text:
    STATE of Missouri, Respondent, v. Irvin M. BROWN, Appellant.
    No. 59510.
    Supreme Court of Missouri, en banc.
    March 14, 1977.

      Lee M. Nation, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   BARDGETT, Judge.

This case is written on reassignment. Appellant Irvin Brown was found guilty by a jury on two counts of robbery in the first degree with the punishment assessed at five years’ imprisonment on each count. The court entered judgment in accordance with the verdict and, exercising its discretion, determined that the sentences of five years on each count would run consecutively. Brown appealed to the Missouri court of appeals, Kansas City district, where the convictions were affirmed. The court of appeals thereafter overruled Brown’s motion for rehearing but sustained his motion for transfer to this court because of the general interest and importance of the questions presented in the case involving the trial court’s action in striking the entire testimony of a nonparty defense alibi witness because the witness refused to answer a certain question on cross-examination by the state. This court may determine the cause as on original appeal and will do so in this case. Art. V, sec. 10, Mo.Const., as amended.

Appellant’s first point is that the evidence was insufficient to support the convictions.

We have reviewed the evidence and conclude, as did the court of appeals, that the evidence is sufficient to support the convictions. The evidence will not be set forth in detail as the court has concluded the convictions must be reversed and the causes remanded for new trial because of error in striking the entire testimony of defense witness James Moore, Jr., which is the subject of the second point on this appeal.

Max Levine, the proprietor of a grocery store, and his son Sam Levine, one other employee, and a customer were in the store when three men entered the store, two of whom had guns, and robbed the Levines. The specific location of the third robber, at this time, is not disclosed by the evidence. Max Levine set off an alarm which was received by two officers in a nearby patrol car. The officers met a green Cadillac going in the opposite direction. There were three black males in the Cadillac, two in the front seat and one in the rear seat. The occupant in the rear seat had a brown ski mask pulled down approximately to the top of his eyes. The police pursued the accelerating Cadillac which subsequently stopped.

The police were only about 50 feet behind it at that time and came to a halt immediately behind the Cadillac. One officer went to the Cadillac and arrested two of the men— one in the front seat and one in the rear seat. The third occupant had run away from the Cadillac and was pursued by the other officer. He lost sight of the fleeing man momentarily on two occasions but did arrest the defendant Brown as Brown was on the front porch of a house hollering to be let in.

The court of appeals held, and we agree, that the foregoing and other evidence was sufficient to permit the jury to find the defendant Brown was the man who ran from the Cadillac and who previously had participated in the robbery. In so saying, however, it must be borne in mind that the jury was not compelled to so find. It had the right and power to find for the defendant.

The defendant pled not guilty and as his only witness called one James Moore whose testimony is set forth below. Moore testified he and John Green were two of the three robbers and that John Green was the man who ran from the Cadillac. Previously officer Florea testified he arrested the two men who remained in the car and they were James Moore (the witness) and a person named Bates. Moore testified the defendant Irvin Brown did not accompany him to the grocery store, did not participate in the robbery, and was not in the Cadillac with Moore on the day in question.

At this point it is to be observed that there is no question under the evidence but what three men participated in the robbery; that two of the men were arrested in the Cadillac and they were James Moore and Bates. According to the state’s evidence, the man who ran from the Cadillac was the defendant Irvin M. Brown. According to the testimony of defense witness Moore, the man who ran from the Cadillac was one John Green and not the defendant. Officer Halteman testified it was the Cadillac’s driver who ran from the car when it stopped. The factual issue for the jury to decide was whether defendant Brown was the man who ran from the car and under all the evidence was the man who ran from the car the third participant in the robbery.

Moore did not refuse to testify as to who was driving the Cadillac or who ran from it. He testified one John Green was the driver and that John Green ran from that car.

On cross-examination by the state, Moore was asked:

“Q. All right. It was yourself and you now say this deceased man, John Green. Who was the third party?
A. Do I have to say that, also?
Q. I believe you do.
A. I mean like, I mean, even though if the party, you know, I don’t really want to say who the third party was.
MR. HAGGERTY: Your Honor, I would ask the Court to instruct the witness to answer the question.
THE COURT: The witness will answer the question. You will answer the question.
A. Your Honor, do I have — do I have the opportunity to call my lawyer?”

The state does not contend that the defendant was one of the two arrested in the Cadillac but rather that the defendant was the one who ran from the car. Who then is it that is referred to in the question supra as the “third party”? It is Bates, the other man, who was arrested with Moore in the car. We know the question does not refer to the defendant because the witness had already testified concerning him. And it was not John Green because the witness testified that Green was the man who ran from the car. Finally, the state already knew the identity of this “third party” as one Bates, the man arrested with Moore in the car.

Nevertheless, the question which called upon Moore to name the men who were with him in the car was certainly material and relevant and should have been answered by the witness. The court of appeals said, and we agree, “They [state] were entitled to ask the admitted participant [Moore] who the third person was to test his [Moore’s] credibility. The testimony was, on its face, a patent attempt to avoid testifying as to the guilt of the other occupant of the vehicle who had apparently not pled to the charges, but who was, of course, apprehended at the scene by the officers.”

On motion by the state, the trial court struck the entire testimony of witness Moore because he refused to identify the man who was arrested in the car with him. In so doing the witness’s testimony that the appellant had not participated in the robbery was removed from the jury’s consideration.

The appellant asserts that striking witness Moore’s testimony “denied the defendant fundamental fairness which is the essence of due process and a violation of the Fifth, Sixth and Fourteenth Amendments of the Constitution of the United States, when the court granted the prosecutor’s motion to strike all of the testimony of the witness called for the defense.”

In Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967), the United States Supreme Court said: “The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.”

Art. I, sec. 18 (a), Mo.Const., provides: “That in criminal prosecutions the accused shall have the right to appear and defend, in person and by counsel; ... to have process to compel the attendance of witnesses in his behalf; . . . .”

A witness may be penalized for refusing to answer material and relevant questions under sec. 491.200, RSMo 1969, which provides: “A person summoned as a witness, and attending, who shall refuse to give evidence which may lawfully be required to be given by such person, on oath or affirmation, may be committed to prison by the court, or other person authorized to take his deposition or testimony, there to remain, without bail, until he gives such evidence.”

The trial court did not use its contempt powers under sec. 491.200 as to witness Moore. It is argued that when the witness is already in jail or the penitentiary under sentence or, as here, awaiting sentence on his guilty plea to robbery, the ordinary coercive sanction of imprisonment for contempt is simply not effective. Therefore, it is argued, the trial court must and does have the power to impose other sanctions so as to meet a situation where a witness who is already confined refuses to answer a material and relevant question. In this case the threat of jail for contempt is insignificant and provides no practical coercive effect. Even as to a witness who is not in custody at the time he testifies, the threat of jail for contempt will not always be effective. He may choose jail in preference to obeying the court’s order to answer a question but, at least as to that type of witness, it is reasonably probable that the threat of jail will be sufficient to cause him to answer the question. In the final analysis, however, if a person refuses to speak, no power available to any court can make him do so.

Text writers have stated general rules to govern situations where a witness refuses to answer proper questions.

In 5 Wigmore on Evidence, sec. 1391, at 137 (Chadbourne Rev. 1974), the general applicable rule is stated as follows: “Where the witness, after his examination in chief on the stand, has refused to submit to cross-examination, the opportunity of thus probing and testing his statements has substantially failed, and his direct testimony should be struck out. On the circumstances of the case, the refusal or evasion of answers to one or more questions only need not lead to this result.”

In McCormick on Evidence, sec. 19, at 45, appears the following: “It is submitted that except for the testimony of the state’s witnesses in criminal cases the judge should let the direct testimony stand but should be required on request to instruct the jury in weighing its value to consider the lack of opportunity to cross-examine.”

And at 98 C.J.S. Witnesses § 374, at 127, it is stated: “Where a witness refuses to submit to cross-examination, the action of the trial court must be governed by its conclusion on which of several alternatives justice to all concerned will be obtained, and generally where a witness refuses to answer, or answers evasively, pertinent questions on cross-examination, his testimony on his direct examination should be stricken, especially where the witness is a party testifying in his own behalf. The fact that a party refuses to answer pertinent and proper questions on cross-examination may be considered by the jury in testing his good faith and credibility. Where plaintiff on cross-examination before a referee refuses to answer proper and pertinent questions, he should be compelled by the judge, on proper request, to make full and complete answer.”

The contempt sanction is coercive upon the witness himself but the sanction of striking all of the witness’s testimony may or may not be coercive with respect to the witness. If the witness is a party, then the threat of striking his testimony is coercive, but if the witness is not a party such a threat is not coercive as to the witness at all. The instant case is an example of the latter proposition. Striking the entire testimony of the witness Moore was no sanction as to Moore. That sanction operated to the detriment of the defendant in a situation where the defendant had no way open to him to cause the witness to answer the question. Yet, the defendant was totally deprived of the witness’s exculpatory testimony.

Depriving a defendant of the benefit of testimony given by a defense witness in a criminal case takes on additional significance because the state and federal constitutions vest a constitutional right in the defendant to confront his accusers, to cross-examine them, and to call witnesses in his own behalf. Amendments 6 and 14, U.S. Const., and Art. I, see. 18 (a), Mo.Const. Of course, the administration of criminal justice requires the state to call witnesses and requires that the state be able to cross-examine witnesses called by the defense. But the protection of the state’s right to do so does not authorize a court to cut short the defendant’s constitutional right to call witnesses in his own defense and to have the jury consider their testimony.

The difficulty lies in the application of the general rules noted without nullifying or seriously impairing the constitutionally-protected rights of a defendant in a criminal case.

The state cites no cases and our independent research has found none upholding a trial court’s ruling in striking important testimony of a nonparty defense witness in a criminal case upon the ground that the witness refused to answer certain questions on cross-examination by the state. And the cases cited under the general propositions taken from Wigmore and McCormick, supra, do not hold that the testimony of a nonparty defense witness in a criminal case should be so stricken.

