author: KELLY, Judge.

text:
    W. Donald DUBAIL et al., Plaintiffs-Appellants, v. GREEN TRAILS PLAZA, INC., Defendant-Respondent.
    No. 39825.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 11, 1979.

      Gunn & Gunn, P. C., James F. Gunn, Patrick R. Gunn, Sharon Wice, Creve Coeur, for plaintiffs-appellants.
    Schramm, Pines & Marshall, Paul H. Schramm, M. Harvey Pines, Clayton, for defendant-respondent.
   KELLY, Judge.

In this appeal from a judgment of the Circuit Court of St. Louis County, the appellants, (plaintiffs in the trial court) Donald Dubail, Phillip Newmark and Ned English, as the Trustees of Ladue Trail Subdivision, instituted this cause of action for the purpose of obtaining an injunction restraining the respondent, Green Trails Plaza, Inc., from constructing a proposed medical office complex on Lot 7, Plat 2 of the subdivision. The respondent filed a counterclaim for declaratory judgment adjudicating the respective rights and duties of the parties under the terms of a Sub-Indenture of Deed Restrictions of Ladue Trails Subdivision, Plat No. 1 and Lot 7, Plat 2. The trial court entered judgment against the appellants, denying the injunction sought in their petition, and in favor of the defendant on its counterclaim. The judgment declared that defendant is authorized and permitted to continue to develop Lot 7 for professional medical services in accordance with the amended Final Development Plan for said Lot as recorded in Plat Book 161, pages 72 and 73 of the St. Louis County records, or for any other commercial purpose not inconsistent with the terms of the Sub-Indenture.

We affirm.

Green Trails Plaza, Inc., owns Lot 7 of Plat 2 of Ladue Trails Subdivision. There are seven lots in Plat 2 of this subdivision and Lots 1 through 6 are improved with a development known as the Green Trails Country Club, consisting of a golf course, swimming pool, tennis courts, a clubhouse, snack bar, and golf pro shop. Lot 7 is bordered by that part of Lot 6 being used as the golf course, by common lands of the Village of Green Trails, Ladue Road, and Lot 271 of Trails West Subdivison. Lot 7 has been zoned C-8 (planned commercial) since 1966, and Lots 270 and 271 of Trails West Subdivision are also zoned C-8. Lot 270 contains a number of commercial enterprises, including a filling station. There are 8 Plats of Ladue Trails Subdivision and Lot 7 is separated from the lots in Plat 1 and Plats 3-8 by Ladue Road. Ladue Road is a dedicated roadway 60 feet wide. None of the lots in Plat 1 exceed two acres in size; all of the lots in Plat 2, including Lot 7, exceed two acres.

All of the lots in the Village of Green Trails, including Lot 7 are governed by an Indenture of Restrictions which provides in part:

Whereas, the Owners have caused Metron Inc. to design a Master Plan for the development of the Village in accordance with the program of the Owners, and
Whereas, the Owners are agreed to subject their individual properties which comprise the Village to the terms of this Indenture in order to fulfill and accomplish the purposes of the aforesaid Order and Master Plan, as the same is now in force and effect or may hereafter be amended; and
Each Sub-Indenture shall contain appropriate provisions for the Park Trustees to assess each lot in a subdivision not more than $50.00 per improved residential lot and not more that $10.00 per unimproved residential lot per annum; on multi-family lots the assessment shall be computed at not more than $25.00 for each separate apartment authorized and built and not more than $10.00 for each separate apartment authorized and not built (the term “apartment” as used herein shall mean a single dwelling unit per family); on lots which are zoned or developed commercial or institutional (including a bath and tennis club, if any), the assessment shall be not more than $200.00 per lot; on “estate lots” (i. e. lots of 2 acres or more in size) the assessment shall not be more than $50.00 per annum; on the estate lot area which is developed as a resort lodge (if any), the assessment shall not be more than $400.00 per annum, if built.

A Sub-Indenture of Deed Restrictions, that of Ladue Trails Subdivision, also applies to all of the lots in said subdivision, including Lot 7. This Sub-Indenture is identified as Sub-Indenture of Deed of Restrictions of Ladue Trails Subdivision for Plat I. The appellants derive their powers from this latter Sub-Indenture, which provides in part:

“WHEREAS, it is the purpose and intention of this Sub-Indenture to preserve the remainder of said tract of land, not including the “Common Land,” as a restricted neighborhood and to protect the same against certain uses by the adoption of a common neighborhood plan and scheme of restrictions, and to apply that plan and restriction not only to all of said land and every parcel, but also in favor of or against said parcel as against or in favor of all other parcels within said residential area in the hands of the present or subsequent owners thereof, and mutually to benefit, guard and restrict present or future title holders or occupants of any or all of said parcels and to foster the health, welfare, safety and morals of all who own or reside in said area.
(The trustees have the right) to consider, approve or reject any and all plans and specifications for any and all buildings or structures, fences, detached building, swimming pools or tennis courts proposed for construction and erection on said lots .
Lots of two acres or less in residential subdivisions platted of record may only be improved with houses for residential purposes. Such residential structures may not be used for commercial purposes, and shall otherwise comply in all respects with the applicable zoning ordinance.
No nuisances or noxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood. No saloon, tavern, filling station or other commercial business may be conducted on said property. No building or premises shall be used for purposes prohibited by law or ordinance, and nothing shall be done which may be or hereafter become a nuisance to the owners of said lots.
No sign of any kind shall be displayed to the public view on any lot except one professional sign of not more than five square feet advertising the property for sale or rent, or signs used by a building to advertise the property during the construction and sale period.
. On lots which are zoned or developed commercial or institutional (including a bath and tennis club, if any), the assessment shall be not more than $200.00 per lot.

This litigation is an attempt to resolve whether all forms of commercial development on lots in the Ladue Trails Subdivision is prohibited by the language in the Sub-Indenture of Deed Restrictions of La-due Trails Subdivision that “No saloon, tavern, filling station or other commercial business may be conducted on said property.”

The evidence showed that a former owner of Lot No. 7 had submitted plans for commercial development of the property to the Trustees for approval. The Trustees, in a letter on Trustee stationery and over the signature of Mr. Newmark as Chairman of the Trustees, notified the applicant that the plans were rejected for the reason that the site and grade plan information had not been supplied with the application. The letter also contained this sentence: “We certainly would not want you to construe this letter as any opposition to the commercial development of the area.” According to the letter, copies went to the two other trustees, Mr. Dubail and Mr. R. C. Hellwig.

Five months later, Mr. Dubail, by letter, informed the same owner that the Sub-Indenture prohibited all forms of commercial development on the lot. This letter too was on Trustees’ stationery.

In 1974, the owners of all of the lots in Plat 2 signed an agreement to terminate the application of the Sub-Indenture of Deed of Restrictions to Ladue Trails Subdivision Plat 2, demonstrating that the owners of the lots in Plat 2 have no objection to the commercial development of Lot 7. According to the terms of the Sub-Indenture it can be amended or discontinued by a written agreement signed by the “record owners of the fee simple of ⅜ of the lots in the subdivision then included under the terms of (the) indenture;” when sufficient signatures have been obtained, the Trustees are required to certify and acknowledge the written agreement discontinuing any of the restrictions contained therein. When the agreement is recorded in the office of the Recorder of Deeds of St. Louis County the discontinuance becomes effective.

The Trustees did not certify and acknowledge the written agreement discontinuing the restriction aforesaid. On April 12,1976, ten months after the institution of this cause of action on June 10, 1975, they filed an affidavit in the Recorder of Deeds office of St. Louis County, renouncing the owners’ written agreement.

With respect to the operation of the golf course and its facilities as a business open to the public, the only Trustee who testified in person at trial, was Mr. Dubail, who had been a Trustee for approximately 8 years. He denied any knowledge that the golf course and facilities used in connection therewith were open to the public or were operated for profit; rather, he testified that he had stopped any commercial operations on Lots 1 through 6, Plat 2 of Ladue Trails Subdivision whenever he became aware of such activities. He cited three instances where, as a Trustee, he took action to stop commercial activities in the subdivision, all in relation to the clubhouse located on Lot 1, Plat 2 of the subdivision. The first of these was when a Mr. Olfe attempted to obtain a liquor license for the operation of a bar in the clubhouse. The Trustees engaged the law firm representing them in this case to appear before the St. Louis County Council to oppose the issuance of a liquor license to Mr. Olfe. No license was granted to Mr. Olfe and the bar did not operate under his ownership. The second instance involved “The Golden Door,” an activity which was to be operated in the clubhouse; the Trustees authorized their attorneys to take action and oppose it. A third activity successfully opposed by the Trustees which would have used the clubhouse for commercial activities was the D.F.&L. Caterers. The Trustees also sent a letter to Mr. Raisher opposing the operation of a seminar by the A. G. Edwards Company in the clubhouse on Lot 1 of Plat 2 of Ladue Trails Subdivision. According to Mr. Dubail, a “commercial activity” is one conducted for profit.

The respondent produced three witnesses and read into the record, as an admission against interest, portions of the deposition of Mr. Phillip Newmark, the Chairman of the Trustees of the Subdivision.

Respondent’s first witness, Frank Raisher, is the president of the L and R Development Corporation, the owner of Lot 1 of Ladue Trails Plat 2, and vice-president of the Ladue Land Corporation, owner of Lots 2 through 6 of Plat 2 of the subdivision. Ladue Land Corporation is incorporated under the Missouri for-profit corporation laws. He was also one of the developers of Ladue Trails Subdivision and he was involved in the sale of lots in Ladue Trails Subdivision, Plat 1, when it was in the development stage. He identified Exhibit A to the Stipulation of Facts as a copy of a plan under which the Village of Green Trails was built, including Plat 2 of Ladue Trails Subdivision. According to this plan Lot 7 was designated commercial, “proposed neighborhood shopping.”

