author: RENDLEN, Judge. DONNELLY, Judge,

text:
    STATE of Missouri, Respondent, v. Charles Jackson CARTER, Appellant.
    No. 59802.
    Supreme Court of Missouri, En Banc.
    Oct. 10, 1978.
    Rehearing Denied Nov. 6, 1978.

      Doris Gregory Black, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Carson W. Elliff, Asst. Atty. Gen., Jefferson City, for respondent.
   RENDLEN, Judge.

Defendant, found guilty of assault with intent to kill with malice aforethought, § 559.180, RSMo 1969, and of carrying a concealed weapon, § 564.610, RSMo 1969, was sentenced to consecutive terms of forty and five years on the respective charges.

Numerous contentions of error are presented which we shall discuss in the following order: (1) In four constitutional challenges to the composition of the jury, defendant asserts (a) that the number of blacks on the panel compared to the number in the general population of St. Louis City demonstrates impermissible racial discrimination in the jury selection process; (b) that § 494.031, RSMo Supp.1975, in derogation of defendant’s constitutional rights, excludes women from jury service; (c) that § 494.-010, RSMo 1969, deprives him of the right to a representative jury by excluding persons eighteen to twenty-one years of age and (d) that § 494.010 is “vague and over-broad,” in allowing the jury commissioner of St. Louis arbitrarily to exclude qualified veniremen. Defendant also claims the trial court erred in: (2) admitting in evidence a pocket knife and pistol seized following a warrantless arrest made without probable cause; (3) permitting tainted in-court identification of defendant; (4) admitting testimony concerning defendant’s extra-judicial statements not delivered to defense counsel during pretrial discovery; (5) allowing the testimony of two children under the age of ten, and (6) “in not sustaining defendant’s motion for new trial.” We affirm.

While Virgil Little, age seven, and Ron-del Little, Jr., age eight, were sitting on the front porch of their South Ninth Street home in St. Louis late in the afternoon of July 24, 1975, a man approached and asked if they would like “a soda” or “a ride.” When they demurred, the man dragged Virgil two blocks to a vacant lot and stabbed him four times about the rectum with a pocket knife. Rondel, Jr., saw the stabbing and ran to his house to get his father. When Rondel, Sr., reached the corner of his block, he saw his son lying on the ground with the attacker standing over him. The father, who viewed the man only from the back, chased the assailant some distance before losing him.

Police officers talked to Virgil’s brother and father at the hospital, where Virgil had been taken for treatment. The father described his son’s assailant as a black man wearing dark trousers and a black shirt with a white flower pattern, about 5'8" or 5'9" in height. Rondel, Jr., told the officers that the man had a beard of a particular type, that he was “rather tall” and in his twenties, and that he was wearing dark trousers and a black shirt with white flowers. He also told them of a light-colored car in which the assailant and another person were seated before the assailant approached the boys.

A woman who claimed to have witnessed the incident spoke to Mr. Little while at the hospital and gave him the license number of the car in which the assailant had ridden. She refused Mr. Little’s request to talk to the police. Mr. Little knew where she had once lived but did not know her name and subsequent efforts to locate her were unsuccessful. It was later in the evening before Mr. Little was able to pass this information to the officers; however, while officers were still at the hospital, a woman phoned asking for the “policemen handling the assault case.” She did not give her name, but described the man as a black male in his twenties wearing a black shirt with white flowers, who had ridden in a tan car and she gave them the license number of the car.

Obtaining the street address of the party to whom the license plate was issued, Officers Holdenreid and Harris proceeded there and found a cream-colored auto, with four occupants, bearing the plate described by the informant. Defendant, who was sitting in the rear seat, matched the description the officers had obtained so they ordered him from the car and arrested him. In the ensuing search of his person they found a fully loaded .22 automatic and a pocket knife. Defendant was promptly advised of his rights under Miranda, and transported to police headquarters.

About 9:00 p. m., wearing a black shirt with white flowers defendant was placed in a lineup with four other men, one of whom was wearing a flowered shirt of a different color. The difference in height among some of the participants may have been a matter of inches; however, they were described as fitting the general height and description of the defendant, including facial hair. Rondel Little, Jr., and his father viewed the lineup at the same time and though Rondel, Sr., could identify only defendant’s clothes as the same as the assailant’s, the boy without prompting pointed out defendant as the attacker.