Most of the cases footnoted in Wigmore and McCormick focus on the defendant’s right to cross-examine prosecution witnesses and the consequences flowing from a court’s refusal, on motion by the defendant, to strike the testimony of a prosecution witness who refuses to answer some of the questions on cross and those who refuse to be cross-examined at all. Although cases such as United States v. Cardillo, 316 F.2d 606 (2d Cir. 1963), cert. den. 375 U.S. 822, 84 S.Ct. 60, 11 L.Ed.2d 55 (1963), one of the leading cases on the subject, do not directly answer the problem posed in the instant ease, Cardillo does point out that the issue is one of constitutional dimension because the right of a defendant to cross-examine is constitutionally protected.

In Cardillo the court states at 611: “Since the right to cross-examine is guaranteed by the Constitution, a federal conviction will be reversed if the cross-examination of government witnesses has been unreasonably limited. E. G., Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931); United States v. Masino, 2 Cir. 1960, 275 F.2d 129; United States v. Lester, 2 Cir. 1957, 248 F.2d 239. However, reversal need not result from every limitation of permissible cross-examination and a witness’ testimony may, in some cases, be used against a defendant, even though the witness invokes his privilege against self-incrimination during cross-examination. In determining whether the testimony of a witness who invokes the privilege against self-incrimination during cross-examination may be used against the defendant, a distinction must be drawn between cases in which the assertion of the privilege merely precludes inquiry into collateral matters which bear only on the credibility of the witness and those cases in which the assertion of the privilege prevents inquiry into matters about which the witness testified on direct examination. Where the privilege has been invoked as to purely collateral matters, there is little danger of prejudice to the defendant and, therefore, the witness’s testimony may be used against him. United States v. Kravitz, 3 Cir. 1960, 281 F.2d 581; Hamer v. United States, 9 Cir. 1958, 259 F.2d 274; United States v. Toner, 3 Cir. 1949, 173 F.2d 140. On the other hand, if the witness by invoking the privilege precludes inquiry into the details of his direct testimony, there may be a substantial danger of prejudice because the defense is deprived of the right to test the truth of his direct testimony and, therefore, that witness’s testimony should be stricken in whole or in part, Montgomery v. United States, 5 Cir. 1953, 203 F.2d 887; cf. United States v. Andolschek, 2 Cir. 1944, 142 F.2d 503; Stephan v. United States, 6 Cir. 1943, 133 F.2d 87; United States v. Keown, W.D.Ky.1937, 19 F.Supp. 639.”

Cardillo distinguished questions which were proper cross-examination but collateral to the main inquiry such as those relating solely to the credibility of the witness or to prior criminal activity of the witness from questions directly relating to the participation of two of the defendants in the conspiracy for which they were being tried. The court upheld the trial court’s ruling refusing to strike a witness’s testimony where the questions related to the collateral matter but held the trial court erred in refusing to strike the testimony of a prosecution witness who refused to answer questions on cross-examination which bore directly on the participation of two of the defendants in the conspiracy. The case was reversed as to these two defendants, Harris and Kamin-sky, because the court determined that the refusal of the witness to answer questions bearing directly upon the complicity of those defendants in the crime charged “thwarts a fundamental right of the defendant to cross-examine his accusers.” 316 F.2d at 613.

In arriving at its conclusion, Gardillo pointed out that not every refusal to answer by a witness claiming his fifth-amendment rights requires the striking of his testimony or a part thereof, and stated at 613: . . There would appear to be at least three categories to be considered. The first would be one in which the answer would have been so closely related to the commission of the crime that the entire testimony of the witness should be stricken. The second would be a situation in which the subject matter of the testimony was connected solely with one phase of the case in which event a partial striking might suffice. The third would involve collateral matters or cumulative testimony concerning credibility which would not require a direction to strike and which could be handled (in a jury case) by the judge’s charge if questions as to the weight to be ascribed to such testimony arose. As to the first and second categories suggested, whether all or a part of the testimony should be stricken, must depend upon the discretion of the trial judge exercised in the light of the particular circumstances. Unsatisfactory as such a generality is for a trial judge who is required to give instantaneous rulings on close questions and who does not enjoy the luxury of reflective appellate deliberation, any set of specific dogmas would be even more unworkable.”

Under the present procedure in Missouri, the court could not orally or in writing instruct the jury with reference to the credibility of a specific witness. See MAI-CR 2.01, par. 2, notes on use. But the credibility of a witness who refuses to answer questions on cross-examination may be argued to the jury under MAI-CR 2.01.

It is seen from Cardillo and cases cited therein that courts must be acutely aware of a defendant’s right to confront and cross-examine prosecution witnesses and to not permit that right to be diminished by recalcitrant witnesses who give damaging testimony on direct and then refuse to answer questions on cross which are closely related to the commission of the crime because those rights are constitutionally protected.

By the same token, courts must also be acutely aware of the equally important constitutional right of a defendant in a criminal case to call witnesses in his defense and to have the jury consider their testimony. This right cannot be diminished or overridden simply because a nonparty defense witness chooses to refuse to answer some questions put to him on cross-examination by the prosecution.

While there may be other cases, the only ones cited by the parties and those found by our own research which deal with striking evidence offered by the defense in a criminal case for failure to answer questions on cross-examination are: People v. McGowan, 80 Cal.App. 293, 251 P. 643 (1926); People v. Barthel, 231 Cal.App.2d 827, 42 Cal.Rptr. 290 (1965); State v. Monsoor, 56 Wis.2d 689, 203 N.W.2d 20 (1973), rev’d, 497 F.2d 1126 (7th Cir. 1974); and People v. Williams, 30 Cal.App.3d 502, 106 Cal.Rptr. 324 (1973).

Williams was an appeal by the state from a trial court’s order dismissing an information charging the defendant with aggravated assault on the ground that the defendant had been deprived of his constitutional right to a speedy trial. This dismissal order followed an evidentiary hearing on the defendant’s motion to dismiss. During that hearing the defendant offered his declaration in evidence under penalty of perjury. The declaration consisted of a sworn statement to the effect that the defendant had been available at an address in Berkeley, California, for service of a warrant since 1968. There had been an 18-month delay between the filing of the complaint and the date of his arrest. The state objected to the declaration unless the defendant Williams took the stand and stood cross-examination as to its contents. The defendant refused to be cross-examined whereupon the state’s objection was sustained and the declaration was not allowed in evidence.

In McGowan the defendant, who was charged with attempting to rob one Anderson at 825 Sansome Street and who was apprehended in a hospital where he had been taken for a gunshot wound in the abdomen, testified he had been shot by a man named Friel at 10th and Patrero streets and that he had not run away from the victim Anderson on Sansome Street. On cross-examination defendant was asked where he had been before arriving at 10th and Patrero and he replied he had just taken a young lady home. When asked her name and address, the defendant refused to answer. The court ordered him to answer but he persisted in his refusal so the court struck all of his testimony. The California court of appeals noted that a defendant in a criminal case cannot be compelled to testify but if he does testify voluntarily then he may be cross-examined upon all matters about which he had been examined on direct. The court held the questions asked on cross-examination were proper and that “[t]he court did not strike out the testimony as a punishment for contempt, but for the reason that through no fault of the prosecution, but through the deliberate act of the defendant himself the prosecution was deprived of the opportunity of cross-examining the defendant.” 251 P. at 645. (Emphasis added.)

In Barthel the defendant was convicted of engaging in bookmaking, occupying a room with betting paraphernalia, and recording or registering bets. During her trial the defendant took the stand in her own defense for the limited purpose of attacking the evidence relating to her knowledge of the officers’ presence before they forcibly entered. On direct examination she testified she heard unintelligible noises but was not aware the police were demanding entry. On cross-examination she was asked if she had hidden some objects under a mattress before the officers entered. An objection to the question was overruled and her attorney advised her not to answer on self-incrimination grounds. She refused to answer on those grounds and the court struck her testimony. The appellate court held that if a defendant offers himself as a witness he may be cross-examined with respect to facts or denials which are necessarily implied in his testimony. The court said that where a witness refuses to be cross-examined the direct testimony may be stricken citing People v. Abner, 209 Cal.App.2d 484, 25 Cal.Rptr. 882 (1962). In Abner the court said the same thing citing People v. McGowan, supra. In Abner the court also held there was no refusal to answer questions on cross and said the cases dealing with a refusal to answer questions on cross-examination were not applicable.

In Williams, McGowan, and Barthel, it was the defendant who, after taking the stand as a witness in defense, refused to answer material questions on cross-examination. And, as pointed out in McGowan, the striking of the testimony of the defendant was proper because the refusal to answer was the deliberate act of the defendant himself. It is also obvious that the threat to strike a defendant’s testimony unless the defendant answers the questions is calculated to coerce the defendant to answer and serves the same purpose as contempt.

In the instant case, it was not the defendant who refused to answer questions and the refusal of the witness called by the defendant cannot be considered a refusal of the defendant.

In Monsoor a nonparty defense witness refused to answer certain questions put by the prosecution on cross-examination. The questions did not relate to the subject matter of the direct examination but were for the purpose of undermining the credibility of the witness Lyons. The question he refused to answer was whether or not anyone else ever smoked marijuana at his or defendant’s residence. The trial court then struck the entire testimony of the witness. The Supreme Court of Wisconsin held the trial court abused its discretion in striking the witness’s testimony but held it was not prejudicial in that case because the court could not say that striking the testimony probably affected the result of the trial.

The Supreme Court of Wisconsin in Monsoor used two criteria for determining whether prejudice occurred: one, whether the error affected a substantial right and, two, whether it probably affected the result of the trial. As noted, the court held it was error to strike the testimony so, arguendo, the court found that it affected a substantial right. But, then, using the second part of its criteria the court failed to find that the absence of the testimony “probably affected the result of the trial” and on that basis held no prejudice occurred and affirmed the conviction.

