the evidence but raises only two points on this appeal. We shall only state those facts necessary for the disposition of the points raised. Appellant urges that the cause be reversed and remanded because the trial court erred (1) in commenting on his constitutional right to remain silent in front of the jury and (2) in granting the state leave to amend the information during trial.

The facts: On the evening of September 14, 1974, the assistant manager of the A & P Store at 2718 South Grand closed the store at about 10:00 p. m. He locked the front doors and checked the rear storage areas of the A & P building. About 1:15 a. m. on September 15, 1974, three individuals — John McCann, Wallace (Sonny) Alt and McCann’s younger brother — were driving east on Magnolia and were turning right onto Grand when McCann “heard a clicking sound like twisting metal” — “a sharp sound.” As he was passing directly at the side of the A & P store, he saw “two individuals crouched down low inside the back area, one with a metal bar in his hand and saw one push the door open.” The other occupant of the automobile, Mr. Alt, heard “[a] metal smack against metal.” He saw “three males going towards the first door and one putting his hand up and that was it . . . ” “One had his hand on a metal rack across the door.” After this, the young men traveled to Grand and Arsenal, a few blocks away, and called the police.

The police came. Officers Al Berberich and David Durney were two of the first to arrive. They proceeded to enter the front door; “the front door was ajar. You could see the bolt sticking out and the door was partially open.” As they approached the counters, they observed “subjects running down the aisle to the back.” “We saw him run to the rear . . . .” “ . There were two subjects hiding behind some boxes, back here (indicating) . . There was another man located in the corner of another area. One of the two men located in the rear of the store was the appellant. Appellant was arrested and subsequently charged with burglary, second degree.

During the trial, and when Officer Berbe-rich was on the stand, the following occurred:

“Q (By [Assistant circuit attorney]) This is when you took into custody a man by the name of Reynolds? A. Yes.
Q Do you see him in the courtroom? A Yes.
Q Will you point him out?
A Sitting right next to that lady.
Q Can you tell me, Officer, to the best of your recollection, how he was dressed that night?
A He had overalls on and all had gloves.
[Assistant public defender]: I object to that statement as being irrelevant as to anyone else involved in this.
THE DEFENDANT: She should object to the lie that was just told.
THE COURT: You should remain quiet, sir.
THE DEFENDANT: Are you going to permit him to sit up there and tell all these lies?
THE COURT: I suggest that you discuss matters with your lawyer.
THE DEFENDANT: I did not want to come to court with this attorney.
THE COURT: I am going to have to ask you to not speak aloud until it is your turn to speak. You keep still at this time.
THE COURT (To the witness) Your answer should refer only to the defendant.
[Assistant public defender]: I would ask that his reference to anyone else be stricken.
THE COURT: The last reference to clothing worn by anyone else will be stricken.
Q (By [Assistant circuit attorney]) The defendant was dressed how?
A Bib overalls and wearing gloves.
[Assistant public defender]: If the Court would not mind, I could not see where the subject was taken into custody.
A. Right in the rear of the store, the very southeast corner.
[Assistant public defender]: In that back area that sticks out?
A The east wall in the southeast corner.
THE DEFENDANT: He is lying again.
THE COURT: The Court has advised you, Mr. Reynolds, not to speak outloud during court proceedings.
THE DEFENDANT: You are telling me not to speak outloud and you are letting them tell lies.
THE COURT: You continue to take down anything the defendant says. The court will be in recess until tomorrow morning at nine o’clock.”

When Officer Berberich resumed his testimony after a recess, he identified appellant as one of the persons found in the store near the “produce room, storage room,” as did Officer Durney. Officer Berberich also described that near the check-out counter “[t]here were three plastic Glad bags, trash can bags, full of cigarettes.” Near the liquor cabinet the “. . . lock was pried open and broken away.” Officer Daniel Day, of the Evidence Technician Unit, who came to the scene, found and seized three padlocks “laying on the floor,” “a chisel lying on the ground” and a tire iron “in the front area, inside the front door.”

That evening, the manager was called to the store, and he also saw “three bags on the floor filled with cigarette cartons,” and the lock broken off the liquor security cage.

On the morning of the second day of trial, the circuit attorney moved for leave to file an amendment by interlineation to its information charging that the appellant was “acting with another.” Defense counsel objected on the ground that four witnesses had already testified (the assistant manager, Mr. McCann, Mr. Alt and the manager),

“. . . and those witnesses have been excused and the defense attorneys feels [sic] that this is a prejudicial amendment on behalf of the defendant because in changing the charge to read ‘acting with another’ the defendant is at this point unable to question those witnesses who have previously testified about the actions of those other persons, other than William Reynolds, who allegedly were involved in this offense. I think that deprives him to that extent of confronting the witnesses as to what they saw or heard in respect to the actions of the other persons involved.”

The court, however, overruled the objection and granted the state leave to file the amendment by interlineation.

The defendant did not testify upon advice of his attorney. Instructions were given, including an instruction that all persons who knowingly act together with a common purpose are guilty of an offense. Arguments were had and the jury retired. The jury found the appellant guilty.

After the motion for new trial was overruled, which did not include any objection to the comment by the court, and allocution given, the defendant was sentenced to six years in the department of corrections.

On this appeal, appellant contends that the trial court (1) committed plain error “. . . when, in the presence of the jury, it referred to the opportunity which defendant would later have to testify because such statement constituted a comment on defendant’s constitutional right to remain silent . .” and (2) erred “. . . in granting the State leave to file an amendment to its information midway through the trial . . . because such amendment caused prejudice to defendant’s case.”

As to his first point, appellant relies on Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); State v. Gray, 503 S.W.2d 457 (Mo.App.1973); State v. Barker, 399 S.W.2d 1 (Mo.1966); Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); and State v. Hutchinson, 458 S.W.2d 553 (Mo.banc 1970).

We consider the first point raised by appellant. Even though this issue was not preserved for review, we are convinced that there was no “plain error” and that there was not, under the proper legal test, an impermissible comment by the trial court on the appellant’s failure to testify.

It is, of course, now well settled that a “comment” on the failure of the accused to testify either by the trial court or the state violates the Fifth Amendment privilege against self-incrimination as applicable to the states. Griffin v. California, supra, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106;, State v. Jenkins, 516 S.W.2d 522 (Mo.App.1974). But under the tests laid down in this state, there is no constitutional or statutory violation of this principle unless there can be said to be a direct and certain reference to the failure of the accused to testify. State v. Hutchinson, supra, 458 S.W.2d at 555; State v. Jenkins, supra, 516 S.W.2d at 528. Critical to the issue of whether there is a prohibition against an impermissible comment are the words “defendant” or “accused” and “testify.” State v. McNeal, 517 S.W.2d 187, 188 (Mo.App.1974); State v. Shields, 391 S.W.2d 909, 912 (Mo.1965), cert. den., 382 U.S. 966, 86 S.Ct. 457, 15 L.Ed.2d 369; State v. Gray, supra, 503 S.W.2d at 462; see cases collected in State v. Baker, 439 S.W.2d 515, 516 (Mo.1969), and State v. Morgan, 444 S.W.2d 490, 493 (Mo.1969).

Under the circumstances of this case, we find (1) no plain error in this regard, see State v. Howard, No. 35,998 (Mo.App.St.L.Dist., November 18, 1975), and (2) that the remarks of the trial court did not, under the applicable tests, constitute an impermissible comment on the failure of the defendant to testify.

As in all other matters, this case must be decided on its own peculiar and unique facts. Throughout the trial, the appellant was dissatisfied with his court-appointed attorney, and perhaps with the trial court. Throughout the trial the appellant made certain remarks which led the trial court to consider the possibility of removing him from the courtroom or gagging him. See State of Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). At the point where Officer Berberich was testifying, the trial court made the comment, “I am going to have to ask you to not speak aloud until it is your turn to speak. . . ” This remark was not a direct and certain reference to the failure of the accused to testify, and hence did not violate the rights of the appellant.

State v. Gray, supra, is clearly distinguishable. There, the court directed a question to the defendant: “Will you be sworn, sir; are you going to testify?” The defendant replied in the negative. We held that this was an impermissible comment and came within the doctrine of “plain error.” Rule 27.20(c). Gray is not dispositive of this case. Here, there was no direct and certain reference to the failure to testify, and, in the context of the whole case, we cannot say that there was an impermissible comment nor “plain error.”

As to appellant’s second point, we cannot say that the court erred in permitting an amendment to the information on the second day of trial. The appellant concedes that an additional or different offense was not charged by the amendment but urges that there was prejudice to the defendant by reason of the amendment to the information. The general principle is that an amendment to the information is permissible as long as no additional or different offense is charged and there is no prejudice to the defendant by reason of the amendment. State v. Mallory, 336 S.W.2d 383, 385 (Mo.1960); § 545.290, Rule 24.02. Rule 24.02 provides that “[t]he court may permit an information to be amended or an information to be substituted for an indictment at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.”