According to the officers, defendant, who was again advised of his rights, asked what the charges were and when told “carrying a concealed weapon and assault,” stated that “he was good for the gun charge but didn’t know anything about any black boy, white boy or even a blue boy.” On the other hand, defendant testified that after he had been told of the charges, he asked why he was being booked for assault and the officers answered “child molestation,” to which he replied, “I didn’t child molest no kid.” He testified that during this time he heard another officer “sitting from a distance” mention that a white child was involved.

At the hearing on defendant’s motion to suppress, Rondel, Jr., was unable to identify the defendant. However, on viewing a photograph of the lineup at the police station, he pointed to the person in the photo he had identified at the lineup. At trial the same day, be again indicated defendant in the photo as the person whom he had identified at the lineup and pointed out defendant in the court room. On cross-examination, he testified that his failure to make an identification of the defendant at the suppression hearing occurred because he had not looked at the .man to whom the prosecuting attorney had pointed. During the suppression hearing, Virgil, the seven year old victim, was unable to identify defendant as his attacker except to describe the man as a black wearing a flowered shirt. Defendant offered an alibi defense to the charge of assault but admitted he was carrying the gun illegally.

Defendant’s constitutional attack on the composition of the jury first centers on its racial composition. In support of the oral motion made immediately before trial to strike the array, defense counsel noted that it contained twice as many whites as blacks. The jury eventually chosen contained only two blacks. Defense counsel without documentation or suggestion of proof asserted that the black population of St. Louis is “around 40 to 50 percent,” and claimed denial of defendant’s right to a jury of his peers under the sixth amendment of the federal constitution made applicable to the states by the fourteenth amendment, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

The Court in Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 697, 42 L.Ed.2d 690 (1975), stated:

We accept the fair-eross-seetion requirement as fundamental to the jury trial guaranteed by the Sixth Amendment . . . . Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial.

That blacks form an “identifiable segment in the community” needs no proof. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). However, more than bare assertions of counsel are required to show a constitutionally impermissible exclusion of an identifiable class from a panel.

It is clear that the accused has the burden of presenting a prima facie case of racial discrimination before the state is required to justify its jury selection procedures. Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). A prima facie case may be shown by demonstrating the statistical improbability that the observed discrepancy between the proportions of class members called to jury duty and of the class members to the population of the jurisdiction would occur by chance, together with the opportunity for subjective choice by officials during the selection process. Alexander v. Louisiana, supra; Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970). Additionally, a prima facie case may be made on a showing of an almost-complete exclusion of the class (whatever the selection procedures), for a significant period of time. This has been described as the “rule of exclusion.” Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954). See also Washington v. Davis, 426 U.S. 229, 241, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).

Defendant failed in his proof. Had the court been free to take judicial notice of the proportion of blacks in the population of the City of St. Louis, defense counsel pointed out the composition of only a single jury panel and petit jury in support of the claim of discrimination. Nothing was offered showing repeated exclusion of an ostensibly neutral selection procedure, nor a procedure under which a subjective evaluation of potential jurors could hide discrimination. There was no proof as to racial composition or of the method of name selection for the “wheel” for the year or other representative period, nor are we told of the selection process or racial composition of the panel by months, weeks or days from which the array presented on the day of trial was selected. From this absence of proof it cannot be said a prima facie case of racial discrimination appears.

Defendant next asserts that § 494.-031(2), RSMo Supp.1975, offers a constitutionally unacceptable automatic exemption from jury service to any woman who requests it. The data necessary to support a sex based challenge to the jury’s composition was simply not presented. No evidence was offered to demonstrate the sexual composition of the wheel, panel or jury. We adhere to our ruling in State v. Duren, 556 S.W.2d 11 (Mo. banc 1977), cert. granted sub nom. Duren v. Missouri, 435 U.S. 1006, 98 S.Ct. 1875, 56 L.Ed.2d 387 (1978), and this contention is denied.

We reject defendant’s claim that § 494.010, RSMo 1969, unconstitutionally excludes those eighteen to twenty-one years of age from jury service under the authority of State ex rel. McNary v. Stussie, 518 S.W.2d 630 (Mo. banc 1974).

Finally, defendant asserts as unconstitutional the qualifications for jurors prescribed by § 494.010, RSMo 1969. That section provides in part:

Every juror, . . . shall be . sober and intelligent, of good reputation, over twenty-one years of age and otherwise qualified.

As we understand defendant’s contention, he asserts that the jury commissioner of St. Louis may exclude particular jurors on the ground that they are not “sober and intelligent” or “of good reputation” in spite of the fact that others would conclude the jurors so excluded in fact satisfied these requirements. It does not appear that he asserts these requirements are facially invalid or that they conceal a practice of excluding potential jurors in connection with other unconstitutional challenges, cf. Carter v. Jury Commission of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970), and again defendant has failed to offer evidence concerning application of these requirements in the selection process. We find this contention without merit.