According to his testimony, the clubhouse, a swimming pool, and two tennis courts occupy Lot 1 of Plat 2 of the Ladue Trails Subdivision. L & R Development Corporation acquired Lot 1 in November, 1975, from Mr. Olfe and continued the operation of the previous owner, leasing the premises for private parties, weddings, and similar functions. He is the manager of the clubhouse, which contains some 14,000 square feet. There is a snack bar in the ground level of the clubhouse which is open to the public. Hamburgers and hot dogs may be purchased there, and it is patronized by those persons using the facilities or anybody who comes onto the premises to make a purchase in the snack bar. There is also a pro shop in the clubhouse which is operated by the golf pro, Ken Sample, who has the concession for the merchandise sold there. Mr. Sample collects the greens fees and cart fees. The pro shop is open to the public.

The tennis courts and the swimming pool are open to the public; their use is not restricted to persons who own lots or homes in the subdivision. A family membership costs $185.00 and guests may enjoy swimming pool privileges for $2.00 per guest. The pool is available to the public and to those who are holders of a membership, between Decoration Day and Labor Day. The tennis courts are open whenever the weather permits. The entire operation is geared towards realizing a profit.

Mr. Raisher testified that the owner of the golf course is the Ladue Land Corporation. The course is located on Lots 2 through 6 of Plat 2 of the Ladue Trails Subdivision and consists of 9 holes. The corporation has a “permit” for the operation of a gold course. The golf course was built in 1965 or 1966, and has been in operation for approximately 11 years. It has always been operated as a public golf course and its use has never been restricted to those persons who own lots or homes in either Ladue Trails Subdivision or the Village of Green Trails. “Anyone who had the greens fee can come and play.” The facilities and the availability of memberships have been advertised in the news media of the St. Louis Metropolitan area for a number of years. An annual membership is sold for $200.00, entitling one to unlimited play without payment of greens fees. With the payment of an additional $90.00 per year, an individual may also obtain for a wife or child under age 21, the same privileges which attach to the annual membership. He personally knows that Mr. Newmark, one of the plaintiffs in this suit and a member of the Trustees, played the golf course and paid greens fees for the privilege.

Regarding the letter Mr. Dubail sent concerning the A. G. Edwards Investment Seminar, Mr. Raisher testified that he had rented some space in the clubhouse to A. G. Edwards & Company for a meeting. He had received the letter from the Trustees signed by Mr. Dubail, advising him that this use of the property was in violation of the Sub-Indenture, “the other day during the course of this trial here.” This was the first letter the Trustees had ever sent to him in the ten years he had been managing the business.

The next witness offered by the respondent at trial was Michael M. Levinson who testified that he was an officer of the corporation owning Lots 1 through 6 of Plat 2 of the Ladue Trails Subdivision and that his testimony with respect to the use of Lots 1 through 6 would be “substantially” the same as that given by Mr. Raisher. He too handled the sale of some of the lots in Ladue Trails Subdivision during the course of its development. During that period he talked with both Mr. Dubail and Mr. New-mark while they were negotiating the purchase of homes in the subdivision. At the time Mr. Dubail was negotiating the purchase of his home the country club and golf course were both in operation. He also communicated to Mr. Dubail the fact that Lot 7 was for commercial development, and that Lots 1 through 6 were being operated as a golf course, a country club, and as a profit making venture. He and Mr. Raisher appointed Mr. Dubail a Trustee for the subdivision. He had similar discussions with Mr. Newmark prior to the time Mr. New-mark bought into the subdivision. Up until the time Mr. Newmark joined Meadow-brook Country Club, according to Mr. Le-vinson, he used the Green Trails County Club facilities “tremendously” and was a very active participant in all of the activities of the Club.

Ken Sample, the golf pro at the Green Trails Country Club, testified that he was employed as the golf professional at the Country Club and in connection with his occupation operated a “specialty shop” selling golf balls, golf clubs and all kinds of golf accessories. He said his shop was open to the public and that his customers were made up of residents of homes and apartments in Green Trails as well as others who were non-residents. He has the concession for the pro shop merchandise and carries a $6000.00 inventory in golf equipment. He operates his business for profit. He also gives golf lessons for a fee and does not restrict this service to those who are residents of the subdivision; he gives lessons to anyone, regardless of where the person lives. He conducts this business under contract with Mr. Raisher and Mr. Levinson. He operates the golf course, collects the greens fees and dispenses the electric gold carts. He does not own the golf carts; the greens fees belong to his employers. He has no other employment.

Those portions of the deposition of Mr. Newmark read into evidence concerned his knowledge that the golf course and clubhouse operation on Lots 1 through 6 of the subdivision were open to the public for a fee. He acknowledged, in the deposition, that he knew the tennis courts, the swimming pool and the golf club could be used by a member of the public who purchased a membership in the Club even though that person was not a resident of the Village.

The respondent introduced the tax records of the Village of Green Trails which showed that the owner of Lot 7 paid a $200.00 tax assessment for the years 1970 through 1976, and that an assessment of $200.00 had been levied on Lot 7 for 1977. The 1977 assessment, which becomes due annually in April, had not been paid as yet. According to the Joint Stipulation of Facts the appellants had levied an assessment against the same property of $25.00 per year for the years 1969 through 1976, and each of these assessments had been paid by the owners of Lot 7.

At the conclusion of respondent’s evidence Mr. Dubail was called to the stand in rebuttal; he testified that the assessments for Lots 1 through 6 of Plat 2 of Ladue Trails Subdivision had been paid through 1975. He denied that Mr. Levinson had discussed with him the commercial nature of Lot 7 at any time prior to the purchase of his home or prior to his appointment as a Trustee of the Subdivision.

On appeal, the appellants present four Points Relied On as grounds for reversing the judgment of the trial court, and pray for an order of this court permanently enjoining the respondent from continuing construction of a commercial development on Lot 7, or in the alternative, for an order remanding the cause to the- Circuit Court of St. Louis County for further proceedings.

Appellants’ First Point Relied On is that the trial court erred in its conclusion that the Sub-Indenture of Deed Restrictions of Plat 1 of Ladue Trails Subdivision, as it extends to Plat 2 thereof, does not restrict all types of commercial development in said Subdivision because the trial court’s conclusion (a) was founded upon evidence improperly admitted in violation of the parol evidence rule, and (b) is clearly contrary to the evidence.

With respect to the first sub-point— i. e., the admission of improper evidence in violation of the parol evidence rule — nothing is preserved for review. Appellant has failed to set out in this Point Relied On what evidence it is that was admitted in violation of the parol evidence rule. Thum-mel v. King, 570 S.W.2d 679, (Mo. banc 1978); Rule 84.04(d).

The second sub-point of Point I, as we gather from reading the Argument portion of appellants’ brief, revolves around the issue of whether the trial court’s conclusion is contrary to the evidence because the Sub-Indenture Deed of Restrictions of Ladue Trails Subdivision expressly prohibits all types of commercial development in the Subdivision.

The thrust of appellants’ argument in its brief as well as in oral argument before this court is that the Sub-Indenture Deed of Restrictions is clear and unambiguous and therefore the trial court could not employ evidence to explain an ambiguity in deciding whether Lot 7 might be developed commercially. The particular paragraph appellants refer to is found in Article VI, Paragraph 6 of the Sub-Indenture:

No nuisances or noxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood. No saloon, tavern, filling station or other commercial business may be conducted on said property. No building or premises shall be used for purposes prohibited by law or ordinance, and nothing shall be done which may be or hereafter become a nuisance to the owners of lots. (Emphasis supplied).

As we have previously concluded, ti ■’ question of whether extrinsic evidence was admissible has not been preserved for review by reason of the failure of the appellants to comply with the dictates of Rule 84.04(d). Therefore, in deciding whether the conclusion that Lot 7 might be developed for professional medical offices is supported by the evidence in the case we must view the evidence in its totality, including that evidence which appellants contend should not have been admitted.

Our review of non-jury cases is controlled by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) and the decree or judgment of the trial court will be sustained unless there is no substantial evidence to support it, unless it erroneously declares the law, or unless it erroneously applies the law; and our power to set aside a decree or judgment on the ground that it is “against the weight of the evidence” must be exercised with caution and with a firm belief that the decree or judgment is wrong. We conclude that the judgment of the trial court is not wrong.

It is clear from the evidence that Plat 2 of Ladue Trails Subdivision is governed by the Indenture of Restrictions of the Village of Green Trails, and this Indenture does not contain any language expressly prohibiting commercial development of the lots in the Village. Other subdivisions in the Village governed by the Indenture, notably Trails West Subdivision, contain lots which have been developed commercially. This Indenture also provides for vote allocation to “non-residential” lots in the Village, and for an assessment of lots “zoned or developed commercial.” The assessment for residential lots is $50.00, and for lots zoned or developed commercial, $200.00. The Indenture provides that the Village be developed in accord with a Master Plan and that the owners of property in the Village agree to conform their ownership to the terms of the Indenture in order to fulfill the purposes' of the Master Plan. According to the Master Plan, Lot 7 is marked for development as a shopping center.

Plat 2 of Ladue Trails Subdivision is also governed by the Sub-Indenture to Plat 1 of Ladue Trails Subdivision. This Sub-Indenture provides:

Lots of two acres or less in residential subdivisions platted of record may only be improved with houses for residential purposes. Such residential structures may not be used for commercial purposes, and shall otherwise comply in all respects with the applicable zoning ordinance.

All of the Lots in Plat 2, including Lot 7, are platted in excess of two acres; those in Plat 1 are two acres or less.

Although the “Whereas” clause of the Sub-Indenture, supra, refers to the area as a “residential area” and a “restricted neighborhood,” it does not contain any express restrictions. Restrictions against the commercial development of property, if they exist, must be found in other parts of this Sub-Indenture.

The only specific restriction in the Sub-Indenture on the commercial development of lots is that found in Article VI, Paragraph 6, supra. It is this paragraph respondent contends is ambiguous. The particular words so labeled are “other commercial business.” In a narrow sense, the term “commercial” includes only those enterprises engaged in buying and selling of goods and services. The term has been held to mean “a place where commodities are exchanged, bought or sold.” State ex rel. Kansas City Power & Light Co. v. Smith, 342 Mo. 75, 111 S.W.2d 513, 515 (banc 1938). In its broad sense, however, it has been held to comprehend all businesses. Reiser v. Meyer, 323 S.W.2d 514, 521 (Mo.App.1959).