Subsequently, Monsoor instituted habeas corpus in the federal district court of Wisconsin claiming that striking his witness’s testimony violated his Sixth and Fourteenth Amendment rights to call witnesses in his own defense. The district court denied relief. The United States court of appeals in State of Wisconsin ex rel. Monsoor v. Gagnon, 497 F.2d 1126 (7th Cir. 1974), reversed and remanded and, noting the criteria used by the Wisconsin Supreme Court to determine prejudice, stated at 497 F.2d 1130: “As noted, supra, the Supreme Court of Wisconsin declined to reverse Monsoor’s conviction on the ground that the error in striking Lyons’ testimony would not have ‘probably affected the result of the trial’. 56 Wis.2d 689, 203 N.W.2d at 27. Before a federal constitutional error, however, can be held harmless, ‘the court must be able to declare a belief that it was harmless beyond a reasonable doubt’ Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). See also United States v. Scott, 7th Cir., 494 F.2d 298 decided by this court on February 26, 1974.” The court of appeals then distinguished between the two parts of the witness Lyons’ testimony. Lyons testified that on numerous occasions Monsoor had refused to sell marijuana to Bowman, an informer. Four other witnesses corroborated this testimony. It was held that striking that part of Lyons’ testimony was not prejudicial because it was merely cumulative to the four other defense witnesses and therefore the error was harmless beyond a reasonable doubt. But, as to the testimony of Lyons that Monsoor did not receive any phone call from Bowman and, therefore, did not tell Bowman he (Mons-oor) had some “grass” and agreed that Bowman could bring a friend along presumably to purchase some marijuana, the court said this testimony of Lyons supported the defense of entrapment. The court held it could not say that striking this testimony was harmless beyond a reasonable doubt and “did not contribute” to Monsoor’s conviction.

The difference between the opinion of the Wisconsin Supreme Court in Monsoor and the opinion of the United States court of appeals on the same matter is that Wisconsin would hold prejudice occurred only if that court could say the striking of the testimony “probably affected the result of the trial”, while the Seventh Circuit rejected that criterion saying the error in this type of matter is prejudicial unless the court could say the error was harmless beyond a reasonable doubt.

In State v. Degraffenreid, 477 S.W.2d 57, 64 (Mo. banc 1972), this court held that error in the admission of evidence should not be declared harmless unless it is so without question and cited cases. The concurring opinion of Finch, J., in Degraffen-reid, concurred in by five other judges, made it clear that in Missouri the court must examine each case to determine if the error was harmless and hence not prejudicial. The rule set out in Degraffenreid, however, is for all practical purposes the same as the rule set forth in State ex rel. Monsoor v. Gagnon, supra, and will be applied to the instant case.

In the instant case the testimony of the witness which was ordered stricken was the only evidence in the case that defendant was not present and did not participate in the crime. It is not cumulative to any other evidence. As noted, supra, the accused has an absolute constitutional right to have witnesses testify in his defense. When a court strikes a nonparty defense witness’s testimony because of the refusal of that witness to answer a material question, the sanction is not upon the witness but on the defendant. This type of sanction may well deprive the defendant of his right to have witnesses testify in his defense and thereby violate the defendant’s rights under the Sixth Amendment to the United States Constitution and Art. I, sec. 18(a), of the Missouri Constitution.

There is no indication in the instant case that the defendant or his attorney directed the witness to refuse to answer the question put to him concerning the identity of the third robber, yet the sanction was imposed the same as if the defendant was responsible for the witness’s refusal to answer the question.

The court does not have the same discretion to strike the testimony of a non-party defense witness as it does to strike the testimony of a witness for the prosecution or the testimony of the defendant himself when the witness refuses to answer material questions on cross-examination. This is founded on the constitutional rights of the defendant to confront his accusers, to cross-examine them, and to call witnesses in his own behalf. Those rights do not inure to the prosecution by the constitution — only to the defendant. See Amend. VI, U.S. Const., and Art. I, sec. 18(a), Mo.Const. Of course, the administration of criminal justice requires that the state call witnesses and requires the state be able to cross-examine witnesses called by the defendant. But the protection of the state’s right to do so does not authorize a court to cut short the defendant’s constitutional right to call witnesses in his own defense and to have the jury consider their testimony.

Acceptance of the proposition that a defendant in a criminal case has a constitutional right to call witnesses in his own defense does not necessarily mean that a trial court must in every instance and under all circumstances refrain from striking all or part of a recalcitrant nonparty defense witness’s testimony. In Cardillo, supra, the court held that even where the question which the witness refuses to answer is closely related to the commission of the crime, the question as to whether his testimony should be stricken must depend upon the discretion of the trial judge in the light of the particular circumstances. 316 F.2d at 613.

In the instant case the testimony of witness Moore, if believed by the jury, operated as a complete defense. If the jury believed witness Moore, then it would believe that the defendant was not present in the car, did not participate in the robbery, was not the man who ran from the car and, in short, was not guilty. Yet, this testimony was stricken because the witness declined to identify another person — the man who was arrested with him in the car— whose identity was already known to the police and the prosecution, and who had already been identified in testimony before the jury by the police officers who arrested him, as a man named Bates. And, as noted supra, this evidence was in no sense cumulative.

Recognition of the constitutional dimensions of the right to call witnesses in one’s defense means that the power to strike testimony crucial to the defense cannot be lightly employed. This is so even though the conduct of the nonparty witness is irritating to the point of frustration to the court and perhaps contemptuous of a court’s order to answer the question. Finally, it must be borne in mind that striking the testimony of such a nonparty witness may deprive a defendant — but not the witness — of the right to have witnesses testify in defense.

The court holds that the trial court abused its discretion in striking the testimony of witness Moore and that the defendant was prejudiced in his defense.

The judgment of the circuit court is reversed and the cause is remanded for a new trial.

RENDLEN, J., not participating.

DONNELLY, Judge,

concurring in result.

I would not adopt the Cardillo rule in this case for at least two reasons:

(1) As I understand Cardillo, the refusal of a witness to testify would be excused if cross-examination were collateral to the main inquiry. This facet of Cardillo is of dubious constitutional validity. In Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968), on cross-examination of the principal prosecution witness the trial court sustained the prosecutor’s objections to questions which pertained to matter collateral to the main inquiry — the credibility of the prosecution witness. The court held defendant was denied his Sixth Amendment right to confront the witnesses against him.

(2) I agree with the author of the Cardillo opinion that it constitutes and represents unsatisfactory “generality * * * for a trial judge who is required to give instantaneous rulings on close questions and who does not enjoy the luxury of reflective appellate deliberation * * *I do not agree with the author of the Cardillo opinion that “any set of specific dogmas would be even more unworkable.”

In 5 Wigmore, Evidence, § 1391 (Chadb-ourne Rev. 1974), the general rule is stated as follows:

“Where the witness, after his examination in chief on the stand, has refused to submit to cross-examination, the opportunity of thus probing and testing his statements has substantially failed, and his direct testimony should be struck out. On the circumstances of the case, the refusal or evasion of answers to one or more questions only need not lead to this result.”

In McCormick, Evidence, § 19, appears the following:

“It is submitted that the judge should let the direct testimony stand but should be required on request to instruct the jury in weighing its value to consider the lack of opportunity to cross-examine.”

In Missouri, a witness may be penalized for refusing to testify. Section 491.200, RSMo 1969, reads as follows:

“A person summoned as a witness, and attending, who shall refuse to give evidence which may lawfully be required to be given by such person, on oath or affirmation, may be committed to prison by the court, or other person authorized to take his deposition or testimony, there to remain, without bail, until he gives such evidence.”

I would submit that the following rules of procedure are appropriate in a situation such as presented here:

(1) If a non-party witness shall refuse to give evidence which may lawfully be required to be given, the trial court may impose the sanction provided in § 491.200, supra.

(2) If the sanction provided in § 491.200, supra, is unsuccessful or impractical, and if the witness refuses to submit to cross-examination at all, his direct testimony should be struck out.

(3) If the sanction provided in § 491.200, supra, is unsuccessful or impractical, and if the witness shall refuse to give an answer to a question which he may lawfully be required to answer, after being instructed by the trial court to answer, the trial court should let the direct testimony stand but should immediately advise the jury that the witness’ refusal may be considered by the jury in determining the credibility of the witness and the weight his direct testimony deserves (Cf. Devitt and Blackmar, Federal Jury Practice and Instructions, 2d.Ed.1970, § 12.12). Admonitions by courts to juries during trial are commonplace in Missouri. For example, we encourage trial courts to instruct juries to disregard objectionable testimony. State v. Lira, 372 S.W.2d 80, 82 (Mo.1963).

(4) If the witness continues to refuse to answer questions to an extent that “the opportunity of * * * probing and testing his statements [made on direct examination] has substantially failed,” and he has, in effect, refused to submit to meaningful cross-examination at all, his direct testimony should be struck out.

I would turn then to application of these rules to the circumstances of this case. Witness James Moore did not refuse to submit to cross-examination. He refused to answer only one question. The trial court struck his direct testimony. The effect of this ruling was to deprive appellant of his only witness. In my opinion, the trial court prejudicially erred.

I concur only in the result.

      . The additional reason given by the court of appeals in its order transferring this case is that this court had previously ordered transfer of State v. Carlos, 549 S.W.2d 330 (Mo.banc 1977), decided concurrently herewith.