Defendant next asserts the warrantless arrest was without probable cause as the only information then available “consisted of a license plate number and a description of the clothing worn by the alleged assailant, [and that information] had been supplied by an unidentified female informant.” Relying on United States v. Calovich, 392 F.Supp. 52 (W.D.Mo.1975), defendant maintains that the unsubstantiated tip from an anonymous informant failed to provide probable cause for the arrest. See also Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). From this he argues that the gun and pocket knife seized by the officer should have been suppressed.

Defendant’s reliance on Calovich is misplaced. The record demonstrates a factual predicate far different from that defendant describes. A complete description of the assailant and his association with a light-colored automobile came from the victim’s brother and (in part) his father at the hospital. This information constituted ample probable cause for the arrest of defendant. More similar is State v. Murray, 445 S.W.2d 296, 298 (Mo.1969), in which the overtaking of a car at 3:00 a. m., fitting a description of white over black convertible that was proceeding away from the town where a robbery occurred just minutes before, was held to constitute probable cause. In the case at bar, tracing the license number of the car provided a lead for the police to locate the suspect; the other information provided the probable cause for his arrest once located.

We find no error in admitting testimony relating to the out-of-court identification by Rondel Little, Jr., at the lineup on July 24, 1975. Defendant makes much of the fact that defendant was the only man in the lineup wearing a black and white flowered shirt, arguing that as a consequence the lineup was “overly suggestive.” Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977), teaches that reliability, rather than suggestiveness, “is the linchpin in determining the admissibility of identification testimony . .” The Court explicitly rejected the principle that unnecessarily suggestive identification procedures per se required the exclusion of testimony about out-of-court identification made as a result of such procedures. Instead, it reiterated the “totality of the circumstances” approach in weighing the reliability of out-of-court identifications. It enumerated at 114 the factors listed in Neil v. Biggers, 490 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), as controlling:

These include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

Rondel, Jr., had ample opportunity to view the man who stabbed his brother. The man walked to the place the boys were sitting, in the late summer afternoon, and paused to ask them questions. Rondel, Jr., testified that he saw the man’s face and his clothes. Because the man engaged the boys in conversation, Rondel’s attention was directed toward him. The boy’s description of the criminal included his clothes, the cut of his beard, and his approximate age, demonstrating both a capacity to remember what he had seen and, when checked against the description given by the informant, the accuracy of his memory. No trace of vacillation in Rondel, Jr.’s identification at the lineup can be gleaned from the record. The time between his original encounter and viewing the assailant in the lineup was at most a few hours. Finally, whatever the significance of defendant’s clothing at the lineup, the record demonstrates that Rondel, Jr., noticed differences among the men as to their beards and general appearance, as well as to their clothing, which formed the basis of his lineup identification. We find the record concerning the lineup identification supports the action of the trial court admitting the identification testimony during trial. The out-of-court identification was reliable, and it cannot be said to have tainted the in-court identification.

Defendant next contends error in the trial court’s admitting evidence of defendant’s statement denying any attack on a boy, because defense counsel was not provided with a copy of that statement pursuant to Rule 25.32(A)(2). The record does not demonstrate whether a written request for discovery was filed by defendant in accordance with Rule 25.32(A), but as the State does not raise the point, we will assume arguen-do it was filed. It is uncontroverted that a police report defense counsel was furnished prior to trial stated that the defendant had made no statements and that the statement in question was contained in a supplemental police report which defense counsel did not receive. Defendant first learned of the statement at the suppression hearing. She asked the officer at the hearing whether that statement had been embodied in a police report, to which the officer answered in the affirmative, but counsel took no further action to obtain it. She raised no objection to it then or at any time before trial on the ground now asserted.

The trial began in the morning of August 24, 1976, immediately following the suppression hearing. Officer Holdenreid testified to the statement during the trial over defense counsel’s objections. Officer Harris was prepared to testify to the statement when the court recessed for the night on August 24. The prosecuting attorney provided a photocopy of the supplemental police report to defense counsel that evening. The trial judge heard arguments in chambers on defendant’s renewed objections on the morning of the 25th. The State rested its ease in chief and later that day the defense presented its evidence, including defendant’s version of the statement.