However, in the context of Article VI, Paragraph 6 of the Sub-Indenture, the words “or other commercial business” do not stand alone; rather, they may be considered part of a class of businesses described by the preceding terms, “. . . saloon, tavern, filling station . . . ;” to ascertain their meaning the rule of ejusdem generis may be employed. Had the Sub-Indenture meant to prohibit all commercial activity it could have so stated and no mention of specific commercial uses like “saloon, tavern, filling station . . . ” would have been necessary. The common thread running through the businesses specifically named is that they may constitute “nuisances or noxious or offensive activities)” if not conducted carefully and in good taste. The entire paragraph in which these classifications appear is directed against nuisances or noxious or offensive activity and businesses which, by their very nature, may constitute a nuisance or a noxious or offensive activity. There is no evidence in this record that the commercial use sought to be restrained in this case fits into that category of commercial development.

The conduct of those affected by the Sub-Indenture leads to the same conclusion. The owners of all of the other lots in Plat 2 have no objection to the commercial development of Lot 7. A prior owner planned the development of this lot for commercial purposes and although his plans were thwarted by the Trustees the reason given was not the fact that a commercial development was planned. Confusion prevailed among the Trustees as to whether this lot could be developed commercially. Mr. Newmark, the Chairman of the Trustees, in denying an application to develop the lot commercially, stated “We (the Trustees) certainly would not want you to construe this letter (of rejection of the plans for commercial development) as any opposition to the commercial development of the area.” We conclude that there is substantial evidence supporting the judgment of the trial court and rule this Point against the appellants.

Appellants’ second Point Relied On is that the trial court erred in reaching the conclusion that to enjoin commercial development of Lot 7 would deny respondent equal protection of the law in violation of the Fourteenth Amendment of the United States Constitution.

It is not necessary that we decide whether the trial court erred in its finding that respondent’s equal protection rights were violated. The trial court’s judgment can be sustained on the grounds that the Sub-Indenture Deed Restriction is inapplicable to the construction of a medical office complex on Lot 7 as we have hereinabove held.

Appellants’ Third Point Relied On — that the trial court erred in overruling their objection to the use of portions of the deposition of Phillip R. Newmark — is likewise without merit.

Mr. Newmark is a named party-plaintiff in this litigation and a member of the Trustees of the Ladue Trails Subdivision seeking an injunction to enforce the restrictions in the Sub-Indenture on Lot 7. One of the issues was whether the Trustees knew of the commercial operations being conducted on Lots 1-6 of Plat 2 of the Subdivision. Those portions of his deposition read into evidence were offered for the purpose of showing his knowledge of these activities and the failure of the Trustees to enjoin those uses.

In Missouri the use of depositions at trial is authorized by Rule 57.07(a). A distinction is made between the deposition of a party to the litigation and the deposition of a non-party witness. In the case of a party, or of anyone who at the time of the taking of the deposition was an officer or managing agent, or a person designated under Rule 57.03(b)(4) or 57.04(a) to testify on behalf of a public or private corporation, partnership, or association or governmental agency which is a party, his deposition may be used by an adverse party for any purpose. Where the deposition is that of a non-party witness and said witness is not present in court, then the provisions of Rule 57.07(a)(3) control, and the party wishing to use the deposition must satisfy the trial court that the deposition is admissible by reason of one of the five grounds set out therein.

At trial appellants objected to the use of Mr. Newmark’s deposition on the grounds that Mr. Newmark was available and could have been subpoenaed and the respondent had shown no reason why Mr. Newmark could not have been brought in. Appellants’ objections are directed to Rule 57.-07(a)(3) and the use of a non-party witness’ deposition. Respondent’s counsel retorted that he was using the deposition as admissions against interest because the deponent was a party plaintiff. The trial court overruled the objection stating “. . . he’s a plaintiff in a representative capacity, this testimony is given by him individually.” In this court the appellants argued that Mr. Newmark was deposed as both a party and as a witness, and that some information obtained from him was that which he garnered in his individual capacity and some in his capacity as a representative of his fellow Trustees. From this appellants argue that Mr. Newmark’s knowledge of the commercial activities conducted on Lots 1 through 6 of Plat 2 of Ladue Trails Subdivision was knowledge gained as an individual golfer, and it was not admissible as knowledge acquired by him in his capacity as a Trustee. Appellants argue:

Appellants are firmly convinced that counsel for the Respondent, while taking Mr. Newmark’s deposition, asked him to step aside from his position as Trustee and answer certain questions in his capacity as a golfer and user of the facilities. After getting that information from him as an individual witness to the occurrences on Lots 1 through 6, counsel for the respondent then asked Mr. Newmark to again step into his shoes as a Trustee and to answer a series of questions concerning whether or not any of the elements of the use of Lots 1 through 6 were prohibited by the Sub-Indenture, of which he would have particular knowledge as a Trustee.

No authority is cited to support this argument nor is there any portion of the deposition in this record which might support an argument on these grounds. We refuse to make the distinction between knowledge acquired by a trustee concerning the commercial activities conducted on Lots 1 through 6 of Plat 2 in his individual capacity and that acquired by him in his representative capacity.

We hold that those portions of Mr. New-mark’s deposition which the respondent read into evidence as admissions against interest were properly admitted pursuant to the provisions of Rule 57.07(a)(2) for any purpose.

Appellants’ final Point Relied On is that the trial court erred in overruling their objection to the introduction into evidence of Exhibit A — 2 to the Joint Stipulation of Facts because said Exhibit was (1) immaterial and irrelevant, and (2) violated the pa-rol evidence rule in that it dealt with the proposed use of certain land in the Village of Green Trails and did not deal with the actual use of the land nor with the subsequently adopted Sub-Indenture of Deed Restrictions for Ladue Trails Subdivision.

Exhibit A-2 is a plan of the Village of Green Trails filed as a part of the Joint Stipulation of Facts prior to trial and identified therein as the Master Plan for the development of the Village of Green Trails. The Joint Stipulation of Facts commenced:

Comes now Plaintiffs and Defendants and herewith submit the following Stipulation of Facts, including all Exhibits attached hereto in this cause for judgment on the issues raised by the pleadings and motions between them. Any objections stated herein goes (sic) solely to relevancy and materiality, and if said objection is sustained, the stipulated fact shall be taken as an offer of proof which the Court has rejected, to which the offeror has taken exception. All recorded documents shall be considered as stipulated evidence just as the exhibits attached hereto. (Emphasis supplied).

No objections are stated in the Joint Stipulation of Facts as it appears in the record in this court. At trial, during the direct examination of Mr. Raisher in respondent’s case, Mr. Raisher was asked to testify to what use Lot 7 was assigned on the Master Plan. Appellants’ trial counsel objected on the grounds that to permit Mr. Raisher to answer the question would constitute a violation of the parol evidence rule; there was no objection made to the evidence at trial on the grounds that it was immaterial or irrelevant. This objection as stated was overruled and Mr. Raisher was permitted to testify that the designated use of Lot 7, Plat 2 of the Ladue Trails Subdivision as shown on Exhibit A-2, the Master Plan for the Village of Green Trails, was commercial, “proposed neighborhood shopping.”

On cross-examination Mr. Raisher testified that Exhibit A-2 was a proposed plat, and that a final plat would be recorded. A final development plat for Lot 7 was recorded in the St. Louis County Records and recited that all lots in the subdivision — Plat 2 of Ladue Trails Section of the Village of Green Trails — were subject to the conditions and restrictions contained in the Indenture of Deed Restrictions of Ladue Trails Section of the Village of Green Trails Plat One.

We have previously held that the Sub-Indenture Deed Restriction did not prohibit all commercial development of Lot 7 and that the words “or other commercial business” in the context of the Sub-Indenture Deed of Restrictions was employed in a limited sense inapplicable to the proposed medical office complex. We seriously question whether the parol evidence rule applies to this case under any circumstance; but if it should, we conclude that because the Master Plan, Exhibit A — 2, was incorporated by reference into the Village Indenture governing Lot No. 7, it became a part of that document and could be considered by the trial court in determining whether the document itself was ambiguous.

We rule this point against appellants.

Affirmed.

STEPHAN, P. J., concurs.

STEWART, J., concurs in the result.

      . Robert Hagel, the Director of Public Works for St. Louis County was a named defendant. He filed a motion to dismiss prior to trial and it was sustained.

      . “Lot 7,” as hereinafter used, refers to Lot 7 of Plat 2 of Ladue Trails Subdivision.

      .The Village of Green Trails is not a municipality incorporated pursuant to § 80.020 RSMo. 1969 but at all times relevant to the issues in this proceeding was an unincorporated section of privately owned real estate parcels, lots and common grounds within St. Louis County.

      . There is a further provision in the Indenture that any such amendment, alteration, change or discontinuance required the consent of the “Party of the First Part, or its successors or assigns so long as it is the owner of more than two lots in said Subdivision.” The “Party of the First Part” is Forest Ridge Land Corp., a Missouri corporation, and there is no evidence in the record as to whether, at the time this consent was obtained, Forest Ridge Land Corp. owned any of the lots in the subdivision.

      . The record is not clear concerning the nature of these activities which the Trustees opposed. There is no explanation as to what type of business the “Golden Door” was, nor what the caterer intended to operate in the clubhouse. We would have to assume that the seminar to be conducted in the clubhouse space rented to A. G. Edwards Investment Company would be in connection with its business.

      . There is no evidence concerning the greens fees paid by an individual, not a member of the country club, who desired to play a round of golf on the golf course nor what was the cost of a cart rental to either a member or non-member of the country club.