We cannot conclude that any substantial rights of the defendant were infringed under the circumstances here. The witnesses who testified at the time the amendment was made were persons who testified as to the discovery of the offense and the physical surroundings. As to one witness at least, defense counsel brought out the fact that there were more individuals involved other than the defendant.

Furthermore, there is authority for allowing an amendment such as this during the trial. State v. West, 484 S.W.2d 191, 195 (Mo.1972).

We have read the entire transcript, the briefs and authorities relied upon by the parties, and we are convinced that, the points relied upon on this present appeal are without merit and that, based upon the points relied upon, there is no prejudicial error. We have further reviewed the authorities relied upon by the appellant and find them not to be controlling or disposi-tive of the issues presented on this appeal. We therefore affirm the judgment of conviction.

The judgment is affirmed.

KELLY and GUNN, JJ., concur.

      . At the beginning of the trial and after the court read MAI 1.02, and at different times during the trial, the appellant indicated his dissatisfaction with his counsel — the public defender. He desired to have paid counsel of his choice, but after lengthy colloquies the court overruled his oral and written requests to discharge counsel because the cause had been set before and appellant had several months to obtain other counsel. A certain epithet was made by appellant. Appellant during trial also moved to disqualify the court, which was also overruled.
      After the trial incident quoted above, and when Officer Berberich resumed the stand and identified the appellant as being in the store, wearing bib overalls and gloves, and as the witness was being excused, appellant again made a certain epithet directed to Officer Berberich. The court then discussed with both counsel the possibility of removing appellant from the courtroom or gagging him. Finally, at the suggestion of defense counsel, an investigator in the public defender’s office discussed “this problem with the defendant.” After that, no further remarks were made by the appellant.

      . Section 546.270, RSMo 1969, provides in part: “If the accused shall not avail himself or herself of his or her right to testify . . ., it shall not be construed to affect the innocence or guilt of the accused, . nor be referred to by any attorney in the case. . . . ” (Emphasis added.) See also Rule 26.08.

      . The Supreme Court of the United States in Chapman v. State of California, supra, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, refused to adopt an absolute rule which would require the automatic reversal for every violation of a federal constitutional right, such as a comment on the failure of the defendant to testify.


source: Caselaw Access Project

author: RENDLEN, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Larry Darnell LONG, Defendant-Appellant.
    No. 36735.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 20, 1976.

      James C. Jones, Asst. Public Defender, Joseph W. Warzycki, Public Defender, St. Louis, for defendant-appellant.
    Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   RENDLEN, Judge.

Larry Darnell Long appeals his conviction of robbery first degree by means of a dangerous and deadly weapon. Appellant was sentenced by the court to fifteen years imprisonment under the Second Offender Act, § 556.280 RSMo 1969, Y.A.M.S., and by this appeal presents two allegations of error: (1) “The trial court erroneously interrogated members of the jury panel on voir dire examination regarding particular verdicts rendered in their prior experience as jurors in criminal cases”; and (2) the trial court erroneously permitted testimony that two days after the robbery defendant was seen with Rodney Jones who at the time of trial was in the City Jail.

On October 27, 1973, at about 5:15 p. m., appellant entered the Olive Street Flagg Brothers Shoe Store and began examining the shoes on display. The manager, Johnny Jack, inquired if he could be of service but appellant advised “he was just looking right now.” A few moments later appellant approached Mr. Jack and assistant manager Rodney Jones, threatened them with a pistol, announced “this is a robbery,” then took Mr. Jack to a back room and bound him. Rodney Jones, apparently untied, remained in the front of the store and presently came to the back room, released Mr. Jack, then called the police. About $150 was taken.

During voir dire of the jury panel, the court inquired whether any had served on a criminal jury. Two veniremen responded affirmatively whereupon the court asked each about the verdicts rendered and was advised one ended with a hung jury and the other a verdict of not guilty. On defense counsel’s objection, this line of questioning was not pursued. Examination of the veniremen was completed, a jury selected and sworn, and after preliminary instructions were given, appellant moved for a mistrial based on his previous objection. The motion was denied and the trial proceeded.

As appellant concedes, the court has broad discretion in controlling the examination of prospective jurors. State v. Dethrow, 510 S.W.2d 207, 209[2] (Mo.App.1974); State v. Richards, 467 S.W.2d 33, 38[11] (Mo.1971). In State v. Clark, 509 S.W.2d 740, 742[2, 3] (Mo.App.1974), cited by appellant, it is stated: “An appellate court will not in[t]erfere with this discretionary control of voir dire examination unless there is a demonstrable manifest abuse of that discretion and probable prejudice to the complainant . . . (citing cases). The burden is upon appellant to demonstrate that the court abused its discretion.” In that case the trial court refused defense counsel permission to ask the question which appellant here complains was asked. Tested by the standard that “an abuse of discretion occurs ‘when a trial court’s ruling is . so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.’ State v. Edmonds, 468 S.W.2d 685, 688 (Mo.App.1971).” Clark, supra at 742[4]; the court found no abuse of discretion, rejecting out of hand the proposition that a juror who participates in rendering a guilty verdict is thereafter prejudiced against all defendants.

Similarly we reject appellant’s suggestion that knowing of prior verdicts might in some way influence the less experienced panel members, and we do not accept the notion that jurors are so incapable of independent thought they would be improperly influenced by the knowledge that fellow members of the panel had participated in a criminal case. Further, of the responding veniremen one participated in a hung jury and the other in a jury reaching a verdict of not guilty. There is no suggestion and we cannot perceive how inquiry as to these verdicts prejudiced the jury against appellant. The point is denied.

Appellant next claims error in admission of testimony placing him in the company of Rodney Jones (the assistant store manager of the robbed store) two days after the robbery and that Jones was in City Jail at the time of trial. In his brief appellant concedes the point was not included in his motion for a new trial and thus had not been preserved for review, Rule 27.20(a), V.A.M.R.; State v. Peterson, 518 S.W.2d 1, 3[2] (Mo.1974); State v. Henderson, 510 S.W.2d 813, 821[12] (Mo.App.1974), but seeks consideration of the point as plain error.

Appellant contends the testimony of State’s witness Pona that he saw Jones and defendant together two days after the robbery was irrelevant, citing State v. Walden, 490 S.W.2d 391, 393[1] (Mo.App.1973), for the proposition that evidence is relevant if it “ ‘tends to prove or disprove a fact in issue, or to corroborate evidence which is relevant and which bears on the principal issue.’ ” In this as in all criminal cases the State has the burden of proving defendant guilty beyond a reasonable doubt and all elements of the crime including identity of the accused must be shown. State v. Henderson, 510 S.W.2d 813, 821[9] (Mo.App.1974). Here, to justify the court’s ruling it could reasonably be argued the testimony of witness Pona tended to corroborate the identification testimony of witness Jack. Also defense counsel made no objection to later testimony of defense witness Cathy Causey linking appellant and Jones as good friends. However, it is not this testimony per se which appellant regards objectionable, rather he argues, this evidence coupled with testimony that Jones was at the time of trial incarcerated in the City Jail, brands appellant with guilt by association. In response the State argues that Jones, present at the time of the robbery, was a good friend of the appellant and if called to testify, would be expected to give evidence favorable to appellant, “possibly establishing his innocence.” The State further argues that in closing argument the prosecutor may comment on defendant’s failure to call a witness who would be expected to give favorable testimony and who is peculiarly available to that defendant, citing State v. Barron, 465 S.W.2d 523 (Mo.1971), concluding that “the prosecutor should be allowed to elicit such testimony . to show that the absent witness was available to the defendant for the purpose of presenting his testimony.” We do not agree for two reasons: First, on learning Jones was incarcerated in the City Jail appellant brought him to court under subpoena and then learned that Jones refused to testify; these facts vitiate the State’s argument. Second, evidence of Jones’ presence in the City Jail is at best only casually relevant or remotely connected to the issues, if at all. However, admission of irrelevant or immaterial evidence is seldom grounds for reversal absent a showing of prejudice to appellant. State v. Vernor, 522 S.W.2d 312, 315[1-3] (Mo.App.1975); State v. Parker, 476 S.W.2d 513, 515[1] (Mo.1972). While we are mindful that “error in admission of evidence should not be declared harmless unless it is so without question,” State v. Maxwell, 502 S.W.2d 382, 393[14, 15] (Mo.App.1973); State v. Degraffenreid, 477 S.W.2d 57, 64[14] (Mo.banc 1972), in this case where evidence of guilt was clear and convincing and the only possible prejudice was an inference of guilt by association, neither developed nor relied upon by the prosecution, we cannot declare admission of the testimony resulted in manifest injustice. The contention of plain error is denied.