      . “DIRECT EXAMINATION BY MR. BROWN

      [defendant’s attorney]:
      Q. Would you state your name, please?
      A. James Moore, Jr.
      Q. Mr. Moore, did you have occasion to be charged by the State of Missouri by Indictment with two counts of robbery, in relation to an incident which occurred at the Sunshine Super Market, on 39th and Brooklyn, on October 12, 1974?
      A. Yes, I did.
      Q. Now Mr. Moore, calling your attention to October 12 at the Sunshine Super Market incident, would you state to the Court and the jury whether the defendant Irvin Michael Brown accompanied you to 39th and Garfield on that day?
      A. No, he didn’t.
      Q. And did he participate in the incident?
      A. No, sir.
      Q. Now we have heard testimony here that you were apprehended in regard to this incident, in a white over green Cadillac, by I believe it was Officer Florea. Now was Irvin Michael Brown in that Cadillac with you on that day?
      A. No, sir.
      Q. Now can you tell the Court and the jury who the person was driving that Cadillac?
      A. Is it necessary that I have to tell?
      Q. Well, I would appreciate it if you would answer that, yes.
      A. He is now deceased, though John Green.
      Q. And is he a person who ran from the Cadillac on that day in question?
      A. Yes, sir.
      MR. BROWN: You may inquire.
      CROSS-EXAMINATION BY MR. HAGGERTY:
      Q. What time did this robbery take place?
      A. I really don’t know. I know it was, might have been about 10:00 o’clock or so.
      Q. All right. Now how many people committed this robbery?
      A. Three people.
      Q. All right. It was yourself and you now say this deceased man, John Green. Who was the third party?
      A. Do I have to say that, also?
      Q. I believe you do.
      A. I mean like, I mean, even though if the party, you know, I don’t really want to say who the third party was.
      MR. HAGGERTY: Your Honor, I would ask the Court to instruct the witness to answer the question.
      THE COURT: The witness will not answer the question. You will answer the question.
      A. Your Honor, do I have — do I have the opportunity to call my lawyer?
      THE COURT: The defendant has called you as a witness here in his behalf. If you want to say something to help him, this is the opportunity to do so. If you don’t, why we will excuse you, and send you on your way.
      A. Your Honor, I would like to be excused, and go back to Jackson County Jail.
      THE COURT: If you would like to interrogate him further.
      MR. HAGGERTY: Well, the witness should be excused. I would ask that his testimony be excluded altogether, Your Honor; and the direct examination, and I be allowed to go ahead and continue his examination, and ask the Court to.
      THE COURT: On your motion, I will strike the whole of his testimony.
      MR. HAGGERTY: I would ask the Court to strike his testimony, if I am not permitted, if he is not going to answer the questions as to who the third party was, I would ask that his testimony be striken.
      MR. BROWN: I would like to make further inquiry of the witness at this point.
      THE COURT: Do so. If you can change his mind, fine. If you can’t—
      Q. (By Mr. Brown) Now Mr. Moore, is the reason that you don’t want to name the third party; is that reason because you are afraid?
      A. Yes, sir; in a way, because I have a family that I love, and if it was implicated that I turned State’s evidence on the party that was alive, that I would have to fear for the life of my family.
      Now you pled guilty to the charges of robbery; haven’t you, you entered a guilty plea, did you not? p
      Yes, sir. >

      Now which, as far as you are concerned, means you will probably be going to the penitentiary? p
      Possibly. >
      And you also recognize this possibility that the third party may be going to the same penitentiary, do you not? p
      I couldn’t say that. >
      Are you afraid for your own life?
      No more than for my own life, but the life of the people I love out there on the street.
      MR. BROWN: Judge, may we approach the bench? (Counsel approached the bench and the following proceedings were had:)
      MR. BROWN: I think we can take this off the record, if you like.
      THE COURT: No, I want every word of it on the record.
      MR. BROWN: I understand that the man will testify to who the third party was, if it can be done not in the presence of all these people.
      THE COURT: No, it is important that it be done right here, before God Almighty, and these twelve men.
      MR. BROWN: Judge, I would think that you should take into consideration, as a practical matter, the fear that the man has for his life, for—
      THE COURT: He comes here testifying not as a witness for the State, but for the defendant. No, I have no intention of going on to test his testimony, if he doesn’t want to give his complete testimony, we can’t test his credibility, we can’t test his story, unless he wants to tell us these things.
      (The proceedings returned to open Court.)
      THE COURT: Gentlemen of the jury, the Motion to strike the testimony of this witness is stricken, and the jury instructed to disregard each and every part of his testimony.
      He is now excused.
      MR. BROWN: Judge, I have one further question.
      THE COURT: No, you are through. Go on your way.
      MR. BROWN: Judge—
      THE COURT: I told you, you are through. Go on your way. There has to come a final time somewhere on these things. You just don’t go on forever.
      MR. BROWN: Judge, I am going to object to the striking of the testimony of this witness. I believe it is improper in this case. And I understand that the man is afraid, and I think that the Court can understand that, too, that a man would be afraid for the life of his family and children, that the man jeopardized his own freedom by coming here to testify today. He doesn’t gain anything by way of coming here and testify today. In fact, it would probably mean that he end up with a longer sentence. And I — I totally object to that.
      MR. HAGGERTY: I would strongly resent and object to any inference that the State was in any way out to penalize this man. All the State wants to find, if the man wants to testify, to testify, not to come and give half a loaf and walk away.
      MR. BROWN: The man told me that much if he come in here and testify, that the chances are that he is going to end up with much more time, that he would be looking at without testifying. He agreed to come here and testify. And I don’t think we should make a man jeopardize his life in this. I just don’t see it.
      THE COURT: The Court has ruled. There is nothing further to rule on.”


source: Caselaw Access Project

author: WEIER, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. William T. JOHNSON, Defendant-Appellant.
    No. 38191.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 1, 1977.
    Motion for Rehearing and for Transfer Denied April 15, 1977.
    Application to Transfer Denied May 10, 1977.

      Robert C. Babione, Public Defender, Blair K. Drazie, Asst. Public Defender, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Preston Dean, J. Michael Davis, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Richard G. Callahan, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Judge.

Defendant William T. Johnson was convicted of murder in the second degree and the punishment assessed by the jury of thirty years imprisonment was imposed by the trial court. Defendant was with a group of young men who were approached by another group in the hallway of Sumner High School in St. Louis on March 18, 1975. This encounter erupted into a gun-firing melee resulting in the death of Stephen Goods. Defendant does not challenge the sufficiency of the evidence to support the conviction but urges four points of error which, he argues, require the judgment of conviction and assessment of punishment to be reversed. We affirm the judgment in all respects.

Initially defendant contends that he was denied the effective assistance of counsel guaranteed to him by the state and federal constitutions when the trial court denied defense counsel’s motion for leave to withdraw from the case due to an alleged conflict of interest. Robert Lee was among those endorsed by the State as a prosecution witness; and on the second day of trial, well into the State’s case, proceedings were held outside the hearing of the jury to determine whether Lee would testify or choose to invoke his right to remain silent. At this time the attorney who had represented Lee in a prior, unrelated criminal charge, to which Lee had entered his plea of guilty, appeared with Lee and apparently advised him of his right to remain silent. This attorney was a member of the public defender’s office, as was the attorney who represented defendant. When it became apparent that Lee would invoke his right to remain silent, the assistant prosecutor informed the court that the State would not call Lee before the jury. Defendant’s attorney then moved to withdraw from the case, due to the alleged conflict of interest situation which resulted from another member of the public defender’s office advising a potential prosecution witness. This motion was denied and the cause proceeded. Lee was not called as a witness and neither his participation in the incident nor his potential testimony was ever suggested by the record or by counsel on appeal.

It is clear that a defendant is denied his constitutional right to the effective assistance of counsel if his attorney represents conflicting interests without the defendant’s knowledge and assent and an attorney who represents both the defendant and a prosecution witness is representing conflicting interests. Ciarelli v. State, 441 S.W.2d 695, 697[2] (Mo.1969); State v. Cox, 539 S.W.2d 684, 687[3] (Mo.App.1976). Once the existence of a conflict of interest has been established a showing of actual prejudice to the accused is not necessary, since the right to counsel is “too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” Glasser v. United States, 315 U.S. 60, 75-76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942), quoted in State v. Crockett, 419 S.W.2d 22, 28 (Mo.1967). But this rule evolved out of representation of codefendants or persons charged in related criminal matters.

Here, however, the initial inquiry must be whether a conflict of interest situation actually existed. Mason v. State, 468 S.W.2d 617, 620[1] (Mo.1971). A conflict of interest such as to deny to a defendant the effective assistance of counsel must be shown by evidence. Commonwealth v. Smith, 362 Mass. 782, 291 N.E.2d 607, 609[4] (1973). In order to evidence a conflict of interest something must have been done by counsel in the trial, or something must have been foregone by counsel and lost to defendant, which was detrimental to the interests of defendant and advantageous to the interests of witness Lee. Mooring v. State, 501 S.W.2d 7, 11[4] (Mo.1973); Mason v. State, supra at 620[1], No such evidence appears in this record. It is difficult for us to imagine how the interests of defendant conflicted, per se, with those of potential prosecution witness Lee when Lee was never called as a witness due to his invocation of the right to remain silent. Absent some showing of a conflict of interest the fact that one attorney from a large public defense organization represents a defendant in a criminal trial, after another staff attorney from that same organization represented a prosecution witness in a concluded and unrelated criminal matter, does not create a per se conflict of interest at defendant’s trial. People v. Wilkins, 28 N.Y.2d 53, 320 N.Y.S.2d 8, 268 N.E.2d 756 (1971). Finding no conflict of interest in the instant situation, we deny this point of defendant’s appeal.

Defendant’s next contention is that the trial court erred in unduly limiting his cross-examination of a key prosecution witness. This witness was a member of the deceased’s group during the shooting incident, and on cross-examination defense counsel asked the witness if he was familiar with the term “flourishing.” The state’s objection was sustained. At the bench defense counsel made an offer of proof that, if asked, the witness would state that he was familiar with the term, knew that flourishing was a felony, and knew that one could not enter the United States Marine Corps if convicted of a felony. Defense counsel believed that this witness had flourished a weapon during the incident, and that a motive existed for the witness to conceal this fact since he was a Marine stationed in Hawaii at the time of trial. Thus, defendant argues, the witness had a motive to lie about his alleged role during the shooting in order to protect his occupation as a Marine.

A witness is subject to impeachment by a showing of a motive for the witness’s testimony which might bear on his credibility. Subject to his claim of right against self-incrimination, he may be asked questions concerning whether he committed or admitted committing a specific criminal act. But the latitude and extent of cross-examination on such issues for purposes of impeachment is initially a determination to be made by the trial court within the exercise of its discretion. Such determinations will be set aside on appellate review only where it is affirmatively shown that the exercise of discretion was abused. State v. Lynch, 528 S.W.2d 454, 458[5] (Mo.App.1975); State v. Winters, 525 S.W.2d 417, 425[17] (Mo.App.1975). We find no abuse of discretion and rule the point adverse to defendant.