      . For other cases construing the term, see Thompson v. City of Salisbury, 24 N.C.App. 616, 211 S.E.2d 856, 858[3] (1975); Jefferson Parish v. Groetsch, 256 So.2d 722, 724[1] (La.App.1972); Shady Grove Inc. v. Jefferson Parish, 203 So.2d 869, 870 (La.App.1967); Appeal of Hart, 410 Pa. 439, 189 A.2d 167 (1963); Lanske v. Montealegre, 361 Mich. 44, 104 N.W.2d 772, 774 (1960); Annot. 32 A.L.R.3d 420 (1970); City of Sioux Falls v. Cleveland, 75 S.D. 548, 70 N.W.2d 62, 64 (1955).

      . The duty of a trustee in administering a trust is to exercise such care and skill as a person of ordinary prudence would exercise in dealing with his own property. Restatement (Second) of Trusts § 174 (1959). When dealing with his own property, a person of ordinary prudence considers all relevant information in his possession, regardless of whether he obtained the information in a personal or a business capacity. The trustee’s duty of care is no less than the individual’s.

      . See A. Corbin, Contracts §§ 573-596 (1 Vol. Ed. 1952).


source: Caselaw Access Project

author: REINHARD, Presiding Judge.

license: Public Domain

text:
    In the Matter of S. C. H. et al., Petitioners-Respondents, v. C. W. H., Defendant-Appellant.
    No. 40592.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 18, 1979.

      J. Martin Hadican, St. Louis, for defendant-appellant.
    Ellsworth Cundiff, Jr., Frederick W. Drakesmith, St. Charles, for petitioners-respondents.
   REINHARD, Presiding Judge.

The natural father appeals from a decree of adoption. The petitioners are the children’s mother and her present husband. The natural father did not consent to the adoption. However, consent is not required of a parent “who has for a period of one year immediately prior to the filing of the petition for adoption, either willfully abandoned the child or willfully neglected to provide him with proper care and maintenance”. [Section 453.040[4] RSMo.1969.]

The marriage of the father C.W.H. and mother J.W.A. was dissolved on September 27,1976. The decree of dissolution awarded custody of the two children to the mother, with visitation rights in the father; and ordered the father to make weekly child support payments of $17.50 per child. On October 21, 1976, the mother married J.G.A.; the children have been in the mother’s custody and more recently the custody has been shared by the mother’s new spouse. Since the dissolution, petitioners filed their petition for adoption on October 25, 1977 alleging abandonment and neglect by C.W.H. The children, a girl and a boy, were aged 6 and 4, respectively, at that time. After a hearing the court found that the natural father had both willfully abandoned and neglected the children. The court made the additional necessary findings and ordered adoption.

On appeal defendant contends that the evidence does not support the court’s findings.

At the hearing the mother testified that, with the exception of a few telephone calls following the divorce and early in the one-year statutory period, defendant had attempted to have no contact with the children. She also claimed that although one such call took place on the son’s birthday, defendant was apparently unaware of the birthday and failed to inquire about the children altogether. She stated that defendant had never sent any letters, cards, birthday or Christmas presents to the children and refused to visit them in her home. She also maintained that defendant was always either aware of her current address and telephone number, or able to contact her through her mother following a move to a new address. Defendant in turn claimed that his failure to visit the children at their home with petitioners was due to the fact that the same was too restrictive an arrangement. Petitioner, J.W.A. stated that her insistence on the in-home visitation policy was due to defendant’s extensive history of drinking problems. While acknowledging this history, defendant claimed to have mastered the problem, not having consumed any alcohol since approximately a month before the divorce.

The record shows that defendant in early 1977 filed a motion to modify the dissolution decree seeking custody of the children on the ground that the mother was living with another without the benefit of marriage. Petitioners’ response to this motion disclosed the fact of their marriage together with their current address, and defendant pursued the modification proceedings no further.

The standard of appellate review announced in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) is, of course, applicable to adoption proceedings, Adoption of Mike and Russ, 553 S.W.2d 706 (Mo.App.1977). Accordingly, we must sustain the action of the trial court unless there is no substantial evidence to support its finding that defendant willfully abandoned or neglected the children. Alternative definitions of the term “willfully abandoned” have been held to be:

. first, a voluntary and intentional relinquishment of the custody of the child to another with the intent to never again claim the rights of a parent of perform the duties of a parent; or second, an intentional withholding from the child, without just cause or excuse, by the parent, of his presence, his care, his love, and his protection, maintenance, and the opportunity for the display of filial affection.

In re Watson’s Adoption, 283 Mo.App. 1104, 195 S.W.2d 331, 336 (1936).

The term “willful neglect” has been construed to mean neglect that is:

intentional, deliberate, and without just cause or excuse, evincing a settled purpose to forego . . . parental duties over the period of time which the statute prescribes

In re Perkins, 234 Mo.App. 716, 117 S.W.2d 686, 692 (1938).

Defendant cites several cases to support his contention that the evidence below was insufficient to constitute either of the just-defined statutory terms. We note that while reference to other abandonment and neglect cases may provide some helpful guidance in reaching a decision, the very nature of these proceedings is such that each case must ultimately turn on its own unique set of facts, In re Adoption of P.D.K., 359 S.W.2d 360 (Mo.App.1962).

After a careful review of all the evidence we find sufficient evidence to sustain the action of the trial court on its findings of constructive consent based on willful neglect.

“Willful abandonment” has been found to be a positive act whereas “willful neglect” is “more of a negative proposition, simply the failure to perform the duty with which a parent is charged by law and by conscience. The intent therefore must usually be inferred from the facts and circumstances. Such facts and circumstances would, of course, exclude a finding of willfulness where the neglect occurred because of things beyond the control of the parent which were not his fault.” In re C.C.&C., 380 S.W.2d 510, 515 (Mo.App.1964).

By applying the guidelines set out in In re Perkins, supra, we find that defendant did willfully neglect his children by not providing them with the proper care and maintenance. By the defendant’s own testimony, he provided no financial support for the children during the statutory period preceding the filing of the adoption petition. One payment of $70.00 predated that period and the two smaller payments made after the filing of the petition are self-serving and may properly be disregarded by the court as having no bearing on the issue of constructive intent to abandon or neglect. D.A.Z. and R.M.Z. v. M.E.T., 575 S.W.2d 243 (Mo.App.1978). Failure to support is alone not enough. It must be intentional. There was evidence in the record of defendant’s ability to contribute to the support of the children and this alone with the other evidence before the court was sufficient to show that the failure was intentional and without excuse. Defendant in his motion to modify apparently asked for no relief as to support payments.

Defendant’s failure to contribute to the financial support of his children coupled with the other evidence as to lack of contact with them was sufficient to sustain the trial court on its findings of willful neglect in failing to provide proper care and maintenance. The willful neglect having occurred for at least one year before the filing of the petition, the father’s consent was unnecessary for the adoption.

Our conclusion that the evidence sufficiently established defendant’s willful neglect being dispositive, it is unnecessary to address the issue of willful abandonment. However, by way of admonition as to any such cases in the future, this court wishes to note that it is somewhat troubled by the finding of abandonment below in light of defendant’s motion to modify seeking custody of the children. We are cognizant that such motions may conceivably be instituted for purposes both unstated and ulterior to the actual obtaining of custody, and consequently do not mean to suggest that the filing of such a motion during the statutory period should automatically preclude as a matter of law a finding of abandonment. However, such actions are strong and persuasive indicia that no willful abandonment has taken place, and a trial court concluding otherwise should express in its findings with some particularity its reasons for disregarding activity seemingly demonstrating such strong parental interest.

Judgment affirmed.

GUNN and CRIST, JJ., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Leland BROWNER, Defendant-Appellant.
    No. 38331.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 25, 1979.

      Roy A. Walther, III, Crouppen, Walther, Zwibelman & Walsh, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Neis C. Moss, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   KELLY, Judge.

Appellant Leland Browner was found guilty by a jury in the Circuit Court of the City of St. Louis of two Counts of Assault with Intent to Kill on the 1st day of July, 1976. After his motion for new trial was overruled, he was sentenced on July 9,1976, to the custody of the Missouri Department of Corrections for two terms of seventy-five years, to be served consecutively. He filed a timely notice of appeal raising four Points Relied On as grounds for the reversal of his conviction. We affirm.

The sufficiency of the evidence to support the jury verdict is not raised; therefore a short statement of the facts will suffice.

According to the evidence appellant, La-del Walton and Eddie Turner drove to the New Age Savings & Loan Ass’n. at 1401 North Kingshighway in the City of St. Louis on July 18, 1975, and upon arriving there discussed their plan to rob the bank. They entered the bank and appellant, armed with a handgun, approached a security guard, and the security guard struggled with him in an effort to disarm him. During the scuffle appellant shot the security guard; the security guard fell behind a counter and the appellant leaned over the counter and shot the security guard two more times.

After this, the appellant moved to another part of the bank and as he did so Mr. Anderson, the Collection Manager of the bank, went to the aid of the security guard. Appellant returned to where Mr. Anderson was with the security guard and when Mr. Anderson observed him approaching Mr. Anderson held up his arms. Appellant shot Mr. Anderson twice.

Both the security guard and Mr. Anderson identified the appellant at trial as the man who shot them.

Appellant’s First Point Relied On is that the trial court erred when it denied his motion for a mistrial filed during the voir dire examination of the jury because one of the veniremen stated that she had made a wrong decision concerning the innocence of a defendant in a prior criminal trial, and this statement was prejudicial to the appellant.

Where the question on appeal is whether a remark made by a juror during voir dire examination of a jury panel is so prejudicial as to require a mistrial, the real issue to be resolved is whether the juror’s remarks were in fact so prejudicial as to infect the entire panel to the prejudice of the accused. State v. Turner, 462 S.W.2d 723, 725[1] (Mo.1971). The general rule is that the disqualification of an individual juror for expressing an opinion or making remarks indicating a bias or prejudice which might preclude the juror from serving as a juror in a case is not a sufficient ground for a challenge of the entire jury panel. State v. Weidlich, 269 S.W.2d 69, 71[3-5] (Mo.1954). To hold otherwise would be to chill the procedure of attempting to extricate from prospective jurors those hidden prejudices which might deprive either the state or the accused of a fair trial. The evaluation of any effect a juror’s answer might have upon fellow jurors during the voir dire proceedings and what action must be taken to assure both sides to the fair trial our system attempts to guarantee must, of necessity, be largely entrusted to the discretion of the trial court. State v. Murphy, 533 S.W.2d 716, 717-718[l-2] (Mo. App.1976).