Judgment affirmed.

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


author: GUNN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Louis RILEY, Defendant-Appellant.
    No. 36716.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 20, 1976.

      James C. Jones, St. Louis, for defendant-appellant.
    Preston Dean, Asst. Atty. Gen., Robert H. House, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Defendant-appellant was convicted of second degree burglary and sentenced under the Second Offender Act to six years imprisonment. On appeal defendant attacks: 1) the sufficiency of the evidence to support the guilty verdict, and 2) the trial court’s refusal to grant a new trial on the basis of newly discovered evidence. We find that there was sufficient evidence of defendant’s guilt and no error in refusing to grant the defendant a new trial.

Inasmuch as defendant challenges the sufficiency of the evidence, in reaching our decision on review we consider the facts in evidence and inferences reasonably to be drawn therefrom in the light most favorable to the State. State v. Thomas, 529 S.W.2d 379 (Mo.1975); State v. Colton, 529 S.W.2d 919 (Mo.App.1975).

“[T]he scope of our review extends only to a determination of whether there is sufficient substantial evidence to support the verdict. It is not our function or prerogative to weigh the evidence to determine whether the charge has been proven beyond a reasonable doubt; that is a function of the jury.” State v. Achter, 514 S.W.2d 825, 826 (Mo.App.1974).

The charge against defendant was for the second degree burglary of Frager Brothers Manufacturing Company, whose place of business was the fourth floor of a building at 1635 Washington Avenue, St. Louis. An officer of Frager Brothers testified that at approximately 5 p. m. on the evening of the burglary he had secured his company’s place of business by locking the elevators and doors leading to the fourth floor and by setting the burglary alarm system. At approximately 7:20 p. m. the burglary alarm system was activated, and two St. Louis police officers immediately responded, arriving at the Frager Brothers building within an estimated two or three minutes from the time of the call. Both officers testified that when they arrived they found the front door locked and that they went to the rear of the building. The rear door of the building opened, and defendant debouched. As soon as the defendant noticed the police, he slammed the door shut and fled inside the building toward the front door. The rear door was locked preventing the police from gaining entrance to the building by means of that door. One of the officers stayed at the rear door and the other raced to the front where he observed the defendant standing inside the building by the locked, front double glass doors. The defendant was bleeding profusely from a cut on his head, a substantial quantity of blood (described as a pool of blood) was on the floor, and the doors were smeared with blood. A desk calculator with plug-in adapters was at the defendant’s feet. Since the doors to the building were locked, an employee from the burglar alarm company was called to let the police in the locked building. The defendant was arrested inside the building by the front doors. The desk calculator, which was at the defendant’s feet, and a pocket calculator found near the rear door inside the building were determined to have been taken from the Frager Brothers’ fourth floor office. The locks to the freight elevator, allowing access to the fourth floor, were also broken.

One of the arresting officers testified that defendant, upon his arrest, had stated that he had been locked in the building and had hit his head trying to get out but that he had stolen nothing. Another police officer heard the defendant state that he had gone into the building to look for work, had become lost, laid down and fallen asleep, and when he awakened, the building was locked. A trail of blood led from the rear doors to the front doors where the defendant was arrested. There were only a few drops of blood on the floor by the rear door, and the amount of blood on the floor increased substantially in a trail toward the front of the building. When defendant was arrested by the front doors he was standing “in a pool of blood.” No blood was observed outside the building, and the police responding to the call had a full view of defendant’s face when he first emerged from inside the building at the rear door. At that time, defendant had no cuts or blood on his face.

Defendant chose to take the stand, and his testimony differed mightily from the testimony of the police. He testified that he had been in a knife fight earlier in the evening and that his face had been carved upon; that to escape his assailant, he had run through an open door in the Frager Brothers’ building and had hidden inside for several minutes; that he subsequently had been locked in the building and was there when the police arrived. Defendant denied having opened the rear door to the building or fleeing toward the front when the police saw him. He denied having fallen asleep in the building, denied having taken the calculators and could not recall making a statement to the police.

Defendant’s principal allegation of error is that the trial court erroneously overruled defendant’s motion for acquittal at the close of the case, arguing that the evidence was insufficient for a guilty verdict. Defendant particularly points to the fact that it would appear to be impossible for him to have broken the fourth floor elevator locks activating the burglary alarm, stolen the calculators and have gone to the first floor within a space of approximately two minutes — the time when the alarm was sounded until the time the police stated they responded to the alarm. But observing the previous admonition that we view the case in the light most favorable to the State, we find the evidence as set forth was sufficient to support the conviction.

Basically, the defendant relies on one of the general rules concerning circumstantial evidence cases: the facts and circumstances relied on by the State must not only be consistent with each other and with a hypothesis of guilt, but must also be inconsistent and irreconcilable with his innocence and must point so clearly and satisfactorily to his guilt so as to exclude every reasonable hypothesis of innocence. State v. Burks, 521 S.W.2d 11 (Mo.App.1975); State v. Cox, 508 S.W.2d 716 (Mo.App.1974). But it is also true that the circumstances need not demonstrate an absolute impossibility of innocence. State v. Maxie, 513 S.W.2d 338 (Mo.1974) cert. den. 420 U.S. 930, 95 S.Ct. 1132, 43 L.Ed.2d 402; State v. Phillips, 452 S.W.2d 187 (Mo.1970). The main thrust of defendant’s defensive foil is that the State has proven nothing more than defendant’s presence in the building, and, without more, such evidence will not justify his conviction. But there is here an accumulation of incriminating facts which creates more than a suspicion of guilt and which amply supports defendant’s conviction. See State v. Jackson, 519 S.W.2d 551 (Mo.App.1975).

Looking at the facts most favorable to the verdict, we find that the defendant was present at the scene within an extremely short time after the burglary alarm system was triggered. While mere presence alone, as defendant suggests, may be insufficient to establish guilt, it is a factor to be considered in determining guilt. State v. Burks, supra; State v. Burnley, 480 S.W.2d 881 (Mo.1972). Also, we have evidence of flight by the defendant when he emerged from the rear door of the building, saw the police and retreated. The reasonable inference is that the defendant attempted to flee, and we must disregard defendant’s testimony to the contrary. Flight is another factor to be considered in determining guilt. State v. Burnley, supra; State v. Barry, 501 S.W.2d 515 (Mo.App.1973). Added to the foregoing circumstances is defendant’s apparent possession of the desk calculator at the time of his arrest — it “was at his feet” when the police arrested him inside the building. We believe it is reasonable to infer that defendant was in possession of the calculator which had been taken from its proper place on the fourth floor of the building and found beside the defendant on the first floor. See State v. Bowman, 472 S.W.2d 355 (Mo.1971). The possession of stolen property is still another circumstance leading to an inference of guilt when considered with other circumstances. State v. Williams, 521 S.W.2d 29 (Mo.App.1975). A further circumstance which incriminates the defendant is the entire series of inconsistent statements emanating from him in explanation of his presence within a locked building. Defendant told the police that he had become locked in the building after he had walked in looking for a job, had fallen asleep and hit his head in his wanderings within the building, all of which he denied on the stand. He also denied having opened the rear door and appearing before the police. Truth of the knife fight episode is belied by the fact that when the police first saw the defendant he had no facial cuts, there was no blood outside the building, very little blood near the rear door inside the building but a substantial quantity of blood by the defendant near the front of the building when he was arrested. Thus, there was ample evidence whereby the jury could disbelieve that the defendant had cut his face prior to entering the building and that his running wound was incurred after he had entered the building. But even if the defendant’s statement to the police was apocryphal, his attempt to deceive the police is a further circumstance of guilt which the jury could consider. See State v. Smith, 521 S.W.2d 38 (Mo.App.1975). In any event, the jury was not bound by the defendant’s explanation of the circumstances which he made at trial and could disbelieve his testimony. State v. Benfield, 522 S.W.2d 830 (Mo.App.1975).

Defendant relies on cases where only one or two of the above circumstances existed and were found to be insufficient evidence of guilt. The cases upon which defendant places reliance are palpably distinguishable from this case where there was evidence or reasonable inference of presence at the scene at the time of the crime, flight, possession of recently stolen goods and a fulsome series of inconsistent statements by the defendant. Clearly, the evidence presented was sufficient to support the guilty verdict. See State v. Burnley, supra.