The third contention advanced by defendant is that the trial court abused its discretion by refusing to reduce the extent or duration of the punishment assessed by the jury. Following a motion to reduce sentence, pursuant to Rule 27.04, an appellate court has the power to reduce the extent or duration of the sentence in a case where passion and prejudice so clearly appears from the record that the appellate court can confidently say the trial court abused its discretion by declining to reduce the punishment. State v. Agee, 474 S.W.2d 817, 820[11] (Mo.1971); State v. Mucie, 448 S.W.2d 879, 889[11] (Mo.1970). No case has conclusively established how bias or passion or prejudice is to be demonstrated from the appellate record, although State v. Mude, supra, enumerated a nonexclusive list of four factors for consideration upon a request for a reduction in the punishment assessed by the jury. We have considered these factors, plus additional ones advanced by defendant in light of the facts concerning defendant’s participation in the fatal assault.

Stephen Goods, the victim, was set upon by defendant and three others (three armed with hand guns) in a hall of Sumner High School. After being slapped with an automatic pistol held by one of the four and being kicked by defendant who had a revolver in his hand, Goods was beaten to the floor. As he attempted to rise, one of the group, other than defendant, shot Goods and the defendant thereupon fired a shot at the victim. The victim and others with him were unarmed. The victim died from his injuries that same day. We have concluded that no abuse of discretion occurred when the trial court overruled the motion to reduce the punishment assessed for this brutal slaying.

Defendant’s final point is a broadside attack on this State’s sentencing procedures, coupled with an argument that the sentence assessed defendant constitutes cruel and unusual punishment. The attack on sentencing procedure is premised largely upon recent United States Supreme Court cases involving assessment of capital punishment. But the point was first raised in defendant’s brief and is not preserved for our review. State v. Goforth, 535 S.W.2d 464, 468[11] (Mo.App.1976). We note that our courts have repeatedly held that a punishment which is within the statutory limits for the offense, as is the thirty-year assessment in the instant case, is not cruel and unusual because of its duration unless so disproportionate to the offense committed so as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances. See e. g., State v. Agee, supra at 821[14].

The judgment is affirmed in all respects.

CLEMENS, P. J., and DOWD, J., concur.

      . This was specifically denied by the witness earlier.

      . Section 559.009(3), RSMo. (1975 Supp.) Ten years to life imprisonment.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Harry BURNETTE, Appellant.
    No. 37622.
    Missouri Court of Appeals, St. Louis District, Division one.
    March 8, 1977.
    Motion for Rehearing or Transfer Denied April 15, 1977.
    Application to Transfer Denied May 10, 1977.

      Robert C. Babione, Public Defender, Mary Louise Moran, Asst. Public Defender, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

The state charged defendant, a second offender, with first degree burglary (§ 560.-040, VAMS) by forcibly burglarizing an occupied dwelling. Following a guilty verdict the trial court sentenced him to 16 years’ imprisonment.

On appeal defendant (1) claims error in failure to read mandatory instruction MAI-CR 1.06; (2) challenges the victim’s identification testimony; (3) challenges hearsay evidence in a police report and (4) contends the trial court should have instructed on the lesser offense of second degree burglary. These points in turn.

Defendant’s first point relied on abstractly states the trial court “erroneously and prejudicially omitted reading MAI-CR 1.06.” Defendant did not object to the alleged omission at trial or in his motion for new trial, so the point is not preserved for appellate review. State v. Newman, 514 S.W.2d 527[2] (Mo.1974). Since defendant neither requests us to apply plain error Rule 27.20(c) nor demonstrates manifest injustice the point is denied. State v. Walker, 505 S.W.2d 119[5-8] (Mo.App.1973).

Defendant next challenges the victims’ identification testimony because of a one-on-one confrontation at a police station a week after the burglary. We summarize this and other identification testimony. James Culpepper, residing in the burglarized home, was awakened by a noise downstairs. He saw the burglar “real clear” when downstairs, while going out of the house and when he was walking across the back yard. He described the burglar to police by detailed physical features. When defendant was arrested a week later Cul-pepper identified him as the burglar while sitting alone at the police station.

Defendant challenged Culpepper’s identification by a motion to suppress, but after a hearing, the trial court denied it, ruling: “Under a totality of the circumstances shown in this cause, the identification of the defendant has a source independent of any alleged illegal lineup, and this finding is made beyond a reasonable doubt.” Then, at trial, witness Culpepper related his three views of the burglar in action and identified defendant as the burglar.

We have considered the trial court’s ruling in light of the test announced in State v. Hudson, 508 S.W.2d 707[7-9] (Mo.App.1974): “In evaluating the suggestiveness of a particular confrontation and the likelihood of misidentification, we look to factors such as the opportunity of the witness to view the accused at the time of the alleged crime, the accuracy of the witness’s prior description of the accused, the certainty of the witness at the confrontation, the length of time between the crime and the confrontation, and need for police to determine at the earliest opportunity [once] the person suspected is in fact the person sought.” We hold the trial court did not err in denying defendant’s motion to suppress.

Defendant’s next challenge is to the admission of hearsay evidence in a police report. In cross examining a police officer who had testified from an official report, defense counsel used the report without objection to attribute a statement to James Culpepper. On re-direct examination the state then read another part to explain the portion read by defense counsel. Defendant’s objection falls under the curative admissibility rule. State v. Scaturro, 509 S.W.2d 491 (Mo.App.1974), held that a party who reads into evidence certain parts of a document cannot thereafter object to the opponent’s use of other portions relevant to and explanatory of those already read. This negates defendant’s contention.

Defendant’s last point is the trial court’s failure to instruct on second degree burglary. State v. Bell, 442 S.W.2d 535[1-3] (Mo.1969), held it improper to instruct on second degree burglary when the evidence shows only forcible entry of an occupied dwelling. Here, the homeowner testified the back door was locked the morning of the burglary. James Culpepper, sleeping upstairs, was awakened by a “banging, breaking” sound. After seeing defendant go out the back door, he saw that the lock on the back door was “busted.” The only evidence of manner of entry was that it was forcible. The trial court properly concluded a second degree burglary instruction should not be given. State v. Johnson, 537 S.W.2d 816[3, 4] (Mo.App.1976).

Judgment affirmed.

DOWD and WEIER, JJ., concur.


author: STONE, Judge.

text:
    In re the Marriage of Olive Ruth STODDARD, Petitioner-Appellant, v. Elmer K. STODDARD, Respondent.
    No. 10372.
    Missouri Court of Appeals, Springfield District.
    March 11, 1977.
    Motion for Rehearing or to Transfer Denied April 5, 1977.

      Nicholas R. Fiorella, Springfield, for petitioner-appellant.
    Gary A. Love, Springfield, for respondent.
   STONE, Judge.

This attempt to appeal evolves from a dissolution of marriage decree entered by the Circuit Court of Greene County on February 10, 1976. On February 25, 1976, petitioner timely filed her “Motion to Amend Decree or in the Alternative for a New Trial,” as authorized by Rule 73.01, subpara. 1(c); and, on March 29,1976, the trial court conclusively ruled and completely disposed of petitioner’s said motion by amending the judgment only to the extent of awarding petitioner $1.00 per year maintenance “payable 3-29-76 and March 29 of each year hereafter” and overruling the motion for new trial, all as stated in and evidenced by the court’s docket entries on March 29, 1976, which concluded with the direction that the attorneys should “furnish judgment form forthwith.” (All references to rules are to Missouri Rules of Civil Procedure, V.A.M.R.)

In the transcript on appeal, the above docket entries are followed by the formal “Amended Judgment Entry,” which is properly introduced with these appropriate recitals:

“Now on this 29th day of March, 1976, the parties hereto appear through their counsel of record on Petitioner’s Motion to Amend Decree Or On (sic) The Alternative For A New Trial; upon the argument presented by the parties, the Court overrules the Motion for a New Trial and sustains the Motion to Amend The Decree as hereinafter set forth.” (Emphasis added)

The filing stamp of the Circuit Clerk of Greene County as shown in the transcript indicates that the formal “Amended Judgment Entry” was not filed in the Circuit Clerk’s office until April 12, 1976. However, the finality of the judgment was not dependent upon, or determined by, the filing or recordation of the formal judgment entry which faithfully tracked and fleshed out the clear and adequate docket entries by the court. “ ‘The rendition of a judgment is the judicial act of the court, whereas the entry of a judgment by the clerk on the records of the court is a ministerial, and not a judicial, act. . . . [T]he validity of a judgment is not affected by the delay of the clerk in entering it in the court records, or by an omission altogether to record it in pursuance of statutory provisions making it the duty of the clerk to enter all judgments of record. In this connection, it has been declared that the judgment derives its force, not from its entry on the record, but from the act of the court, and that the judgment is as final and complete when rendered by the court as it is when entered and recorded by the clerk.’ ” Fleming v. Clark Township of Chariton County, 357 S.W.2d 940, 942(2) (Mo.1962), quoting from 30A Am.Jur. 228, Judgments § 97, and citing four Mo. and three Mo.App. cases. See now 46 Am.Jur.2d Judgments § 158, pp. 417-418.

As we have noted supra, petitioner’s motion to amend was an authorized after-trial motion. Rule 73.01, subpara. 1(c). Therefore, it was required to be “treated as, and as a part of, [the] new trial motion for the purpose of ascertaining the time within which an appeal must be taken” and to “be disposed of at the same time.” Rule 81.-05(a). Hence, when the new trial motion was ruled on March 29, 1976, the judgment became final for the purposes of appeal. See again Rule 81.05(a). In these circumstances, no appeal could have been effective unless the notice of appeal was filed not later than ten days after March 29, 1976, the date on which the judgment became final. Rule 81.04. Petitioner-appellant’s notice of appeal, which was not filed until May 12, 1976, forty-four days after the judgment became final, was untimely and therefore ineffective.