We note that the juror who gave this response was removed for cause from the jury panel.

In this particular instance the Assistant Circuit Attorney inquired if there was anyone who felt that by reason of any prior jury experience they couldn’t be fair and impartial to both parties in the case. Juror No. 1 replied that she would be a bit prejudiced “because we made the wrong decision, which they tell us afterwards.” Without any further inquiry into the matter, this juror continued: “I was sick for weeks afterward because I thought I was being a fair person and I voted: Free him. There’s no proof. We don’t want to put an innocent man in jail. And afterwards, they were all mad at me about it. The others knew he was guilty. And I felt we were being made fools of by not giving us all the information.”

At this point, the counsel for appellant approached the Bench and, out of the hearing of the jury requested a mistrial, and that the entire panel be stricken because of the juror’s statement; that he was not requesting any other relief. The motion to quash the jury panel and grant the mistrial was denied.

With the record in this condition we cannot say that the trial court abused its discretion in denying appellant’s motions. Only a portion of the voir dire examination is incorporated into the transcript on appeal and we are unable to ascertain from that portion whether other jurors were affected by this juror’s statements or even if they were asked if they heard these remarks and what effect, if any, it would have on their ability to serve. Many circumstances occur during voir dire examination which at first blush might appear to be prejudicial. However, we believe that where, as here, trial counsel contends the entire panel of jurors has been tainted he has the burden of furnishing a reviewing court evidence that in the light of the statement made by the juror, his client’s rights have been prejudiced, and in the absence of any such evidence, on appeal we must recognize the fact that the trial court is in a better position to observe what effect, if any, the juror’s alleged prejudicial statement had on his or her fellow jurors.

We rule this Point against appellant.

Appellant’s Second Point Relied On is that the trial court erred in overruling his motion for mistrial when the prosecutor, in his opening statement informed the jury that both co-defendants — Eddie Lee Turner and Ladel Walton — confessed to the crime at the time of their arrest when the prosecutor knew that Ladel Walton was not going to be a witness and his statements were therefore inadmissible.

In his opening statement the Assistant Circuit Attorney stated: “These robbers then fled. And at various later dates, one gentleman was arrested and confessed to the crime — that’s Mr. Turner — implicating Mr. Browner and Mr. Walton. Subsequently Mr. Walton was arrested and he, too, admitted to the crime.” At this juncture appellant’s counsel objected, asked that the jury be instructed to disregard the statement and requested a mistrial. The court then inquired: “Mr. Moss, do you expect to enter this evidence as _ The Assistant Circuit Attorney replied: “I didn’t say the content of his confession; I just said that he admitted the crime.”

The office of the opening statement is to advise the jury of the facts the state expects to prove, and to inform the defendant of the contemplated course of the prosecution and the facts relied upon in support thereof so as to fairly enable the defendant to meet the charge or charges preferred against him. As a general rule, it should be brief, and general rather than detailed. It should be confined to statements based on facts which can be proved and should not include facts which are plainly inadmissible. The scope and extent of the opening statement is largely within the discretion of the trial court, and the trial court must necessarily rely upon the good faith of counsel in making their open- • ing statements to a jury as to material facts they intend to prove. The mere fact that no evidence is adduced as to some of the precise facts related to the jury in the opening statement is not sufficient to constitute error so prejudicial as to require the reversal of a conviction, except where it can be established, directly or by inference, that counsel making said statement had not intended to, or knew that he could not, produce testimony to support said statement when made. State v. Horn, 498 S.W.2d 771, 774[1] (Mo.1973); State v. Feger, 340 S.W.2d 716, 724—725[12-16] (Mo.1960). The question is whether counsel acted in good faith when he made the opening statement, and could reasonably believe that the evidence could and would come in during the trial. If, at the time of the opening statement counsel knows that he cannot produce the only witness who can furnish the particular facts in support of his opening statement, it is objectionable for him to indicate in opening statement that such evidence will be adduced at trial. State v. Stillman, 310 S.W.2d 886, 888[2] (Mo.1958). ’ And if the evidence would be plainly inadmissible upon objection, it should not be included in the opening statement. All attorneys, including prosecuting attorneys, are presumed to have knowledge of the law, including the rules of evidence applicable to the trial of criminal cases, and even where the prosecutor is presumed to have acted in subjective good faith in making unprovable statements, where that faith is founded on deliberate disregard of the rules of evidence or ignorance thereof, it should not be concluded that he acted on reasonable grounds for supposing that he would be able to show the facts stated in his opening statement. State v. Hicks, 535 S.W.2d 308, 311-313 (Mo.App.1976).

As noted in Hicks, in many cases where this question has been raised the question has been whether the prosecutor has acted in good faith and with reasonable grounds for supposing that he will be able to show the facts stated; however, where improper statements result in actual and real prejudice to the defendant thereby depriving him of a fair and impartial trial, the prosecutor’s good faith should be of slight concern in deciding the question of error. Where the prosecutor’s actions are prejudicial and founded upon a deliberate disregard of well known rules of evidence it should not be concluded that he acted on reasonable grounds for supposing that he would be able to show the facts stated in his statement.

In the trial court appellant’s objection to this portion of the state’s opening statement was that any confession by Mr. Walton was inadmissible because it was hearsay. In his Motion for New Trial his Point is stated as follows:

The Court erred in not granting defendant’s Motion for Mistrial when during the State’s opening statement the State’s attorney said a co-defendant had been arrested and confessed the crime, when the Circuit Attorney had no intention of calling this co-defendant as a witness and knowing that the statements of a co-defendant are inadmissible against another, thereby prejudicing the defendant.

On appeal, the appellant argues that this statement was highly prejudicial to him for two reasons: “(1) the confession is hearsay, and falls within no exception to the exclusionary rule; and (2) the confession of a co-defendant cannot be received against defendant at trial.” The state argues that reference to Mr. Walton’s confession was made in good faith while attempting to fairly outline the proof which could arguably be adduced at trial and, if erroneous, constitutes harmless error in view of the overwhelming evidence of guilt adduced at trial so that it does not warrant reversal of the conviction on appeal.

Of the cases decided by the appellate courts of Missouri, the closest in facts to this case is State v. Minor, 556 S.W.2d 35 (Mo. banc 1977), vacated on other grounds sub nom. Lee v. Missouri, 439 U.S. 461, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979). In Minor, the question was whether a prosecutor’s remark during the course of opening statement that defendant’s companion admitted complicity in the robbery constituted grounds for reversal of a conviction of the defendant. Defendant’s counsel had objected and requested a mistrial, but the trial court ref used, to grant the requested mistrial although the prosecutor was admonished, out of the hearing of the jury, not to “make any more statements like that.” The court said: “Our function is to determine whether as a matter of law, the trial court abused its discretion to the prejudice of the defendant in refusing to grant a mistrial.” 556 S.W.2d 39. Because the prosecutor’s somewhat ambiguous comment was not followed by further objectionable reference in opening statement, during testimony or in closing argument, the trial court observed the incident and was in better position to assess its effect and determine measures necessary to cure it, and the evidence of guilt of the defendant was strong, the court held the prejudice “spawned” by the prosecutor’s improper remarks did not warrant reversal.

As in Minor, the state did not introduce, nor seek to introduce, the alleged confession of Mr. Walton. Unlike Mr. Turner, he did not testify at trial for the state. His name was not endorsed on the indictment as a witness for the state. He was not named as an accomplice of the defendant in the indictment charging the crimes for which appellant was tried and convicted. However, the ease with which the state has been permitted to endorse witnesses at the last moment would not necessarily rule out the possibility that the state did intend to call him and produce him at trial as a state’s witness when the opening statement was made. The only evidence that the Assistant Circuit Attorney knew at the time he made this statement that he did not intend to call Mr. Walton as a witness is the statement of defense counsel that this was so. This is not sufficient for us to conclude that the Assistant Circuit Attorney had no intention of calling Mr. Walton as a witness when he made his opening statement.

However, we deduce from the exchange between counsel and the trial court that it was the Assistant Circuit Attorney’s position that the fact that Mr. Walton made a confession of his participation in the crime was a “fact” which could be developed in the trial, even though the contents of the alleged confession were inadmissible as hearsay, and even though Mr. Walton did not testify for the state. We disagree.

We are dismayed by what we conclude to be a thinly veiled attempt by an experienced prosecutor to inject into appellant’s trial the fact that an accomplice had admitted his participation in the crime for which appellant was on trial, when he should have known — and we believe did know — that he was thereby attempting to evade the impact of a well known and fundamental rule of evidence and do indirectly what he could not have done directly.

We have here a trial in which the appellant alone was charged in the indictment and, alone, was on trial. It is a fundamental principle of our law that every defendant is entitled to a separate trial, a right recognized by Rule 25.07(a) and § 545.880 wherein it is provided that when two or more defendants are jointly charged with the commission of a felony, any one defendant, before announcing ready for trial at any term of court, shall, upon request, be tried separately. The same principle which has held it error to show in evidence or to tell the jury that a jointly accused defendant has been convicted, pled guilty or been acquitted of the same crime for which the defendant is on trial, applies to this situation. State v. Aubuchon, 381 S.W.2d 807, 815-816[14, 15] (Mo.1964). In reaching its holding in Aubuchon, the court reasoned that the theory of our statute abolishing the distinction between principles and accessories, § 566.170 (now § 562.041), is that every defendant who joins in the commission of a crime is liable, on his own, as a principal; and he is also entitled to be tried on his own without having his guilt prejudged by what happened to a co-defendant. As was said in Aubuchon, 381 S.W.2d at 816: “Were this not the law, the value of a defendant’s right to a separate trial . might be considerably dissipated.”