Although the defendant acknowledges that we must regard the evidence in the light most favorable to the State, he would have us examine each element separately and test it for credibility. We will not do this. The following language of State v. Mick, 506 S.W.2d 35, 40 (Mo.App.1974) supplies appropriate answer for defendant’s contention:

“In reality, defendant claims that he is entitled to test singly and standing alone each of the facts adduced by the classic test of consistency only with guilt. Such a procedure would destroy all but the most conclusive of the circumstantial cases. Any one of the facts viewed in the abstract might lend itself to innocent explanation. What is required, however, is for all of the facts viewed in their context being satisfactory to establish the guilt of the defendant and exclude all but a remote possibility of his innocence. These facts satisfy that test.”

We thus find that the trial court did not err in overruling defendant’s motion for acquittal.

We next consider defendant’s argument that the trial court should have sustained his motion for new trial on the basis of newly discovered evidence. The alleged “newly discovered evidence” which the defense cites on appeal is the testimony of two men: the janitor at the Frager Brothers building and the employee from the alarm system company who unlocked the door to permit entry for the arresting officer. The motion for new trial and defense brief make the unsupported assertion that the janitor would testify that there was access to the first floor of the building after normal closing hours the night of the burglary, since a truck was being loaded at the dock. Secondly, the defense asserts that the alarm system employee would testify that he had tried to gain access to the fourth floor shortly after unlocking the building and had found the door apparently locked from the inside.

The trial court has a large measure of discretion in deciding whether a new trial should be granted for newly discovered evidence, as it is not a particularly favored remedy. State v. Harper, 473 S.W.2d 419 (Mo. banc 1971); State v. Lee, 492 S.W.2d 28 (Mo.App.1973). The requirements for securing a new trial on the basis submitted are: 1) that the evidence has come to the knowledge of defendant since the trial; 2) that it was not owing to his want of due diligence that he did not discover it sooner; 3) that the evidence is so material that it would probably produce a different result on a new trial; and 4) that it is not cumulative only or merely for impeaching the credibility of the witness. State v. Harper, supra; Duncan v. State, 520 S.W.2d 123 (Mo.App.1975); State v. Lee, supra. And the burden is on the defense to show compliance with the above requirements. State v. Lee, supra. The unverified allegations by the defense “do not prove themselves, and they are not substantiated by the record.” State v. Stapleton, 368 S.W.2d 395, 398 (Mo.1963).

We find no abuse of the trial court’s discretion in failing to permit a new trial on the basis of newly discovered evidence as urged by the defendant. There is no substantiation that the evidence was not known or readily available to the defendant at the time of trial. Nor would such evidence have material effect upon the outcome of the trial, as, at most, it would merely be cumulative testimony or for impeachment purposes. The evidence of defendant’s active participation in the burglary of Frager Brothers was highly incriminating and presented a chasm of guilt too broad and deep to leap. The newly discovered evidence sought to be presented by the defendant would scarcely serve as an ame-liorant in opposition to the evidence of guilt.

The judgment is affirmed.

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

      . In State v. Bowman, supra, the possession of fruits and tools of a crime was inferred when items were found less than two feet from where the defendant was hiding.


author: BILLINGS, Chief Judge.

text:
    Harrison GIBSON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10165.
    Missouri Court of Appeals, Springfield District.
    April 21, 1976.
    Motion for Rehearing or Transfer to Supreme Court Denied May 10, 1976.
    Scott B. Tinsley, Springfield, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   BILLINGS, Chief Judge.

Appellant Harrison Gibson and Frank W. Maupin were convicted in Greene County of attempted second degree burglary. They appealed their convictions and their appeal is pending in this Court in Case No. 9992.

Prior to the filing of the trial transcript in No. 9992 the appellant filed a motion to vacate the judgment and sentence under Rule 27.26, V.A.M.R. Following an eviden-tiary hearing the trial court denied appellant relief and this appeal followed. The respondent has filed a motion to dismiss this appeal, citing Rule 27.26(b)(2), which is as follows:

“A motion to vacate, set aside or correct a sentence cannot be maintained white an appeal from the conviction and sentence is pending or during the time within which an appeal may be perfected.” (emphasis added)

As noted, appellant’s direct appeal is currently pending in this Court. Appellant’s motion to vacate discloses on its face he had an appeal pending at the time the motion was filed. The trial court would have been warranted in summarily dismissing the motion by reason of the provision of Rule 27.26 as above set forth.

Respondent’s motion is sustained and the appeal'is dismissed.

All concur.

      . Judgment of conviction was entered March 13, 1975. Notice of Appeal was filed March 20, 1975. Motion to vacate was filed August 27, 1975. Transcript was filed September 16, 1975, briefs have been filed, and the direct appeal is docketed for argument and submission at our June Term, 1976.


text:
    Frank W. MAUPIN, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10164.
    Missouri Court of Appeals, Springfield District.
    April 21, 1976.
    Motion for Rehearing or Transfer to Supreme Court Denied May 10, 1976.
    Scott B. Tinsley, Springfield, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   BILLINGS, Chief Judge.

Appellant Maupin has appealed from a denial of his Rule 27.26, V.A.M.R., motion to vacate judgment and sentence.

This appeal is a companion case to Gibson v. State, decided this date, and since the appellant has pending in this Court a direct appeal from the conviction he seeks to attack under Rule 27.26 he cannot invoke post-conviction remedies until his appeal is determined. Rule 27.26(b), (2).

For the reasons set forth in Gibson v. State, the state’s motion to dismiss this appeal is sustained and the appeal is dismissed.

All concur.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Randy Leon CRUM, Appellant.
    No. 10022.
    Missouri Court of Appeals, Springfield District.
    April 21, 1976.
    Motion for Rehearing or Transfer to Supreme Court Denied May 10, 1976.

      John C. Danforth, Atty. Gen., Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, for respondent.
    James C. Bullard, Kennett, for appellant.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   PER CURIAM.

Defendant appeals from a jury conviction for possession of more than 35 grams of marijuana for which he received a two-year sentence. Defendant’s motion to suppress evidence which he claimed was obtained by a search incident to an unlawful arrest violating his rights under Amendments IV and XIV of the Federal Constitution and Article I, § 15, of the State Constitution was denied. In order to determine whether that denial was error, we must examine the evidence in the light most favorable to the conviction.

At about 2:20 p. m. on October 2, 1974, Officer Byrd was driving south on Kennett Street in Kennett, Missouri; Officer Jackson was his passenger. They noticed defendant walking north on the east side of Kennett street. Because the officers “knew [defendant] personally” and just wanted to ask “how he was doing and everything”, they drove around the block turning back west onto Seventh where they stopped defendant. During the “idle conversation” which ensued, the officers saw bulges in the two breast pockets of defendant’s heavy grey workshirt. The flaps on the pockets were not buttoned, but nothing was “protruding out of the pocket[s]”. Jackson testified, “[I]t looked like he had a bag of marijuana inside his shirt pocket, and I could see the impressions of the marijuana coming through his shirt. To me that’s what I believed it to be, bagged in a normal bag”. Jackson’s surmise, which he communicated to Byrd after driving away from defendant, plus defendant’s reputation as a “known marijuana user” made the officers feel they had “reason to believe that Randy Crum had committed a crime”.

They circled the block again and stopped defendant in front of his destination, the Boykin residence. Byrd “hollered at him to come over to the car”, and defendant complied. Then Byrd “asked him what he had in his shirt pocket”. Defendant’s reply, “Cigarettes”, did not satisfy Byrd who next requested to see the cigarettes. Defendant^ answer, according to Byrd, was “ ‘No, I might get in trouble’ ”. Byrd testified defendant added as he ran into the Boykin house, “You’re not going to get me in here. I’m not going to jail”.

Jackson pursued defendant apprehending him inside the house. After placing defendant in the police car Jackson formally arrested him. Defendant then emptied his pockets.

Defendant contends that the second time the officers stopped him, they did so to obtain evidence from him and to arrest him although they had no probable cause to arrest; thus he was justified in resisting. We must determine whether his position is correct by answering several concomitant issues spawned by the “concrete factual context of [this] individual case.” Sibron v. New York, 392 U.S. 40, 59[15], 88 S.Ct. 1889, 1901, 20 L.Ed.2d 917 (1968).