Regardless of whether or not respondent has directed our attention to this matter, it is our duty to inquire into the timeliness of the notice of appeal in every case because, absent a timely notice, we do not acquire appellate jurisdiction. Budget-Easy, Incorporated v. Burd, 539 S.W.2d 740, 741(2) (Mo.App.1976); Jenkins v. Roberts, 420 S.W.2d 24, 25(1) (Mo.App.1967). Recognizing, as we do, the apparent severity of dismissal, we nevertheless have no jurisdiction and accordingly no alternative to dismissal of the appeal. In re Marriage of Chilton, 540 S.W.2d 237 (Mo.App.1976); Kuhn v. Bunch, 529 S.W.2d 200, 201(3) (Mo.App.1975); Perryman v. Perryman, 507 S.W.2d 671 (Mo.App.1974). The appeal must be, and hereby is, dismissed.

BILLINGS, C. J., and HOGAN, TITUS and FLANIGAN, JJ., concur.


author: FLANIGAN, Judge.

text:
    Ray FERGUSON, Plaintiff-Appellant, v. OVERHEAD DOOR COMPANY OF SPRINGFIELD, INC., Defendant-Respondent.
    No. 10001.
    Missouri Court of Appeals, Springfield District.
    March 16, 1977.
    Motion for Rehearing or Transfer Denied April 11, 1977.
    Application to Transfer Denied May 10, 1977.

      Herbert Douglas, Douglas, Douglas & Douglas, Neosho, B. H. Clampett, Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for plaintiff-appellant.
    Donald E. Bonacker, Jerry L. Reynolds, Springfield, for defendant-respondent.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

Plaintiff Raymond Ferguson, a licensed real estate broker, brought this action to recover a commission allegedly due him from defendant Overhead Door Company of Springfield, Inc., by reason of a sale by defendant to Jack Webb of an improved lot (5204 Range Line) in Joplin, Missouri. The sale price was $22,000 and the petition sought a six percent commission of $1,320.

As a defense to the petition, and as the basis for its counterclaim for actual and punitive damages, defendant alleged that plaintiff failed to disclose the existence of a higher offer ($25,500), that offer being available at the time defendant, without knowledge of its existence, accepted Webb’s $22,000 offer on November 30, 1973.

In February 1975 the case was tried to a jury which denied plaintiff relief on his petition and awarded defendant $3,500 actual damages and $5,000 punitive damages on its counterclaim. Plaintiff appeals.

In general plaintiff’s points on appeal lie in three areas: (a) The trial court erred in permitting defendant to introduce Exhibit F, a written statement which defendant’s witness Ralph Hamlin gave defendant’s attorney on December 3, 1973; (b) Instructions 4 and 6, offered by defendant, were erroneous for several reasons; (c) The evidence is insufficient to support the award of punitive damages.

In the order of their appearance in the following summary, the persons involved are:

1. Ferguson — plaintiff Raymond Ferguson;

2. Datema — Pete Datema, president of the corporate defendant, whose office is located in Springfield, Missouri. Datema represented the defendant throughout the described dealings and his authority so to do is not questioned;

3. Beal — Bob Beal, a business associate of Carroll Dale;

4. Dale — Carroll Dale, a bidder on the lot;

5. Hamlin — Ralph Hamlin, a self-employed Joplin real estate broker;

6. Dykes — Jim Dykes, a real estate salesman in the employ of Ferguson;

7. Webb — Jack Webb, the ultimate buyer of the lot.

November 23, 1973: In a telephone conversation Ferguson and Datema agreed that Ferguson would have “an exclusive listing” to sell the lot for a commission of six percent, the listing price to be $27,500. Ferguson, who had had two prior listings of the lot from Datema, placed his real estate sign on it.

November 24,1973: Beal and Dale talked with each other about buying the lot.

November 25, 1973: Dale telephoned Hamlin, whom Dale had previously used as his agent in real estate matters, and asked Hamlin to “see about buying the property for Dale.”

November 26, 1973: (1) Ferguson mailed Datema an “exclusive listing” form confirming the oral arrangements of November 23. This form was never signed by Datema; (2) Hamlin telephoned Ferguson’s office and talked to Dykes; Dykes said Ferguson would be happy to cooperate with Hamlin on a sale of the lot; Hamlin requested the key to the building on the lot and Dykes, who did not then have the key, agreed to obtain one for Hamlin; (3) Hamlin “showed the lot” to Dale, the showing being limited to the outside because no key was available.

November 27, 1973: Both in the morning and in the afternoon Hamlin telephoned Dykes to see if Dykes had obtained the key, but Dykes had not. Hamlin “said something about his prospect” to Dykes but did not identify the prospect. Dale crawled into the building on the lot and inspected it.

November 28, 1973: (1) Hamlin called Dykes and renewed the request for the key; (2) Ferguson talked with Webb; Webb made a verbal offer of $22,000 and gave Ferguson a $500 earnest money down payment; the down payment was in cash and not by check; (3) Ferguson telephoned Datema and informed Datema of Webb’s $22,000 offer. Datema said he would have to check with his associates and call back; (4) Hamlin called Dykes about the key; (5) Datema called Ferguson late in the afternoon and told him the Webb offer was acceptable.

November 29, 1973: (1) Dale (and his wife) signed a written contract on a form provided by Hamlin. The contract called for a purchase price of $25,500 and a real estate commission of $1,530 to be paid Hamlin “in cooperation with Raymond Ferguson Agency”; (2) Hamlin called Dykes about the key; (3) In the afternoon Hamlin telephoned Ferguson’s office and was informed Dykes was gone. Thereafter Hamlin tried to reach Ferguson at his office “every 30 minutes” and, after 6:30 p. m., repeatedly tried to reach Ferguson at his home; (4) Beal and Dale went to Ferguson’s office at 7 p. m. and told Ferguson’s secretary they wanted to talk with Ferguson; (5) Ferguson had a telephone conversation with Beal in which Beal said that he, Beal, was not interested in buying the lot. Ferguson tried, without success, to telephone Dale, Ferguson then being of the opinion that Dale was a prospective buyer; (6) At 10 p. m. Hamlin had a telephone conversation with Ferguson. The particulars of this conversation, which involve the admissibility of Exhibit F, will be treated later.

November 30, 1973: (1) Ferguson tried without success to reach Dale by telephone; (2) Ferguson dictated the Webb contract and it was typed on a form provided by Ferguson, calling for a sale of the lot to Webb for $22,000 and a commission to Ferguson of $1,320; (3) Webb went to Ferguson’s office and signed the Webb contract; (4) Ferguson went to Springfield and talked with Datema. Ferguson admitted that he told Datema that, other than the Webb contract, “I had no firm offers, people discussed it but no money up, no prospective buyers”; (5) Datema, for defendant, signed the Webb contract late Friday afternoon.

December 3,1973: (1) Datema telephoned Ferguson and said he “was dissatisfied because there had been another offer”; (2) Datema, for defendant, hired an attorney who sent a letter to Ferguson “terminating Ferguson’s authority”; (3) Defendant’s attorney interviewed Hamlin and obtained his written statement, “Exhibit F.”

In February 1974 the Webb contract was carried out except that Ferguson was not paid his commission.

The first point to be considered is whether the trial court erred in permitting the introduction into evidence of defendant’s Exhibit F, the body of which was in the attorney’s handwriting.

At the trial Hamlin testified as a witness for defendant. In most respects his trial testimony was consistent with the contents of Exhibit F. The major difference between Exhibit F and the trial testimony of Hamlin pertains to the contents of the telephone conversation which Hamlin had with Ferguson at 10 p. m. on November 29. According to Exhibit F, Hamlin told Ferguson that he, Hamlin, “had a contract for $25,500 to buy the property.” If Exhibit F was in fact inadmissible, the rest of the record falls short of containing that item of evidence.

Plaintiff’s first witness was Ferguson himself. On direct examination he testified that at no time prior to the signing of the Webb contract did he have any knowledge “of any offer of any amount from anyone other than Webb.”

On cross examination Ferguson testified that he did not know that Hamlin was showing the lot or that Hamlin had a prospective buyer. He did, however, admit having the telephone conversation with Hamlin on the evening of November 29. When asked if Hamlin told him at that time that Hamlin had a prospective purchaser, Ferguson’s nonresponsive answer was “the conversation was very short.” Pressed by defense counsel, Ferguson admitted that he did know Hamlin was showing the lot and that Ferguson was mad at Hamlin for doing so.

Ferguson also made the following admissions: he felt an obligation to Datema to get the highest price available; he had a duty “to tell my client everything I knew about the sale that might influence his decision on whether or not to sell”; if anyone else was interested in buying, it was his duty to transmit that information to the seller; he told Datema, before Datema signed the Webb contract, that he had received “no firm offers, people discussed it but no money up or firm offer that I could hope to tell him we might have a prospective buyer”; he did not tell Datema about the telephone conversation with Hamlin; although he was of the opinion that Dale was a prospective buyer, and he had failed in his attempts to reach Dale, he did not tell Datema about Dale or those attempts; if the Dale “deal” had gone through, defendant would have received, for the lot, $3,500 more than it received on the Webb contract; Ferguson’s commission under the Webb contract was about $500 more than it would have been if the Dale deal had gone through because, in the latter event, Hamlin would have been entitled to a portion of the commission.

On redirect examination Ferguson stated that Hamlin did not, in the telephone conversation, reveal “the name of any prospect or any offer he might have.”

As part of its case defendant called Hamlin as a witness. With regard to the telephone conversation, Hamlin testified that Ferguson expressed outrage that Hamlin was showing the lot without Ferguson’s permission. Hamlin said that caught him by surprise “and I don’t recall the next few words of the conversation. The last I can recall is I said I had a party that was interested in the property which I thought would be a good deal ... I felt from the indication and the tone of [Ferguson’s] voice that — and I was tired and did not want to fight any longer . . . and I just said, ‘well, if your deal does not work out would you give me a call.’ ”

On cross examination Hamlin testified that the reason he called Ferguson was to discuss the Dale contract “but I never did explain it to him.” On further questioning by Ferguson’s counsel, when asked whether he had disclosed the amount of Dale’s offer to Ferguson, Hamlin replied that he could not recall “if I did or didn’t.”

On redirect examination the witness testified that he was under medication for a heart condition. Defendant’s counsel then had Hamlin’s written statement marked as Exhibit F. Hamlin testified that he had read and signed the statement, that he had corrected it in several places and initialed the corrections, and that it was an accurate record, made on December 3, 1973, of the facts set forth in it and that those facts were true when he signed it.