The fact that Mr. Walton, an accomplice, admitted his participation in the commission of the crime is not competent evidence that this defendant too is guilty of said crime. Had the state attempted to introduce into evidence Mr. Walton’s statement admitting the crime it would have been subject to an objection that it was hearsay, unless it could have been brought in under one of the exceptions to the rule. The state has not contended that this statement was admissible because it was made in furtherance of a conspiracy or as a part of the res gestae. Once a common enterprise is ended, whether by accomplishment or abandonment, no one of the joint actors is permitted to affect the others by any subsequent act or declaration of his own. The admission made by Mr. Walton out of court, not under oath and out of the presence of the appellant and some time after the commission of the crime was not admissible as evidence against the appellant. State v. Newell, 462 S.W.2d 794, 796[1] (Mo.1971); State v. Cross, 357 S.W.2d 125, 128[10] (Mo. 1962); State v. Chernick, 278 S.W.2d 741, 748[6] (Mo.1955); State v. Hill, 352 Mo. 895, 179 S.W.2d 712, 716[7, 8] (1944).

Since the admission of Mr. Walton, made out of the presence of the appellant, was inadmissible, the fact that it wets made is likewise inadmissible, it is not binding on the appellant, and should not have been referred to in the state’s opening statement.

Furthermore, by taking this tack and relating to the jury in his opening statement the “fact” that Mr. Walton had “admitted to the crime” the Assistant Circuit Attorney evaded a major safeguard against the improper use of a confession, i. e. a preliminary determination by a trial court that the “admission” or confession was freely and voluntarily given after the person making the admission or confession had been advised of his legal rights. Sims v. State of Georgia, 385 U.S. 538, 543, 544, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967). Concern about this safeguard most likely triggered the inquiry by the trial court whether the admission of Mr. Walton had been used in the federal court. Even if such inquiry had been made in federal court, that would not have made it admissible in this trial against appellant.

Mr. Justice White, in his dissent in Bruton v. United States, 391 U.S. 123, 141, 142, 88 S.Ct. 1620, 20 L.Ed.2d 476, said:

As to the defendant, the confession of the codefendant is wholly inadmissible. It is hearsay, subject to all the dangers of inaccuracy which characterize hearsay generally. Furthermore, the codefendant is no more than an eyewitness, the accuracy of whose testimony about the defendant’s conduct is open to more doubt than would be the defendant’s own account of his actions. More than this, however, the statements of a codefendant have traditionally been viewed with special suspicion. . . . Due to his strong motivation to implicate the defendant and to exonerate himself, a code-fendant’s statements about what the defendant said or did are less credible than ordinary hearsay evidence . . . the codefendant’s admissions cannot enter into the determination of the defendant’s guilt or innocence because they are unreliable .

Although an accomplice, Mr. Walton, could if he were so willing, have been permitted to testify as any other eye-witness to the circumstances of this crime. So far as we can ascertain from this record on appeal the Assistant Circuit Attorney never had any intention of calling him as a state’s witness when he made his opening statement, although he never clarified this question, and Mr. Walton did not testify in the case. If good faith alone were the test, we would find the Assistant Circuit Attorney failed the test in this instance.

We hold that the trial court erred in allowing the Assistant Circuit Attorney’s statement to stand in the face of appellant’s objection. The question now becomes whether the appellant was prejudiced by the trial court error in denying his motion for new trial and whether the appellant is therefore entitled to have his conviction set aside and this cause remanded for a new trial. We have concluded that in view of the strong evidence of appellant’s guilt, it was harmless error. In order to reach this conclusion this reviewing court must find from the record as a whole that the jury either disregarded or could not have been influenced to appellant’s prejudice by this error of the trial court. State v. Degraffenreid, 477 S.W.2d 57, 64 (Mo. banc 1972). We reach this conclusion based upon the following.

The jury was instructed just minutes pri- or to the Assistant Circuit Attorney’s opening statement that opening statements are not evidence. MAI-CR 2.02.

After the conclusion of the opening statement no further reference was made to Mr. Walton’s “admission to the crime.”

The state’s evidence was very strong. Both victims of the assault testified and identified appellant as the man who shot them. Another witness, Donna Harris, who was seated in an automobile outside the bank and observed the three men both enter and leave the bank building, also identified the appellant as one of those three men she had so observed, and described the clothing he was wearing at the time. The jury was further aided by viewing a sixteen millimeter film of the perpetration of the robbery taken by the bank surveillance camera and some still photographs developed from specified frames of the moving picture film.

One of the participants in the commission of the robbery, Eddie Turner, testified and detailed the circumstances surrounding the shootings and the robbery of the bank. He identified the appellant as one of the participants in the robbery. Although he did not see the appellant actually shoot anyone, he heard the shots and when he looked in the area from whence he heard them he observed appellant running for the door of the bank. Appellant arrived at the door first and as Turner arrived there the appellant pushed him back and told him that since they were in the bank they should get the money.

In a close case error which might call for reversal may be disregarded as harmless when the evidence of guilt is strong. State v. Degraffenreid, 477 S.W.2d at 65[15], The evidence of appellant’s guilt was strong and the error in the Assistant Circuit Attorney’s opening statement was harmless and does not entitle appellant to have his conviction set aside and a new trial ordered. State v. Minor, 556 S.W.2d 35 (Mo. banc 1977).

We rule this point against appellant.

Appellant’s third and fourth Points Relied On concern alleged errors referable to an escape by appellant from the City Jail of the City of St. Louis on May 23, 1976, after his conviction on federal charges arising out of this incident and prior to his trial on these state charges.

His third Point Relied On is that the trial court erred when it allowed Samuel Greene, the Warden of the City Jail, to testify over objection, that appellant had escaped from jail because (1) he was in jail by reason of his conviction on the federal charges arising out of this robbery and (2) the conditions in the jail had been declared unconstitutional by a federal court.

State v. Tyler, 306 S.W.2d 452 (Mo. 1957) has been cited as authority for the proposition that evidence of flight or escape is admissible for the purpose of raising a presumption of consciousness of guilt of the crime for which a defendant is on trial. This is so regardless of the fact that at the time of said escape he was in custody on other charges which were still pending. In those circumstances, the Tyler court said that the rule excluding said evidence confused the admissibility of the evidence with the weight to be given by the jury to the evidence adduced as to the circumstances of defendant’s confinement and escape when he is confined on two or more charges at the time, “except in those instances where the trial court, as with any other issue, should declare as a matter of law that the evidence is insufficient for a jury reasonably to find that defendant escaped or fled wholly or partially on account of the pend-ency of the charge on trial, the question of whether an escape shows a consciousness of guilt of the offense on trial is a jury question.” 306 S.W.2d at 459.

What Tyler did not answer, however, is who bears the burden of presenting sufficient evidence to make the issue one for the jury. If we assume, without deciding, that to entitle the state to the benefit of this presumption of the consciousness of guilt all it need show is the fact of escape, then it might appear that the burden of coming forward with the evidence to rebut this presumption shifts to the defendant. The defendant then should be permitted to present evidence to explain that his escape was not due to a consciousness of guilt of the crime for which he was on trial but for other reasons. With the record in this state, it would then be for the jury to consider the evidence in toto and apply or refuse to apply the presumption. We have found a number of Missouri cases stating the law of Missouri in this respect, but not one has decided upon whom the burden of proof on this issue rests.

Appellant’s attack on the admissibility of this evidence is directed at the possibility that his escape may have been occasioned by his conviction on federal charges for bank robbery arising out of the incident of the robbery of the bank during which these shootings took place and was not the basis for the presumption of consciousness of guilt of these assault charges.

There is no evidence in this record to support the appellant’s contention that at the time of his escape he was in custody by reason of a federal conviction. However, when the Assistant Circuit Attorney announced that he was calling “Sam Greene” as his next witness defense counsel objected at the Bench and out of the hearing of the jury to this witness testifying about evidence of an escape because appellant was already a federal prisoner, having already “received time” from the federal government, and therefore the presumption aforesaid could not be drawn from appellant’s escape. In response, the Assistant Circuit Attorney explained that the appellant had never been in federal custody but was always a state prisoner; that he had been released to the federal authorities only for the purpose of trial on a writ and had been returned to state custody prior to serving a sentence imposed by the federal court. Appellant’s counsel replied that since appellant had been sentenced to twenty-five years by the federal court then the presumption was that he escaped to “get away from that time.” However, other than these arguments of counsel there is no evidence of this sentencing.

Nevertheless, if, as appears, this federal conviction arose out of the same robbery in which the three assaults for which appellant was on trial here, the question almost becomes academic. Pursuant to the authority of Rule 24.04 the shootings which occurred during the robbery were joined in a single indictment and tried at the same time. Therefore, the question whether the escape was presumptively evidence of a consciousness of guilt as to one of the crimes, and not another, loses some of its validity. In the absence of any evidence that the appellant was in custody by reason of a sentence imposed by a federal court, the jury could not consider that circumstance in determining whether to give the state the benefit of the presumption. The presumption of consciousness of guilt, if employed by the jury, would not be so prejudicial, if prejudicial at all, by reason of the single transactional factual basis out of which the charges emanated to require reversal.

However, if the burden of coming forward with evidence to avoid the presumption shifts to the defendant once the escape is shown, then he should be allowed to introduce any competent, relevant and material evidence to rebut the presumption. This requires us to consider appellant’s fourth and final Point, whether the trial court erred in sustaining the prosecutor’s objections to questions concerning the unconstitutional standards at the City Jail.