The Fourth Amendment governs every official interference with a person’s liberty of movement. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Numerous cases have held that even though an individual is not physically restrained, he can be “seized” by a sufficient show of authority. Terry v. Ohio, supra at 21 n. 16, 88 S.Ct. 1868; United States v. Nicholas, 448 F.2d 622, 624[1] (8th Cir. 1971); Carpenter v. Sigler, 419 F.2d 169, 171[2] (8th Cir. 1969). Not every display of authority amounting to a seizure is necessarily an arrest, however. When a person is momentarily seized under suspicious circumstances not amounting to probable cause and questioned about his identity and actions, that is a mere accosting. State v. Jacks, 462 S.W.2d 744, 747[3] (Mo.1970); Schook v. United States, 337 F.2d 563, 566[5] (8th Cir. 1964). The detainee does not submit to arrest under § 544.180, RSMo 1969, when he responds to those limited inquiries. Yet an arrest can be completed the instant he obeys an oral command to “stop”, Jones v. Schaffner, 509 S.W.2d 72, 77[1] (Mo.1974); State v. Dunivan, 217 Mo.App. 548, 269 S.W. 415, 417[4] (1925), or to “stand up”, State v. Stokes, 387 S.W.2d 518, 522[7] (Mo.1965). Consequently we are inclined to find Byrd’s initial command during the second stop, “Come over to the car”, was as coercive as “stop” and “stand up” so that when the defendant obeyed, the arrest was completed.

But that determination is unnecessary for purposes of this appeal since we find Byrd definitely attempted to arrest defendant by posing the ensuing “pocket” questions. Our conclusions seems unavoidable in light of the Rhode Island Supreme Court’s analysis of analogous police inquiries found in State v. McWeeney, 100 R.I. 394, 216 A.2d 357 (1966).

[1]•••
At approximately 12:15 p. m. on the day of defendant’s arrest, officers James H. Dodd, Jr., and Joseph R. Gonslaves of the Providence Police Department’s C-squad went to a barroom in Providence, according to officer Dodd’s testimony, as a result of “numerous complaints that the defendant was accepting horse and number pool bets at that establishment.” The defendant had been employed there for some years as a bartender, but he was not on duty on the day in question. Officer Dodd testified that he did not know who made the complaints and there is no evidence in the record indicating that anyone knew the identity of the person or persons claimed to have made such complaints.
[2] Upon arriving at the bar the officers looked through the front window of the barroom and saw defendant sitting at a table with two men who were talking to him. The defendant had his head down writing on something with a pencil, but they were then unable to see what he was writing on because he had his left hand cupped around it. They then entered the bar. Officer Dodd testified that as he entered the front door, he went immediately toward the table at which defendant was seated; that as he opened the door, defendant looked up, recognized him, and removed a “bill” from the table on which he was writing; and that he placed the bill in his left trouser pocket and the pencil in his jacket pocket. Officer Dodd testified that after he entered the bar and before defendant picked up the bill, he “could see at that time it was a bill. What denomination, I couldn’t see. It was the bill he put in his left trouser pocket.”
Officer Dodd then asked defendant what he had put in his pockets and defendant replied “Nothing.” The officer then asked defendant to empty his left trouser pocket on the table, with which request defendant complied.
[7] The arrest took place when officer Dodd asked defendant to empty his pockets. At this point, in our opinion, the knowledge in the hands of the officers did not support a “man of reasonable caution in the belief” that defendant had committed a misdemeanor in his presence. See Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543. The arrest, being invalid, cannot be justified by the search made incidental to it. As the court said in Henry v. United States, supra, 361 U.S. at page 104, 80 S.Ct. at page 172: “To repeat, an arrest is not justified by what the subsequent search discloses. Under our system suspicion is not enough for an officer to lay hands on a citizen. It is better, so the Fourth Amendment teaches, that the guilty sometimes go free than that citizens be subject to easy arrest.”
[8, 9] The state’s contention that the evidence in question was not obtained by a search of defendant is without merit. Officer Dodd’s request that defendant empty his pockets was in effect an order which defendant could not very well refuse to obey. He was then under arrest — two officers of the law were physically there to enforce the request. 216 A.2d at 385-59[l, 2], 360-61[7, 8, 9] (emphasis added).

The officers’ conduct in McWeeney mirrors that of the officers in the present case. The defendant did not submit at the pocket-question stage as McWeeney did; but it is inescapable that the officers’ purpose in stopping defendant the second time was to obtain evidence from him and arrest him. Such a detention is unlawful absent probable cause for arrest beforehand. Davis v. Mississippi, 394 U.S. 721, 727[3], 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969).

So the next issue is: did the officers have probable cause to arrest defendant prior to making the second stop? There are myriad definitions of probable cause. But a recent Missouri ease citing Brinegar v. United States, 338 U.S. 160, 175[6], 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) provides, “the substance of all definitions of probable cause is a reasonable ground for belief of guilt.” State v. Dodson, 491 S.W.2d 334, 336[2] (Mo.banc 1973). Before the second stop the officers knew that the defendant, who had a “reputation for using marijuana practically at all times” according to Jackson, had bulging shirt pockets. We are not persuaded that Officer Jackson “could see the impressions [of marijuana] through the shirt pocket”. For all he knew at that time, he might have been viewing a pocket filled with sack tobacco. In view of the results of Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); United States v. Nicholas, 448 F.2d 622 (8th Cir. 1971); State v. Hall, 508 S.W.2d 200 (Mo.App.1974); and State v. Dunivan, 217 Mo.App. 548, 269 S.W. 415 (1925), “the objective facts were [not] such as to justify a prudent person in believing he had enough facts on which to base an arrest . . . ” United States v. Skinner, 412 F.2d 98, 102[5] (8th Cir. 1969).

Defendant’s flight in reaction to the unlawful interference is inapposite to whether probable cause existed prior to the detention. He had a right to resist. Kansas City v. Mathis, 409 S.W.2d 280 (Mo.App. 1966); Gascon v. Superior Court, County of Los Angeles, 169 Cal.App.2d 356, 337 P.2d 201 (1969); 5 Am.Jur.2d Arrest § 94, at 778 (1962).

Since the state cannot make out a case without the evidence which should have been suppressed, the judgment is reversed and the defendant is discharged. State v. Witherspoon, 460 S.W.2d 281, 289[3] (Mo.1970); Kansas City v. Butters, 507 S.W.2d 49, 55[9] (Mo.App.1974).

All concur.

      . At our request the shirt and packets of marijuana were filed with us. It is physically impossible to detect the impression of anything other than bulges when the containers of marijuana are placed in the shirt pockets.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Rex E. PECK, Defendant-Appellant.
    No. 10275.
    Missouri Court of Appeals, Springfield District.
    April 21, 1976.
    Motion for Rehearing or Transfer to Supreme Court Denied May 10, 1976.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Loren R. Honecker, Springfield, for defendant-appellant.
   BILLINGS, Chief Judge.

A Greene County jury found the defendant guilty of burglary in its verdict of November 14, 1975. No motion for new trial was filed within the 10-day period after the verdict and the trial court did not enter an order extending the time for filing such motion. Rule 27.20, V.A.M.R.

Thirty-nine days after the verdict the defendant filed “Motion for Judgment of Acquittal or In The Alternative For New Trial.” The motion was overruled the same day, December 23, 1975, and the defendant was granted allocution and sentence and judgment rendered.

On December 31, 1975, a notice of appeal by the defendant was filed with the Circuit Clerk of Greene County, but without the required docket fee. Defendant on January 21, 1976, filed a motion with the trial court requesting he be permitted to appeal as a poor person and his motion was sustained. The notice of appeal and a copy of the court’s order of January 21, 1976, was received in this Court on February 5, 1976.

The concluding sentence of Rule 81.04, V.A.M.R., states: “No notice of appeal shall be accepted and filed by the clerk of any trial court unless said docket fee is deposited therewith.” Without payment of the docket fee or an order of court waiving the same, there can be no valid filing of a notice of appeal. State v. Worl, 531 S.W.2d 294 (Mo.App.1975); Application of Holt, 518 S.W.2d 451 (Mo.App.1975).

The defendant had 10 days after judgment was entered on December 23, 1975, to timely file a valid notice of appeal. “This notice of appeal was not timely filed because the docket fee, without which the notice of appeal is ineffective, was not deposited with the circuit clerk within ten days after the (judgment] became final; therefore we do not have jurisdiction of the appeal.” State v. Brookshire, 400 S.W.2d 61 (Mo.1966).

The appeal is dismissed.

All concur.


author: HOGAN, Judge.

text:
    Roy J. PALLARDY and Seth Evans, Plaintiffs-Appellants, v. LINK’S LANDING, INC., Defendant-Respondent.
    No. 9761.
    Missouri Court of Appeals, Springfield District.
    April 22, 1976.
    John E. Burruss, Jr., Hendren & Andrae, Jefferson City, for plaintiffs-appellants.

      Charles E. McElyea, Ronald K. Carpenter, Phillips & McElyea Corp., Camdenton, for defendant-respondent.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   HOGAN, Judge.

Plaintiffs brought this action claiming that the sum of $11,989.30 remained due them under the terms of a contract pursuant to which plaintiffs performed architectural services for the defendant. Upon trial to the court plaintiffs had judgment in the amount of $2,192.50, plus interest in the sum of $401.15. Plaintiffs appeal, contending for various reasons that the award of damages was inadequate.