Exhibit F was admitted into evidence and defendant’s counsel was permitted to read it to the jury. The trial court commented that the exhibit was “admissible for two purposes: one, it is a recorded history of past recollection at a time close to the time of the transactions in question and, second, it appears to the court that from the questions and answers and the demeanor of the witness on the stand that the witness was adverse and was not a friendly witness.”

The only objection to Exhibit F was this statement by plaintiff’s attorney: “We object to defendant’s Exhibit F for the purpose of trying to impeach his own witness.” There was no objection to the introduction of Exhibit F on the ground that it failed to qualify for admissibility as “past recollection recorded.”

On this appeal plaintiff argues that Exhibit F, and more particularly that portion of it to the effect that Hamlin told Ferguson of the $25,500 offer, “is not evidence of probative value.” Defendant relies upon a principle stated in Rogers v. Fiandaca, 491 S.W.2d 560, 565 (Mo.1973) to this effect: “[Wjhere the use of prior inconsistent statements becomes proper to impeach a witness by proof of his prior contradictory extrajudicial statements, nevertheless such statements are hearsay and they are admissible only for the purpose of impeachment and are not to be taken as substantive and affirmative proof of the facts stated therein.”

Plaintiff’s argument proceeds upon the assumption that Exhibit F was merely an impeachment device and was not substan-five evidence. It is not necessary to rule whether or not Exhibit F was used as an impeachment device and, if so, whether that use was proper under the circumstances. This is true because, as will be seen, Exhibit F was admissible as a past recollection recorded. “If proffered evidence is admissible for any purpose, it may not be excluded ... in such event the one objecting to the evidence may ask a limiting instruction, if desired.” Martin v. Mercantile Trust Co., 293 S.W.2d 319, 329[14] (Mo.1956).

Clearly under the liberal view of the rules pertaining to the admission of a memorandum as a past recollection recorded, Exhibit F was admissible and was substantive evidence. Case law and text writers disagree to some extent upon what must be shown in order to render a memorandum admissible as a past recollection recorded. The Supreme Court of Colorado has stated the general rule in the following language:

“A past recollection recorded meets the requirements for admissibility when it appears that the witness (1) can identify the memorandum, (2) adequately recalls the making of it at or near the time of the event, either as recorded by himself or by another, and (3) can testify to its accuracy.” Jordan v. People, 151 Colo. 133, 376 P.2d 699, 702 (Banc 1962).

The Colorado court held that it was not necessary to show that the witness (whose description of the facts is contained in the memorandum) must fail to have his memory refreshed by the memorandum before the memorandum itself may be read to the jury. Quoting authorities from other jurisdictions and Wigmore on Evidence, the Colorado court said at p. 703: “We are persuaded that admissibility of a past recolleetion recorded does not depend upon the absence of a present recollection.”

On oral argument on appeal, Ferguson’s counsel was asked if he took the position that any of the Missouri requirements with regard to “past recollection recorded” had not been met. In response he mentioned only the element which the Colorado court, and its line of cases, specifically rejected. Some Missouri cases dealing with “past recollection recorded” are cited below. As has been mentioned, at the trial, Ferguson’s counsel made no such objection to Exhibit F; its admissibility as past recollection recorded was not then attacked on any ground.

Hamlin identified Exhibit F, although not in his handwriting, as a memorandum signed by him, corrected and initialed by him in several places, accurately recording the facts (including the contents of the telephone conversation with Ferguson) as he knew them to be on December 3, less than four days after the conversation had taken place. This being so, Exhibit F in itself was competent and substantive evidence. Even if proof of the element rejected by Colorado be required in Missouri, it is present because Hamlin, at the trial, had no memory of whether, in the telephone conversation, he told Ferguson of the $25,500 offer. Finally, the admission of Exhibit F was a matter largely within the discretion of the trial court, State v. Johnson, 286 S.W.2d 787, 794[15] (Mo.1956) and there has been no showing of abuse of that discretion. Wigmore on Evidence (Chad. Rev.), Vol. Ill, § 755, p. 124.

Plaintiff’s second point on appeal is that the trial court erred in giving, at the instance of defendant, Instruction 4 and Instruction 6 on several grounds. Instruction 4 was a verdict-directing instruction for defendant on plaintiff’s petition.

The first alleged deficiency in Instruction 4 is that there was no evidence to support the submission “that plaintiff failed to disclose an offer to buy the lot for $25,500.” Plaintiff argues that Exhibit F was not admissible and thus there was no evidence that plaintiff knew of the $25,500 offer. This argument lacks factual support for the reason that this court has held that Exhibit F was admissible and was proof of plaintiff’s knowledge of that offer. Plaintiff admitted that he did not disclose any offer to Datema other than the Webb offer.

Plaintiff next claims that Instruction 4 required the jury to find a fact which had not been pleaded. Although plaintiff claims that there was no proof of the mentioned fact, a review of the evidence shows that it has evidentiary support. That issue, having been tried by the express or implied consent of the parties, is treated in all respects as if it had been raised in the pleadings. Rule 55.33(b).

Other alleged deficiencies in Instruction 4 need not be considered for the reason that they were neither set forth in plaintiff’s motion for new trial nor otherwise brought to the attention of the trial court. Chambers v. K. C., 446 S.W.2d 833, 840[8, 9] (Mo.1969); Bower v. Hog Builders, Inc., 461 S.W.2d 784, 797[4] (Mo.1970); Rules 78.07 and 84.13(a) Y.A.M.R.

Plaintiff’s criticisms of Instruction 6 need not be considered for the reason that Instruction 6 is not “set forth in full in the argument portion of the brief.” Rule 84.-04(e) V.A.M.R.

Plaintiff’s third point on appeal is that the evidence is insufficient to support an award of punitive damages and that Instruction 9, offered by defendant, which permitted an award of punitive damages, should not have been given. Plaintiff does not attack the form of Instruction 9, nor does he contend that the amount of punitive damages awarded was excessive. He asserts that an award of punitive damages in any amount was not justified.

In general Instruction 9 authorized an award of punitive damages if the jury found the following: when Datema signed the contract, plaintiff knew there was an offer of $25,500 to buy the lot; plaintiff knew that such information would have been material to Datema’s decision to sign the Webb contract and deliberately failed to give Datema that information; Datema would not have signed the contract if plaintiff had given him the information; such conduct on the part of plaintiff was willful, wanton, or malicious; as a direct result thereof defendant was damaged. Instruction 9 also contained a definition of the word “malicious.”

Plaintiff relies upon Smith v. Piper, 423 S.W.2d 22 (Mo.App.1967) and particularly this language appearing at p. 27: “But for narrow exceptions not present here, our courts have repeatedly held that punitive damages do not lie for breach of contract.” In Smith it was the broker himself who sought punitive damages against his seller who had bypassed the broker and dealt directly with the buyer. The factual situation in Smith is distinguishable from the one here. There was no showing, in Smith, that the seller deliberately made a misrepresentation to the broker upon which he relied to his detriment.

There existed between plaintiff and defendant a fiduciary relationship, one- of trust and confidence, under which plaintiff “was obligated to be perfectly frank” with defendant, to make full disclosure of all material facts, “to strictly avoid misrepresentation,” and “in all respects to act with the utmost good faith and fidelity” in the interest of defendant, his principal. Groh v. Shelton, 428 S.W.2d 911, 916[9] (Mo.App.1968).

“The paramount and vital principle of all agencies is good faith, for, without it, the relation of principal and agent could not well exist. So sedulously is this principle guarded that all departures from it are esteemed frauds upon the confidence bestowed.” Van Raalte v. Epstein, 202 Mo. 173, 191, 99 S.W. 1077, 1081 (1906).

In Economopoulos v. Curls, 377 S.W.2d 522 (Mo.App.1964) plaintiffs-landowners recovered actual and punitive damages against a real estate broker with whom they had listed their land for sale. The broker had informed plaintiffs that he had a purchaser who was willing to pay $7,000 when in fact the purchaser was willing to pay $9,900. The matter of punitive damages was submitted to the jury under Instruction No. 3 which told the jury that if they found the issues in favor of plaintiffs under Instruction No. 1 (the verdict-directing instruction on actual damages), and if they further found that the defendant acted willfully, maliciously and intentionally to deceive the plaintiffs, punitive damages could be assessed. The court of appeals, in affirming the awards, said that Instruction No. 3 was “in a form often approved” and added “certainly, under the evidence, the trial court committed no error in giving it.” See also Sunset Acres Motel, Inc. v. Jacobs, 336 S.W.2d 473, 483[17] (Mo.1960).

Other jurisdictions which have considered the matter have approved the awarding of punitive damages in actions brought by a principal against a real estate broker who proved faithless to his trust. Brown v. Coates, 102 U.S.App.D.C. 300, 253 F.2d 36 (1958); Security Alum. Wind. Mfg. Corp. v. Lehman Assoc., Inc., 108 N.J.Super. 137, 260 A.2d 248 (1970); Briggs v. Rodriguez, 236 S.W.2d 510 (Tex.Civ.App.1951). See 67 A.L. R.2d 952 (right of principal to recover punitive damages for broker’s breach of duty) and 7 A.L.R.3d 693 (liability of real estate broker to principal for concealing or failing to disclose offer).

The author of the opinion in Brown is now Chief Justice of the United States. At p. 39 the court said:

“For breaches of contract standing alone, punitive damages are generally not recoverable. Moreover, it is axiomatic that punitive damages are ‘not favored.’ Some courts have refused to allow the imposition of punitive damages in any contract actions, regardless of the types of contracts involved or the circumstances surrounding their breach.”

“We join with those courts which decline to follow such mechanical classification. We believe the better view to be that in certain, narrowly defined circumstances, where a breach of contract merges with, and assumes the character of, a wilful tort, calculated rather than inadvertent, flagrant, and in disregard of obligations of trust punitive damages may be assessed.”