During cross-examination of Warden Greene appellant undertook to elicit testimony from him concerning the living conditions at the City Jail. Defense counsel developed that appellant was assigned to “administrative segregation,” i. e. “isolation” and, according to the Warden, confined in a cell 2' X 4' X 6' but also had access to a recreation room where a television was available to him during the daytime hours. He then inquired: “Now is the jail still under a court order from the Federal Government that it’s unconstitutional?” The Assistant Circuit Attorney objected to the question on the grounds that it was irrelevant and the trial court sustained the objection. Appellant made the following offer of proof:

I make an offer of proof that the presumption is raised that he escaped because he’s guilty. I propose that that presumption under the law would be just as well that the Federal Government said that’s unconstitutional over there; it’s unfit for human confinement. It still is. It hasn’t been lifted. And they’re still under constant scrutiny.

The offer of proof was overruled.

To preserve for review the overruling of an offer of proof the facts and reasons given in an offer of proof must be sufficiently specific and detailed so as to demonstrate the relevance of the testimony the party making the offer of proof seeks to introduce into the case. State v. Umfrees, 433 S.W.2d 284, 286[1, 2] (Mo. banc 1968); State v. Davis, 516 S.W.2d 773, 775[2] (Mo.App.1974). This offer of proof does not meet these standards; it constitutes nothing but a eonclusionary statement. It fails to advise the trial court when the judgment was entered by the federal court, whether appellant was confined in the jail at that time, whether the same conditions upon which the federal court made its findings still persisted, and what specific acts of the jail administration or fellow inmates made escape necessary.

The defense of “necessity” has been recognized in some jurisdictions in a prosecution for escaping from confinement. Assuming, without deciding, that the same facts which support a defense of necessity are admissible where the state seeks the benefit of the presumption of consciousness of guilt to rebut said presumption, appellant’s offer of proof falls far short of demonstrating that the evidence he sought to introduce would meet those standards announced by the cases in those jurisdictions recognizing the defense. See People v. Lovercamp, 43 Cal.App.3d 823, 118 Cal.Rptr. 110 (1974); People v. Harmon, 53 Mich.App. 482, 220 N.W.2d 212 (1974); State v. Reese, 272 N.W.2d 863 (Iowa 1978). In those cases it was held that to make out a defense of necessity the defendant must show: 1) specific threats of death, forcible sexual attack or bodily injury; 2) complaints to authorities would be futile; 3) no violence against innocent persons during the escape; and 4) the prisoner reports to the authorities when he has reached a place of safety. None of these are shown in appellant’s offer of proof.

We hold the .point was not preserved for review because of the paucity of the offer of proof and we also hold that the trial court did not err in sustaining the objection to the question as framed.

Judgment affirmed.

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

      . Appellant was charged in the Indictment with three Counts of Assault with intent to kill; however, at the close of defendant’s case the state dismissed Count II of the Indictment. Appellant also was charged with having been previously convicted of a felony, Carrying a Concealed Weapon, and after a finding on this issue the assessment of punishment was not submitted to the jury.

      . At this point, out of the hearing of the jury the following colloquy took place at the Bench:
      Mr. Walther: He said Turner was going to testify and now he just said they arrested Walton, and Walton is not going to testify. Mr. Moss: The fact that he admitted to it is a fact that occurred. I didn’t say this man, even though he did, I didn’t say he implicated him.
      Mr. Walther: That would be hearsay testimony-
      Mr. Moss: That he confessed?
      THE COURT: Do you have a witness?
      Mr. Moss: I have a witness that will show you Walton confessed. I’m not going to ask the nature of the confession.
      Mr. Walther: He is saying he has a witness to testify that Ladel Walton confessed to that. That is inadmissible to this crime. Using his confession, even implying to the jury that he admitted to it. And he doesn’t have Ladel Walton here. That is highly prejudicial; it’s hearsay; it’s prejudicial. The jury now knows that two, three people were arrested. And he’s not even going to testify at a trial.
      Mr. Moss: I would indicate that the fact— well, I’ve already stated my position. I don’t believe it’s error.
      THE COURT: Has Walton been tried?
      Mr. Moss: No.
      THE COURT: For any phase of this?
      Mr. Moss: Yes, federal.
      THE COURT: Was he convicted?
      Mr. Moss: Yes.
      THE COURT: Was that statement used in the federal court?
      I’ll overrule the objection.
      Then in the presence of the jury the Assistant Circuit Attorney continued: “Subsequent to Mr. Walton’s arrest, Mr. Browner was then arrested in February or January of this year.”

      . On appeal, although reference is made to the statement concerning Mr. Taylor’s confession of the crime and his implication of appellant therein, we do not consider it because not raised in this Motion for New Trial.

      . We were also unable to find endorsed as a witness on the indictment in this case the name of Eddie Turner, the accomplice who appeared at trial and testified for the state after working out a “deal” with both the state and federal authorities in return for his testimony. He described in detail the robbery of the bank on July 22, 1975, how the robbers were attired, their preparation for the robbery, the incident itself, the fact that there was a shooting and that immediately thereafter he observed the appellant running to the door of the building, and their escape. He further testified that appellant told him that he shot the guard but that he said nothing about shooting the other man in the bank. He also described the splitting of the loot. The details of the questioning by police officers were also developed. The right of the state to call him as a witness is not before us, however.

      . See footnote 2, supra.


text:
    Huncy ALLEN, Appellant, v. STATE of Missouri, Respondent.
    No. 38367.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 26, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Nov. 14, 1979.
    Toby H. Hollander, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Movant Huncy Allen appeals from the denial after an evidentiary hearing of his Rule 27.26 motion for post-conviction relief. Movant had entered a guilty plea to a charge of receiving stolen property of a value of at least fifty dollars. The movant was charged under the Second Offender Act. After the plea, movant was sentenced to six years in the Department of Corrections.

Movant contends that in denying his motion for post-conviction relief the court erred in two respects: (1) that'liis counsel did not adequately, investigate the facts or law applicable to appellant’s case as to value and informed appellant of the incorrect standard of value of the money orders, thereby depriving movant of the ability to make a knowing and voluntary waiver of his right to trial; and (2) that there was not a sufficient factual basis of the value of the stolen money orders to warrant movant’s plea of guilty to the charge of receiving stolen property of a value of at least fifty dollars, and consequently his plea of guilty thereto deprived him of due process of law. We find these issues against movant and affirm.

This appeal is based primarily upon the challenged value of the stolen property which movant allegedly received. He does not deny that he received the money orders knowing that they were stolen. The state indicated at the guilty plea hearing that its evidence would show that on August 22, 1974, based on an informant’s tip, the police discovered 9,000 money orders in movant’s apartment which had been stolen from a United Parcel Service truck on July 12, 1974. The state alleged that the value of the paper was $233. At the plea hearing the court extensively questioned movant and before the plea was accepted, discussed the matter of the value of the property. The court recessed during the hearing to let movant’s attorney confer with him further as to this point. The hearing continued and the court accepted defendant’s plea of guilty. The court sentenced movant to serve a term of six years in the department of corrections. This was the sentence recommended by the state, the recommendation of which movant was aware.

Approximately three months after the guilty plea hearing, Allen filed this Rule 27.26 motion. At the 27.26 hearing, Allen’s attorney called a witness who testified that one ton of money-order forms would be worth $5.00 and that the 9,000 money orders represented substantially less than one ton. The Circuit Attorney called an officer of the owner of the money orders, who testified that his company paid $233 for the money orders. At the 27.26 hearing, Allen’s attorney indicated that he had consulted with movant some six times, informing him that the value of the stolen items could “go either way” when presented to a jury. He had by discovery received a copy of the Grand Jury testimony and he knew what the state’s evidence would be as to value. He had not researched the matter but had talked to other lawyers and had determined that the issue of value was a jury question.

Point one on appeal relates to the ineffectiveness of counsel and the voluntar-iness of movant’s plea. After a guilty plea, the incompetence of counsel is material only to the extent that it bears on the voluntariness of the plea. State v. Garrett, 510 S.W.2d 203, 206[4-7] (Mo.App.1974).

If the question of whether the value of these money orders was at least fifty dollars was for the jury, then both of mov-ant’s points are without merit. We believe that in property such as this which does not have a ready market value, evidence of its cost to the owner is sufficient to create a jury question as to its value. See State v. Matzker, 500 S.W.2d 54 (Mo.App.1973). Movant did not testify at the hearing and the court chose to believe his attorney’s testimony that he had gone into the matter of value with movant and told him that it could go either way. Our scope of appellate review is limited to whether the findings of the lower court were clearly erroneous. Haley v. State, 503 S.W.2d 42, 44 (Mo.App.1973). Moreover, on review we are to defer to the trial court’s determination of the credibility of witnesses unless there appears a clear and convincing abuse of discretion. Lahmann v. State, 509 S.W.2d 791, 794 (Mo.App.1974).

With these principles in mind we find no error and affirm the order of the trial court.

Affirmed.

GUNN and CRIST, JJ., concur.


text:
    Curtis TYLER, Appellant, v. STATE of Missouri, Respondent.
    No. 40411.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 26, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Nov. 14, 1979.
    Robert C. Babione, Public Defender, Theodore Guberman, Kevin C. Curran, Asst. Public Defenders, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Steven D. Steinhilber, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Michael Sullivan, St. Louis, for respondent.
   REINHARD, Presiding Judge.

Movant appeals the denial of his Rule 27.26 motion following an evidentiary hearing. In 1975, Curtis Tyler was convicted by a jury on the charge of First Degree Murder under the felony-murder statute. He then was sentenced to life imprisonment. This court affirmed the conviction. State v. Tyler, 556 S.W.2d 473 (Mo.App.1977). Movant maintains that the trial court erred in denying his 27.26 motion because he had been denied effective assistance of counsel.

Specifically, movant charges that counsel was ineffective because 1) he had failed to investigate the state’s allegation that Tyler had a prior felony conviction, and then disclosed that movant had such conviction to the jury on voir dire, and 2) because counsel did not interview a key state’s witness, Calvin Gales. It is argued that, had Gales been interviewed, counsel would have learned that the witness was “under pressure” to testify for the state and, moreover, that counsel would have been aided in impeaching the credibility of the witness at trial.