In briefest sketch and outline, the background facts are that on June 30, 1969, James Muff, then vice president of Link’s Landing, Inc., contacted plaintiff Roy Pal-lardy, an architect, concerning proposed improvement and expansion of defendant’s docking and parking facilities. The improvements included substantial excavation, the construction of retaining walls, the addition of a parking structure and paving. Pallardy proceeded to prepare estimates and a preliminary sketch of the proposed site improvements, and submitted these to Muff in August 1969; there was considerable disagreement about the possible cost of the project. Pallardy originally estimated $363,140 as the total cost of the improvements; Muff, using estimates obtained from local (Camden County) contractors, insisted that the project could be completed for $259,200. On trial Muff indicated that a $250,000 maximum was a prerequisite to his undertaking the venture. Plaintiffs denied that any limit was placed upon construction costs, but admit they were aware Muff undertook the project in the belief it could be completed for approximately $259,-000.

On August 15,1969, Muff signed a “letter of intent” which Pallardy had written and sent forward for approval. As material here, the letter reads (emphasis is ours):

“First, the fee for the entire project will be 6% of the cost of project, for full services. This includes preliminary design and estimates of cost, production of construction drawings and specification [sic], obtaining of bids from Contractors if desired, and preparation of construction contracts, and finally, casual supervision of construction . . . checking contractor’s monthly estimates for payment . . . and final inspection of the project for Owner’s acceptance. The fee is divided as follows: On approval of preliminary design, with instructions from the Owner to proceed with construction drawings, 25% of the fee is due. Preparation of construction drawings and specifications shall comprise 50% of the fee, this amount payable monthly in proportion to completion of the work and due fully at the time of requesting bids or granting contracts. The final 25% of the fee is payable monthly during the construction phase, in proportion to contractor’s completion of the project. In the event the services of the Architect are no longer desired by the Owner during the construction phase, the basic fee shall be reduced by 25%, to 4½% of the project cost. In this event, the Architect will require a release of responsibility for the project, inasmuch as he will no longer have control of the construction. Fee payments will be based on the estimated cost until such time as contracts are signed and project cost is actually determined, and shall be adjusted to actual contract amounts.
* * * * * *
“We will break our cost estimates down by various parts of the work, so that you may decide to do all or part of the work, or plan it in stages. We will base the parking structure cost on one or several multiples of a basic unit.”

Muff signed this letter, and on August 24,1969, requested Pallardy to prepare contracts for the excavation. On September 18 Muff instructed plaintiffs to complete the preliminary drawings, “bill him for the drawings and hold up.” The project was held in abeyance until April 1970 when Muff requested an artist’s rendering for use in obtaining a loan. The artist’s rendering was supplied and Muff obtained a loan, $250,000 of which was set aside for the planned site improvements. In August 1970, after receiving preliminary designs, Muff instructed Pallardy to proceed with the project.

Controversy arose after the excavation work had been begun. On November 9 and 10 plaintiffs’ designs and specifications for the retaining walls were taken to contractors for bids. The lowest bid obtained was $150,800; plaintiffs’ estimate had been $50,-640, and defendant rejected plaintiffs’ design. Depending on whose viewpoint one accepts, this disparity was a) caused by plaintiffs’ failure to ascertain the condition of the subsoil and design the type of wall required, or was b) the result of Muff’s desire to complete the project as quickly as possible, which required the plaintiffs -to anticipate “the worst conditions for subsurface materials.” One of the walls was redesigned and constructed at a total cost of $54,000. The other wall was not built.

By December 17 plaintiffs had completed drawings and specifications for the parking structure. These were mailed to a contractor, and computation of the amounts of rock and concrete required indicated that the parking structure would cost $191,000 as compared with plaintiffs’ estimated $120,000. Muff complained to Pallardy, who suggested that bids be obtained before the design was changed. Muff said “to hell with that” and discharged Pallardy’s firm. Thereafter plaintiffs requested payment of 1) full fees based on contract prices for the excavation and for construction of one retaining wall; 2) 75% of the fee for one retaining wall (designed but not constructed, based on the estimated cost); 3) 75% of the fee for the parking structure (designed but not constructed, based on the estimated cost); 4) 25% of the fee for paving (based on preliminary work and estimated cost); and 5) sundry expenses, altogether amounting to $15,736.80, with credit allowed for prior payments of $3,747.50. Muff declined to remit this amount and this action followed. After hearing evidence, the trial court made voluntary findings and entered judgment as follows:

“(1) [T]hat Plaintiffs and Defendants [sic] entered into a contract on August 15, 1969, whereby Plaintiffs agreed to provide architectural services for Defendant, and Defendant agreed to compensate Plaintiffs therefor pursuant to the terms of said contract; (2) that the terms of said contract, inter alia, vested Defendant with the right to do, as the project, ‘part or all of the work’ upon which Plaintiffs were to provide architectural services; (3) that Plaintiffs’ compensation for the project, if it progressed beyond feasibility study phase, was to be six (6%) per cent of the cost of the project; (4) that the project . . . consisted of excavation of construction site and construction of one (1) retaining wall at cost of $45,000.00 and $54,000.00 respectively; (5) that the fee to which Plaintiffs are entitled for said project is $5,940.00; (6) that Plaintiffs have heretofore received payments applicable to said fee totaling $3,747.50; (7) that Defendant owes Plaintiffs a balance thereon in the amount of $2,192.50; (8) that Plaintiffs made demand upon Defendant for payment of sum owed for the aforesaid services on February 27, 1971.
“Judgment for Plaintiffs and against Defendant in the sum of $2,192.50 principal, together with $401.15 accrued interest thereon, for a total of $2,593.65. Costs taxed to Defendant.”

In this court the parties have briefed and argued several specific assignments of error; their points are correlated with and based wholly upon their differing interpretations of the “letter of intent” and the trial court’s findings. Plaintiffs insist there is nothing in the “contract” (the “letter of intent”) which may be reasonably interpreted as limiting their compensation in the event their plans and specifications were not used. Plaintiffs speculate as to the meaning of the trial court’s finding No. 2, suggesting that the trial court concluded either a) that if plaintiffs’ designs were not used, defendant was under no obligation to pay, or b) that the court concluded, as defendant suggests, that defendant imposed a maximum cost limit which the plaintiffs failed to observe. In either case, plaintiffs say, the trial court’s conclusion is erroneous. Defendant rejoins by saying that finding No. 2 amounted to a finding that the contract was divisible, and plaintiffs were only entitled to compensation for those parts of the total project which were completed through the use of plaintiffs’ designs. Alternatively, defendant maintains that a maximum construction cost was set for the project and plaintiffs failed to work within the limiting cost range. Both parties have cited authority in support of their respective positions; each urges that careful scrutiny of the remarkably diffuse record (which consists of the record testimony, the parties’ trial briefs, and 38 loose exhibits, including 80 pages of technical engineering drawings) would disclose the soundness of his position.

The difficulty with the parties’ approach in this court, particularly the plaintiffs’ complaints, is that the findings they attack were made voluntarily without request by either party. Findings made without request are in the nature of voluntary statements by the court, are not reviewable, and present no question for review other than as a general finding. Conley v. Crown Coach Co., 348 Mo. 1243, 1251, 159 S.W.2d 281, 285[8] (1942); Swetnam v. U. S. By-Products Corp., 510 S.W.2d 829, 830[1] (Mo. App.1974). We might speculate about the trial court’s findings, as the parties have, but we do not really know the precise basis for its decision, the judgment is presumptively correct, and the plaintiffs have the burden of demonstrating that the judgment is erroneous. Massman Construction Co. v. Kansas City, 487 S.W.2d 470, 478[6] (Mo.1972); Weston v. Great Central Ins. Co., 514 S.W.2d 17, 21[1-3] (Mo.App.1974).

We do not believe that burden has been met. Assuming, as the plaintiffs do, that the “letter of intent” constituted the parties’ contract — a proposition we accept with considerable reserve — it does not follow that plaintiffs are entitled to all the compensation they claim. Considerable effort has been expended by the parties in arguing the meaning or proper construction of the sentence (in the letter): “We will break our cost estimates down by various parts of the work, so that you may decide to do all or part of the work . . .” Plaintiffs assert that this language has nothing whatever to do with, and in no way limits, defendant’s obligation to pay them for their work. Defendant, couching its argument in terms of “severability”, maintains this provision gives it the option to do as much or as little as it chooses, which in legal effect is an argument that the contract is “unilateral” and lacks mutuality of obligation. We think it is arguable that the quoted language, following as it does a description of the services plaintiffs proposed to perform, operates as a modification and pro tanto nullification of the duties and obligations spelled out in the first quoted paragraph of the letter. See 3 A. Corbin, Contracts § 547, at 176 (1960). If so, plaintiffs would be entitled to compensation for their services up to the time the defendant exercised its right to terminate the contract, and the quantum of performance would be a matter of fact. Jensen v. Estate of McCall, 426 S.W.2d 52, 57[7] (Mo.1968); Roberts v. Harmount Tie and Lumber Co., 264 S.W. 448, 449[1] (Mo.App.1924). Without detailing all the conflicting evidence, we believe the trial court's award of damages is supportable as an allowance of compensation for services performed up to the time defendant exercised its right to terminate the contract in December 1970.