The Brown court pointed out that it was not adopting any “single particular formula” in upholding punitive damages against a faithless agent, and that each case must be considered on its own peculiar facts. The court then added at p. 40: “But once it has been shown that one trained and experienced holds himself out to the public as worthy to be trusted for hire to perform services for others, and those so invited do place their trust and confidence, and that trust is intentionally and consciously disregarded, and exploited for unwarranted gain, community protection, as well as that of the victim, warrants the imposition of punitive damages. . . . Punitive damages are particularly apt in such circumstances because they both punish the wrongdoer, and offer the wronged a greater incentive to bring derelicts to justice, a process which can subject the victim to considerable expense and trouble.”

From the evidence the jury could find that Hamlin told Ferguson that he had a contract for $25,500 to buy the lot; that the following day Ferguson, with knowledge of the existence of that offer, made no mention of it to Datema and in fact told Datema that no such offer existed; that Datema, relying on that misrepresentation, executed the Webb contract and thereby sustained an actual loss by not taking advantage of the higher offer. Under the foregoing authorities, the award of punitive damages was justified.

The judgment is affirmed.

All concur.

      . See Mooney v. Terminal R. Ass’n of St. Louis, 352 Mo. 245, 176 S.W.2d 605, 611[13, 14] (1944); State v. Castino, 264 S.W.2d 372, 375[6] (Mo.1954).
      If Exhibit F was properly used as an impeachment device, authority exists to the effect that the failure of Ferguson’s attorney in the trial court to request an instruction limiting the purpose and effect of Exhibit F to impeachment only deprives plaintiff of the right to complain on appeal “of any affirmative probative force the jury may have attributed to the impeaching statement.” Fisher v. Williams, 327 S.W.2d 256, 262[9] (Mo.1959).

      . See 29 Am.Jur.2d Evidence §§ 876, 877, p. 976; Anno. 82 A.L.R.2d 473 at p. 525 et seq.; McCormick on Evidence (2d) § 299, p. 712; Jones on Evidence, 5th Edition, Vol. 4, § 974, pp. 1831, 1833, note 18; Wigmore on Evidence (Chad. Rev.), Vol. Ill, pp. 77-125.

      .Wigmore on Evidence (Chad. Rev.), Vol. Ill, § 738, p. 91, in discussing past recollection recorded says: “A faithful memorandum should be acceptable, not conditionally on the total or partial absence of a present remnant of actual recollection in the particular witness, but unconditionally, because, for every moment of time which elapses between the act of recording and the occasion of testifying, the actual recollection must be inferior in vividness to the recollection perpetuated in the record.”
      In semi-support of that statement Wigmore cites State v. Harris, 334 Mo. 38, 64 S.W.2d 256 (1933). Wigmore says: “Thus, even though the witness has testified from present recollection, it should be permissible also to introduce a book or memorandum which satisfies the ensuing rules. This record serves to corroborate his present testimony; common sense dictates this.” Wigmore summarizes the ruling in Harris: “Robbery; on the issue of alibi, a radio repairman in another city testified by deposition that the accused was in his shop on the day in issue; the repairman’s account book was then admitted.”
      Referring to the requirement of the absence of present recollection Wigmore says: “It should be regarded as an inferior qualification unknown to the orthodox doctrine and unapproved by good sense.”

      . Watson v. Meredith Development Co., 410 S.W.2d 338, 341 [4, 5] (Mo.App.1966); State v. Patton, 255 Mo. 245, 164 S.W. 223, 225, 226 (1914); Eberson v. Continental Investment Co., 130 Mo.App. 296, 109 S.W. 62, 66 (1908). These cases discuss the distinction between use of a memorandum to refresh a witness’s present recollection and introduction of a memorandum as past recollection recorded.

      . Wigmore on Evidence (Chad. Rev.), Vol. Ill, § 748, p. 101: “[T]estimonial assertion of correctness being all that is needed, it is generally immaterial whether the witness was or was not the person who actually wrote or printed the record. It may have been manually prepared by another; but from the moment when the witness saw it and passed judgment upon its correctness, it became for him a correct record. As the mere fact of his writing it would count for nothing in itself, so the mere fact of his not having been the writer is immaterial.”
      To similar effect see 81 Am.Jur.2d, Witnesses, § 452, p. 460.


author: HOGAN, Judge.

text:
    Alonzo Hansford MORRIS, Jr., Plaintiff-Appellant, v. Dorothy Mildred MORRIS, Defendant-Respondent.
    No. 10061.
    Missouri Court of Appeals, Springfield District.
    March 28, 1977.

      Arthur B. Cohn, Waynesville, for plaintiff-appellant.
    Wm. C. Morgan, Waynesville, for defendant-respondent.
   HOGAN, Judge.

This is an action to modify the child support provisions of a divorce decree entered on June 15, 1971. The decree awarded custody of two young daughters to the defendant and provided $100 per month for their support. Alleging that plaintiff’s income had increased substantially, that the parties’ joint debts and obligations had been discharged, that the cost of maintaining and educating the children had increased substantially and that she was now required to expend large sums of money to care for the children, defendant prayed that the amount of child support be increased to $175 per child per month. The trial court increased the amount of maintenance to $110 per month per child and the plaintiff now appeals.

The evidence was that at the time the divorce was granted, plaintiff, who is in the United States Army, earned $732.60 per month. The defendant was employed as a telephone operator; she earned $65 to $75 per week. Both parties have remarried. Defendant no longer works; she keeps house for her present husband and cares for the children who, by our calculation, are 15 and 13 years old at this writing. Plaintiff has no other children. Defendant’s evidence indicated that the parties had substantial joint debts at the time they were divorced, and that the plaintiff has now paid those debts.

Defendant testified that she and her present husband Louis Seo live in Chester, Virginia. Mr. Seo is employed by ABC Rental Systems, Inc., in Richmond, and earns $1,215.24 per month. He and defendant purchased a three-bedroom frame house in August 1973. Their house payment is $249.50 per month. Their utilities payments “average” a little over $80 per month, and they spend “probably around” $300 per month for food. In addition, defendant testified that her children require $1.08 per day for school lunches, $50 per month for clothing, “average over a year”, and that, of course, “both of them need braces." The orthodontist will charge $2,150 for both children; defendant has made a “down payment” of $537.50, and will be obliged to pay the balance at the rate of $62 per month. The younger child requires glasses, which cost $55 per pair. The elder child takes piano lessons, which cost $15 per month. School supplies “average ten dollars a month [defendant] would say.” Averaging out all her household expenses, defendant estimated that the cost of caring for her children came to $507 per month. Both children have “ID” cards which entitle them to use the post exchange and commissary at Fort Lee, which is near defendant’s residence.

Plaintiffs evidence was that he remarried on June 25, 1971. He is a Sergeant First Class, what is called an “E-7”. He has been in military service almost 14 years; his service arm is not shown. Plaintiff’s total “entitlement” is $1000.81 per month. He confirmed that after the divorce, he paid a number of debts he and defendant had incurred. Plaintiff now lives in a “mobile home”; the payments on that mobile home run $127.57 per month. After deductions, including a car payment, motorcycle payment and furniture payment, plaintiff’s “spendable” income amounts to $715 per month. His living expenses are $43 per month for “trailer space" and his utilities come to $65 per month. Plaintiff is not obliged to, but does live “off post” and he makes two trips to the post each day. In consequence, his expenses for fuel run “approximately” $45 per month for the two vehicles he and his wife own and maintain. Food for plaintiff and his wife comes to $130 per month, and he is repaying a “vacation loan” at the rate of $65 per month. He owes other debts (car repair and attorney’s fees) in the amount of $700 to $800 “roughly”. The substance of plaintiff’s testimony was that he is now living beyond his means and could not possibly pay any additional child support.

In this court the plaintiff raises two points. Citing us to § 452.370, subd. 1, RSMo Supp.1975, and to McGinley v. McGinley, 513 S.W.2d 471, 473 [2] (Mo.App.1974), plaintiff contends there is no evidence to support a finding of changed circumstances so substantial and continuing as to make the terms of the original decree unreasonable. We cannot agree. Courts know judicially that parents attempting to rear children have been harassed by spiraling inflation, Jackman v. Jackman, 533 S.W.2d 361, 363-364 [6, 7] (Tex.Civ.App.1975), and there was evidence that the children have now become adolescent and that their needs have increased. The children’s talents should be developed, and their dental and medical needs must be attended to. All in all, the record is sufficient to warrant an increase in support allowances. Walter v. Walter, 544 S.W.2d 271, 273 [3] (Mo.App.1976); McGinley v. McGinley, supra, 513 S.W.2d at 473 [4]; Smolly v. Hoffman, 458 S.W.2d 579, 581 [3, 4] (Mo.App.1970).

Plaintiff’s additional point on appeal is that the award of child support is beyond his means, and here he invokes the indubitably sound principle that an award of child support should not be so great as to destroy the father’s incentive or impair his position. See, e.g., Rodgers v. Rodgers, 505 S.W.2d 138, 146 [13] (Mo.App.1974); Houston v. Snyder, 440 S.W.2d 156, 161 [11] (Mo.App.1969). It is true, we think, that at the time this case was tried, the plaintiff’s income barely met his expenses and debts, but the record also makes it plain that some of plaintiff’s newly acquired debts are the result of self-indulgence, rather than the product of necessity. Moreover, both parties, so far as we can determine, asserted a good many items of expense without supporting documentation, and in a case of this kind the parties’ “estimates” and approximations of their needs are properly subject to being discounted by the trial court. Houston v. Snyder, supra, 440 S.W.2d at 159 [4]; Annot., 1 A.L.R.3d 324, 338-339, § 8[c] (1965). We reiterate that the amount awarded is subject to review only to determine whether there has been an abuse of discretion or an erroneous application of the law. In re Marriage of Schulte, 546 S.W.2d 41, 46—47 [4], and authorities collated n.7 (Mo.App.1977). We are not convinced that the increase is wholly beyond the plaintiff’s means nor that the trial court has erroneously applied the law, and accordingly the judgment is affirmed.

All concur.

      . Which reads, as here material: “[T]he provisions of any decree respecting maintenance or support may be modified . . only upon a showing of changed circumstances so substantial and continuing as to make the terms [of the original decree] unreasonable.”