Our review of an order overruling a Rule 27.26 motion is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Pickens v. State, 549 S.W.2d 910[1] (Mo.App.1977); Rule 27.260*)- On review of a post-conviction motion to vacate judgment, the Court of Appeals is required to give due regard to the trial court’s opportunity to hear witnesses, and must defer to its determination of credibility unless it clearly and convincingly appears that it has abused its discretion. Lahmann v. State, 509 S.W.2d 791, 794[1-4] (Mo.App.1974).

Movant has failed to show how defense counsel’s failure to investigate his prior conviction record was unduly prejudicial or how such failure denied movant a fair trial. The trial judge explained to the jury that the information regarding a prior felony was incorrect, a “clerical error”, and instructed the jury to disregard it. The court, however, did not grant a mistrial. Our court said when this matter was raised on direct appeal that the judge’s explanation to the jury and instruction to the jury to disregard anything regarding a former conviction was sufficient relief. State v. Tyler, 556 S.W.2d 473, 476[6] (Mo.App.1977). In order to show ineffectiveness of counsel, movant has the burden of showing that counsel breached a duty to his client, and that such breach resulted in prejudice which deprived the party of a fair trial. Thomas v. State, 516 S.W.2d 761 (Mo.App.1974). Movant here has failed to show how counsel’s inaction resulted in substantial, if any, deprivation of his right to a fair trial. Aikens v. State, 549 S.W.2d 117[8] (Mo.App.1977). Furthermore, this matter was considered by us in direct appeal. See Johnson v. State, 553 S.W.2d 499 (Mo.App.1977).

Similarly, movant has failed to show that his trial position would have been improved or that evidence of substance would have been uncovered if counsel had interviewed the state witness prior to trial. Defense counsel did cross-examine the witness at trial in an effort to impeach his credibility and to draw out information regarding either coercion, influence or animosity which might have determined his testimony. As the trial court indicated in its findings and conclusions on this motion, defense counsel’s professional judgment — decisions regarding trial tactics and strategy — should not be second-guessed by hindsight. McQueen v. State, 475 S.W.2d 111 (Mo. banc 1971). Appellant’s defense was not weakened by this decision of counsel.

Affirmed.

GUNN and CRIST, JJ., concur.


author: SMITH, Judge.

text:
    A. Jesse WOLFF, D. C., Respondent, v. The STATE BOARD OF CHIROPRACTIC EXAMINERS, Appellant.
    No. 40055.
    Missouri Court of Appeals, Eastern District, Division One.
    July 3, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      John D. Ashcroft, Atty. Gen., Jerry L. Short, Roger M. Baron, Jefferson City, for appellant.
    Fred Roth, Dennis L. Taylor, Clayton, for respondent.
   SMITH, Judge.

The State Board of Chiropractic Examiners appeals from a summary judgment reversing its decision to revoke Dr. Wolff’s license to practice chiropractic. Both parties had filed motions for summary judgment, the trial court found no issue of material fact, and the parties agree that the validity of the Board’s decision involves a question of law. We reverse the trial court’s judgment.

On July 19, 1976, plaintiff-doctor pleaded guilty in the United States District Court for the Eastern District of Missouri to one count of an indictment charging a violation of 18 U.S.C. §§ 1341 and 1342 — using the mails to defraud. Upon his plea of guilty the U.S. District Court suspended the imposition of sentence, placed plaintiff on three years probation, and fined plaintiff $750. Sec. 331.060.1 R.S.Mo. 1975 provides that the Board may revoke or suspend the license of a chiropractor if it is determined under Chapter 161 R.S.Mo. 1969 that the chiropractor “is guilty of any criminal actions.” Plaintiff contends, and the trial court agreed, that “guilty” is equivalent to “conviction” and that a suspended imposition of sentence is not a conviction under the teachings of Meyer v. Missouri Real Estate Commission, 238 Mo.App. 476, 183 S.W.2d 342 (1944); Warren v. Director, Missouri Division of Health, 565 S.W.2d 740 (Mo.App.1978); and Simon v. Missouri State Board of Pharmacy, 570 S.W.2d 334 (Mo.App.1978). Whatever doubts we entertain about the soundness of Meyer, supra, and its progeny, need not be resolved in the case at bar. We find that the word “guilty” as used in Sec. 331.060.1 is not synonymous with the word “conviction” involved in Meyer, supra, Warren, supra, and Simon, supra.

“Conviction” was held in those cases to include “the judgment of the court upon a verdict or confession of guilt.” Meyer, supra, [2]. “Guilty” is defined as “having committed a breach of conduct: justly chargeable with or responsible for a delinquency, crime or sin.” Webster’s Third New International Dictionary, Unabridged 1961, p. 1010. Where a “conviction” is required the fact finder does not make a determination of guilt, it makes only a determination that a conviction has occurred. In determining that a licensee is “guilty of any criminal actions” the determination is not whether judicial proceedings have occurred, but whether the licensee has committed a criminal act. In State ex rel Gibson v. Missouri Board of Chiropractic Examiners, 365 S.W.2d 773 (Mo.App.1963) the court upheld the finding of the Board of Chiropractic Examiners that the licensee was guilty of illegal acts although no criminal charges had been adjudicated at all. See also Morice v. Nations, 568 S.W.2d 805 (Mo.App.1978). Plaintiff’s license was not revoked in this case because of any conviction. It was revoked because he was found guilty by the Administrative Hearing Commission of criminal action. That Commission determination was based upon plaintiff’s judicial admission of such guilt in the United States District Court. That admission furnished substantial evidence to support the finding.

Judgment reversed and cause remanded with instructions to enter judgment in accordance with motion for summary judgment of the State Board of Chiropractic Examiners.

WEIER, C. J., and SNYDER, P. J., concur.


text:
    STATE of Missouri, Respondent, v. Myron MAYS, Appellant.
    No. 40823.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 10, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Nov. 14, 1979.
    Robert C. Babione, Public Defender, Linda Murphy, Asst. Public Defender, St. Louis, for appellant.

      George A. Peach, St. Louis, John D. Ashcroft, Atty. Gen., Paul Robert Otto, Kathryn Marie Krause, Asst. Attys. Gen., Jefferson City, for respondent.
   REINHARD, Presiding Judge.

Defendant was convicted by a jury of robbery first degree and armed criminal action. Under the Second Offender Act, the court assessed punishment at 15 years for robbery first degree and 5 years for armed criminal action, these sentences to run consecutively. On appeal, defendant contends that the trial court erred in two instances: (1) by refusing to give his cautionary instruction on identity and (2) by refusing to allow his attorney to argue the “historic unreliability of eyewitness testimony.”

The testimony of the state’s two principal witnesses, Miss Hester and Mr. Brown, consisted primarily of identification testimony. Miss Hester, the owner of Waldorf Cleaners, the business victimized, described the robber as a dark man, with full lips and approximately shoulder high to her in height. She described herself as being five feet, six inches tall. She did not notice whether the man had a beard or moustache. She further testified that the robber was wearing a dark blue or black cap, a jacket, and was carrying a silver plated pistol. She was able to identify the defendant from police photographs, at a line-up and in court as the man who robbed her business.

Mr. Brown, an employee of the business, testified that the robber was somewhat shorter than five feet, six inches tall and was wearing a wool hat and light tan coat. He too did not notice any moustache or beard on the robber. He stated that the man carried a nickel plated pistol. Brown was also able to identify the defendant from police photographs, a line-up and in court as the man who robbed the cleaners. Both witnesses were able to view the defendant during the robbery for a period of approximately 10 minutes.

Defendant’s first point is that the trial court erroneously denied his instruction on identification. While defendant’s requested instruction was not an approved MAI — CR Instruction, Rule 20.02(d) permits non-approved instructions to be given, but requires that they be “simple, brief, impartial and free from argument.” The instruction requested by defendant, is except for minor deletions, virtually identical to the model instruction formulated in United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552, 558 (D.C. Cir. 1972). Refusal to give the requested instruction was sustained in State v. Sloan, 575 S.W.2d 836 (Mo.App.1978). We held there, that it violated Rule 20.02(d) by not being “simple, brief, impartial and free from argument.” Id. at 837.

Further, the giving of a separate cautionary instruction on identity is discretionary with the trial court. State v. Thomas, 541 S.W.2d 775, 777 (Mo.App.1976). Here, two eyewitnesses gave substantially similar descriptions of the robber and both identified the defendant from police photographs at a line-up and in court as the robber. The trial court instructed the jury on the state’s burden of proof, gave the converse instructions for robbery first degree, and armed criminal action and gave the alibi instruction. On the basis of the record before us, we cannot conclude that the trial court abused its discretion in denying defendant’s separate identity instruction.

Defendant next avers that the trial court erred by preventing his counsel from arguing the historic unreliability of eyewitness testimony. He argues, citing State v. Lingle, 128 Mo. 528, 31 S.W. 20 (1895), that the unreliability of this type of evidence is common knowledge, not requiring the presentation of evidence before it may be argued to the jury.

Defendant’s reliance on Lingle is not well-placed. That case permits argument of facts within the “common knowledge and experience of mankind.” State v. Lingle, 128 Mo. at 540, 31 S.W. at 23. Here, counsel for defendant réferred to specific facts; not general knowledge known to all men. We do not believe, that references to such specific incidents as misidentification by ten or twelve persons are within the daily experience or common knowledge of all men. Counsel’s argument then, strayed beyond the bounds of the normal rule that an attorney may not argue matters not in evidence. State v. Cuckovich, 485 S.W.2d 16 (Mo. banc 1972); State v. Davis, 527 S.W.2d 724 (Mo.App.1975).

Further, in view of counsel’s extensive argument as to misidentification before the objection, we find that the trial court did not abuse its discretion in limiting the argument. See State v. Garner, 530 S.W.2d 420, 423 (Mo.App.1975).

GUNN and CRIST, JJ., concur.

      . Miss Murphy: “If you read the papers, if you listen to the radio, if you watch television, ladies and gentlemen, then you know that history is replete with stories of people who have been misidentified. Not by one or two, but by ten or twelve eyewitnesses.”