Nevertheless, we do not base our decision to affirm the judgment on such grounds. Whatever may have been the parties’ original agreement, it was competent for them, before any breach of its provisions, to waive, dissolve or abandon that contract and substitute a new oral contract by conduct and intimation, as well as by express words. Again, without reeit-ing all the conflicting evidence in wearisome detail, it is apparent from a reading of the whole record that plaintiffs’ performance did not follow the discrete and distinctive steps to which the “letter of intent” looks; rather, almost from the outset, plaintiffs actually undertook to design, contract for and supervise construction of the project as a whole, whatever they may now say their obligation was. And, in our view, it is indisputable that defendant breached the contract by repudiation when Muff told Pallardy “the hell with it”, and advised him that defendant would proceed no further. What plaintiffs were entitled to recover was the contract price, based to the extent possible on the actual cost of construction, less the amount it would have cost them to complete performance of their contract. Sides v. Contemporary Homes, 311 S.W.2d 117, 120-121[5-7] [8] (Mo.App.1958); Schwalbe v. Postle, 73 Colo. 181, 214 P. 388, 389[2] (1923); Johnson & Burns, Inc. v. Hayden, 98 Conn. 185, 119 A. 50, 52[5] (1922); Gould v. McCormick, 75 Wash. 61, 134 P. 676, 679[3] (1913); C. McCormick, Damages § 142, at 585-586 (1935). The actual cost of construction is shown by the record, but there is no proof of the cost of plaintiffs’ performance. Having failed to prove their damages, plaintiffs are in no position to complain of the trial court’s award, and the judgment of the trial court is affirmed.

All concur.

      . Smith v. Githens, 271 S.W.2d 374, 380[19] (Mo.App.1954); Opdyke & Butler v. Silver, 111 Cal.App.2d 912, 245 P.2d 306, 308-309 (1952); 6 A. Corbin, Contracts § 1294 (1962); 6 S. Williston, Contracts § 1828 (rev. ed. 1938). There is no contention that the contract here involved is a contract under seal, nor does it appear that the Statute of Frauds, § 432.010, RSMo 1969, V.A.M.S., applies to prevent recovery.

      . See Lawton v. Roseno, 125 App.Div. 628, 110 N.Y.S. 14, 15 (1908); 6 C.J.S. Architects § 36, p. 504 (1975).


text:
    STATE of Missouri, Respondent, v. Eddie SNIDER, Appellant.
    No. 10254.
    Missouri Court of Appeals, Springfield District.
    April 23, 1976.
    Motion for Rehearing or Transfer to Supreme Court Denied May 11, 1976.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Fred McDaris, Springfield, for appellant.
   PER CURIAM.

Defendant Eddie Snider was sentenced to five years imprisonment by the Circuit Court of Greene County following his plea of guilty to selling marijuana.

Three days after his plea was accepted and sentence imposed and judgment entered, defendant filed a notice of appeal to the “Circuit Court of Appeals.”

The notice of appeal filed is fatally defective and does not vest us with jurisdiction. Rule 81.08(a).

Appeal dismissed.


text:
    Charles Ray KELLICK, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10163.
    Missouri Court of Appeals, Springfield District.
    April 23, 1976.
    Ted M. Henson, Jr., Scott & Henson, Poplar Bluff, for movant-appellant.
    John C. Danforth, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Appellant Charles Ray Kellick lodged this appeal from a denial of his Rule 27.26 motion to vacate sentences he is serving for burglary and stealing. We affirm.

Appellant’s single point is that the Circuit Court of Wayne County erred in not conducting an evidentiary hearing. The point does not state wherein and why the action of the trial court was error [Rule 84.04(d), V.A.M.R.], and we are not required to look to the argument portion of his brief to ascertain these matters. Barber v. M.F.A. Milling, 536 S.W.2d 208 (Mo.App.1976), and cases cited therein.

Aside from the foregoing, we have examined appellant’s motion and the trial court’s findings and conclusions in denying the motion without conducting an eviden-tiary hearing. Alleged trial errors and con-clusionary allegations in a post-conviction motion do not require an evidentiary hearing and it was not error for the trial court to deny appellant’s motion without an evi-dentiary hearing. Smith v. State, 513 S.W.2d 407 (Mo. banc 1974) cert. denied 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975); Perryman v. State, 506 S.W.2d 480 (Mo.App.1974).

Judgment affirmed.

All concur.

      . We affirmed the conviction in appellant’s (Mo.App.1975). rect appeal in State v. Kellick, 521 S.W.2d 166


text:
    STATE of Missouri, Respondent, v. Robert G. KEENEY, Appellant.
    No. 10251.
    Missouri Court of Appeals, Springfield District.
    April 23, 1976.
    Motion for Rehearing or Transfer to Supreme Court Denied May 11, 1976.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Don M. Henry, Henry, Henry & Henry, West Plains, for appellant.
   BILLINGS, Chief Judge.

Appellant Robert G. Keeney prosecutes this appeal from his conviction in Oregon County of second degree murder.

The jury verdict was returned November 7, 1975. Appellant was granted 30 days to file his motion for new trial. Motion for new trial was timely filed and thereafter on December 26, 1975, the motion was overruled. Allocution, sentence and judgment followed on December 26, 1975.

Appellant’s notice of appeal was lodged in the Circuit Clerk’s office on January 3, 1976, but it was unaccompanied by payment of the required docket fee or a waiver thereof. On January 16, 1976, twenty days after judgment, appellant was granted leave to appeal as a poor person.

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

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

Rule 81.04 also requires the payment of a docket fee at the time of filing of a notice of appeal and forbids acceptance by the clerk of the notice of appeal unless the docket fee is deposited therewith.

“Without payment of the docket fee or an order of court waiving the same, there can be no valid filing of a notice of appeal. State v. Worl, 531 S.W.2d 294 (Mo.App.1975); Application of Holt, 518 S.W.2d 451 (Mo.App.1975).” State v. Peck, 536 S.W.2d 511 (Mo.App.1976).

The notice of appeal not being timely filed, we have no jurisdiction. State v. Brookshire, 400 S.W.2d 61 (Mo.1966).

Appeal dismissed.

All concur.

HOGAN, J., not participating.


text:
    In the Interest of P. J. M., a minor child.
    No. 10341.
    Missouri Court of Appeals, Springfield District.
    April 23, 1976.
    Motion for Rehearing or To Transfer to Supreme Court was Denied May 11, 1976.
    Don M. Henry, Henry, Henry & Henry, West Plains, for appellant.
   PER CURIAM.

The mother of P. J. M. appealed from a judgment of the Juvenile Division of the Circuit Court of Howell County determining the child was neglected and refused proper support, medical and other care [§ 211.031(l)(a), RSMo 1969]. The judgment made the child a ward of the court and committed him to the custody of the Howell County Division of Family Services.

The judgment was entered December 29, 1975. § 211.261, RSMo 1969, governing appeals from a final judgment or order under the Juvenile Code, requires notice of appeal to be filed “within thirty days after the final judgment.”

The notice of appeal herein was filed April 5, 1976, in the office of the Circuit Clerk of Howell County, 98 days after entry of the judgment.

“[T]imely filing of a notice of appeal is the vital step for perfecting an appeal and is an essential prerequisite to appellate jurisdiction . . . .” In Interest of R_, 362 S.W.2d 642, 644 (Mo.App.1962).

We do not have jurisdiction and the appeal is dismissed.

All concur.

      . Rule 120.01, V.A.M.R., adopted December 9, 1975, and effective August 1, 1976, requires the notice of appeal to be filed within 30 days after the final judgment.


text:
    STATE of Missouri, Respondent, v. Elmer Gene BLANKENSHIP, Appellant.
    No. 9984.
    Missouri Court of Appeals, Springfield District.
    April 23, 1976.
    Motion for Rehearing or to Transfer to Supreme Court Denied May 11, 1976.

      John C. Danforth, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Paul McGhee, James E. McGhee, McGhee & McGhee, Dexter, for appellant.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Defendant Elmer Gene Blankenship was found guilty by a Wayne County jury of stealing a hog and his punishment was fixed at three years imprisonment. In this appeal he assigns as error two instances of prosecutorial misconduct in argument, the court’s failure to substitute a juror, the composition of the jury panel and the use of his confession in evidence. We affirm.

We have examined the argument portion of the transcript and find no error calling for reversal. The defendant’s objection to what he considered an implication by the prosecutor that the latter knew facts outside the record pointing to the defendant’s guilt was sustained by the trial court. Defendant requested no further relief and thus has not preserved the matter for our review. State v. Bibee, 496 S.W.2d 305 (Mo.App.1973). It was not an abuse of discretion for the trial court to fail to declare a mistrial of its own motion because it is clear to us that the prosecutor’s remarks were retaliatory in nature to the argument of defendant attacking the credibility and veracity of the arresting officer. The extent of such retaliation is largely within the discretion of the trial court [State v. Cusumano, 372 S.W.2d 860 (Mo.1963)].

Defendant’s second attack on the state’s argument does not square with the objection he made at the trial. There, he objected to that portion of the argument wherein the prosecutor stated that if the jury fixed defendant’s punishment at six months in the county jail or two years in the penitentiary, the defendant would be out on the street “laughing at all of us” in three months or seven months. Defendant’s objection was there was no evidence he would be laughing at anyone. This objection, overruled, was not carried forward in defendant’s motion for new trial. In this appeal he now contends the remark improperly referred to parole.

An assignment of error in a motion for new trial and in the appellate court must be based upon an objection made at the time of trial. State v. Jones, 515 S.W.2d 504 (Mo.1974); State v. Lang, 515 S.W.2d 507 [Mo.1974]. Specific objections are required to evidence, arguments or statements of counsel, and the objection must call the attention of the court to the ground or reason for the objection.

The defendant complains the court erred in failing to grant his request that juror Stephens be stricken as a member of the jury and replaced by another member of the panel. The defendant concedes that he did not challenge this juror for cause or by way of peremptory challenge on the official jury list.

On voir dire of the panel it was developed that Stephens was a neighbor of the victim and had discussed the theft of the hog with him. However, Stephens denied he had formed an opinion or that his acquaintance with the victim would influence his judgment. No challenge for cause was made by the defendant. Stephens was not struck by either side on the official jury list. When the names of the jurors were read aloud the defendant stated he had intended to strike Stephens but had inadvertently failed to do so on the official list and requested Stephens then be struck and replaced by another member of the panel. The trial court noted that defendant’s attorney used the official list in his scratches, delivered it to the clerk, the clerk called the jury, including Stephens, and the parties were bound by the list so returned.

§ 546.200, RSMo 1969, provides in part: “The jury list, with the state’s challenges indicated thereon, shall then be forthwith delivered to the defendant or his attorney, who shall thereupon announce or indicate his challenges and return the list into court and the remaining twelve, or if there be more than twelve, the first twelve next remaining on the list unchallenged, shall be the jury to try the cause.”

In State v. Harris, 356 S.W.2d 889 (Mo.1962), the defendant sought substitution of a juror because he had inadvertently failed to peremptorily challenge one of the jurors. Our Supreme Court held there was no abuse of discretion by the trial court’s denial of the request even though the state agreed to a substitution. We do not find an abuse of discretion in this case, and if in fact the defendant felt juror Stephens was prejudiced he should have tried the issue by making a challenge for cause. A defendant electing to forgo a challenge for cause is in no position to complain. State v. Kirkpatrick, 428 S.W.2d 513 (Mo.1968).

Following completion of voir dire the defendant orally moved to strike the entire jury panel on the basis that the panel was not representative or selected at random. During the course of the voir dire the defendant interrogated each of the 27 members of the panel at length. He challenged only one venireman for cause, and the court sustained this challenge. The record is devoid of any evidence to support the defendant’s position that the panel was not representative or properly selected. On a challenge to the entire panel the defendant must bear the burden of proof to show it was improperly selected and not representative. State v. Ransburg, 466 S.W.2d 691 (Mo. 1971). The fact there is a disproportionate share of certain classes on a jury panel does not meet the burden of proof. State v. Smith, 467 S.W.2d 6 (Mo.1971). The cases cited by defendant in his brief involve the failure of trial courts to sustain challenges for cause of individual panel members and are not applicable.

Defendant’s remaining point is that his confession to the crime should have been suppressed and not received in evidence because it was involuntary. The able and experienced trial judge who presided conducted a Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), hearing on the voluntary nature of the confession. “Where, as here, the testimony conflicts as to whether the confession was voluntary, admission of the confession into evidence by the trial court is a matter of discretion. State v. Pierce, 236 S.W.2d 314 (Mo.1951).” State v. Garrett, 510 S.W.2d 853, 855 (Mo. App.1974). We have reviewed the evidence offered by the state and by the defendant and, giving due deference to the opportunity of the trial court to judge the credibility of witnesses [Rule 73.01(3)(b)], we find no abuse of discretion on the finding of volun-tariness of defendant’s inculpatory statement.

The judgment is affirmed.

All concur.

      . A Hampshire. A Duroc sow named “Baby” was the subject of theft in a related case arising in Ripley County. State v. Blankenship, 526 S.W.2d 78 (Mo.App.1975).


author: TITUS, Judge.

text:
    STATE of Missouri ex rel. Richard N. CRAIG et al., Relators, v. The Honorable Ben F. PYLE, Judge of the Circuit Court of Jasper County, Missouri, Respondent, Joplin City Market, Inc., Intervenor.
    No. 10335.
    Missouri Court of Appeals, Springfield District.
    April 26, 1976.
    George C. Baldridge, City Atty., Joplin, for relators.
    John R. Martin, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for respondent.
    Charles D. Tudor, Joplin, for intervenor.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   PRELIMINARY RULE IN PROHIBITION QUASHED

TITUS, Judge.

Our preliminary rule in prohibition went down on a petition which alleged that the respondent circuit judge pretended jurisdiction to restrain and enjoin the relators herein as members of the city council of the City of Joplin from “Bringing Council Bill No. 76-30 up for final reading.” Albright v. Fisher, 164 Mo. 56, 64 S.W. 106 (banc 1901). After our preliminary rule intervened to prohibit respondent from restraining and enjoining said action, so we are advised by stipulation of the parties, the relators met and voted against adoption of said council bill, thus effectively rendering moot relators’ plea for relief. To continue to press our writ against the respondent would be useless. State ex rel. Drain v. Schoenlaub, 529 S.W.2d 924 (Mo.App.1975). Accordingly, we quash the preliminary rule in prohibition hereinbefore issued.

It is so ordered.

All concur.


text:
    STATE of Missouri, Respondent, v. Robert Lee JONES, Appellant.
    No. 10072.
    Missouri Court of Appeals, Springfield District.
    April 27, 1976.
    Motion for Rehearing or Transfer to Supreme Court Denied May 14, 1976.

      John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.
    Robert J. Goodwin, Caruthersville, for appellant.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Defendant Robert Lee Jones was convicted by a New Madrid County jury of two counts of first degree robbery [§ 560.120, RSMo 1969] and sentenced by the trial judge as an habitual criminal to consecutive terms of 15 years and 5 years imprisonment. We affirm.

In this appeal the defendant claims his pre-trial motion to suppress his inculpatory statement was erroneously overruled by the trial court. Defendant contends his confession to the two crimes was induced by promises and made after he had been in custody more than twenty hours without charges having been filed.

Initially, we are confronted with the fact that at trial the defendant made no objection when his written inculpatory statement was offered into evidence. Further, no objection was made when the statement was read aloud or passed to the jury. Consequently, defendant is not now in a position to claim error in denying his motion to suppress his confession because this issue was not preserved for appellate review. State v. Carr, 499 S.W.2d 788 (Mo. 1973); State v. Stevens, 467 S.W.2d 10 (Mo.), cert. denied, 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546 (1971); State v. Hampton, 509 S.W.2d 139 (Mo.App.1974).

Nevertheless, we have read the testimony heard by the court, at the suppression hearing. Defendant’s testimony of alleged promises and inducements was squarely contradicted by the state’s evidence. An experienced trial judge resolved the conflicting issue against the defendant. We defer to his resolution, he being in a better position to arrive at the truth. State v. Anderson, 384 S.W.2d 591 (Mo. banc 1964); State v. Tomizoli, 519 S.W.2d 713 (Mo.App.1975).

We also observe defendant’s urging of the 20-hour limit [Rule 21.14, V.A.M.R., and § 544.170, RSMo 1969] as a ground for declaring his confession involuntary is also without merit. Roberts v. State, 476 S.W.2d 490 (Mo.1972); State v. Williams, 369 S.W.2d 408 (Mo. banc 1963).

The judgment is affirmed.

All concur.