Defendant now insists that the untimely disclosure of the controverted statement came too late to change the defense strategy at trial. It is implicit in this argument that the defense strategy would have been different had the statement been disclosed on time. The State counters that the oral disclosure of the statement before trial permitted the defense to reshape the trial strategy, and further that the trial strategy adopted by the defendant at trial dealing with the statement demonstrates no prejudice occurred.

Defendant’s claim of error is not well taken. Rule 25.45 includes continuances among the remedies the trial court can order for improper withholding of discovery material, yet at no time did defense counsel request a continuance. See State v. Wendell, 547 S.W.2d 807 (Mo.App.1976). The question of remedies lies within the sound discretion of the trial ¡court, State v. Davis, 556 S.W.2d 45 (Mo. banc 1977); State v. Johnson, 524 S.W.2d 97, 103 (Mo. banc 1975), and clearly the trial court considered suppression of the statement inappropriate. We find no abuse of discretion in that determination. While a continuance may have been warranted, the defense in mapping its strategy chose not to request such action. Further, no fundamental unfairness resulted from the State’s late compliance with Rule 25.32(A)(2). State v. Johnson, supra; State v. Davis, supra. Defendant’s trial strategy obviously included his taking the stand in support of his alibi defense; accordingly it is difficult to say that introduction of the statement per se compelled him to take the stand. In addition, defendant’s testimony challenged the policemen’s version of the statement and its context, presenting a sharp contradiction for the jury to resolve. His testimony was entirely consistent with the theory of his defense — that he knew nothing of the attack until the police told him about it. No prejudice appears.

Defendant for his next contention of error relies on § 491.060(2), RSMo 1969, which establishes a rebuttable presumption that children under the age of ten are incompetent to testify. State v. Groves, 295 S.W.2d 169 (Mo.1956). At the time of the trial, Rondel, Jr. was nine and Virgil, eight. The trial court did not rule on their qualifications as witnesses, apparently because the matter was not raised by counsel. Whatever claim defendant may have had on this point was abandoned when defense counsel failed to object to their testimony, State v. Hastings, 477 S.W.2d 108 (Mo.1972), and later sought to recall the boys for further examination by the defense.

Finally, defendant asserts that “the trial court abused its discretion in not sustaining defendant’s motion for new trial.” The point fails to comply with Rule 84.04(d) and preserves nothing for review.

The judgment of the trial court is affirmed.

MORGAN, C. J., BARDGETT and FINCH, JJ., and HOUSER, Special Judge, concur.

DONNELLY, J., dissents in separate dissenting opinion filed.

SEILER, J., dissents and concurs in separate dissenting opinion of Donnelly, J.

SIMEONE, J., not participating because not a member of the Court when cause was submitted.

DONNELLY, Judge,

dissenting.

In determining the admissibility of testimony relating to the out-of-court identification by Rondel Little, Jr., the majority follows the teaching of Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977), that reliability, rather than suggestiveness, “is the linchpin in determining the admissibility of identification testimony . . . .” Finding this teaching unpersuasive, I must dissent.

The necessity for my dissent is well formulated by the words of Mr. Justice Marshall, writing for himself and Mr. Justice Brennan, dissenting in Manson,

“Today’s decision can come as no surprise to those who have been watching the Court dismantle the protections against mistaken eyewitness testimony erected a decade ago in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). But it is still distressing to see the Court virtually ignore the teaching of experience embodied in those decisions and blindly uphold the conviction of a defendant who may well be innocent.
“The magnitude of the Court’s error can be seen by analyzing the cases in the Wade trilogy and the decisions following it. The foundation of the Wade trilogy was the Court’s recognition of the ‘high incidence of miscarriage of justice’ resulting from the admission of mistaken eyewitness identification evidence at criminal trials. United States v. Wade, supra, 388 U.S., at 228, 87 S.Ct., at 1933. Relying on numerous studies made over many years by such scholars as Professor Wigmore and Mr. Justice Frankfurter, the Court concluded that ‘[t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.’ Ibid. It is, of course, impossible to control one source of such errors — the faulty perceptions and unreliable memories of witnesses — except through vigorously contested trials conducted by diligent counsel and judges. The Court in the Wade cases acted, however, to minimize the more preventable threat posed to accurate identification by ‘the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.’ Ibid.
* * * * * *
“ . . . The crux of the Wade decisions, however, was the unusual threat to the truth-seeking process posed by the frequent untrustworthiness of eyewitness identification testimony. This, combined with the fact that juries unfortunately are often unduly receptive to such evidence, is the fundamental fact of judicial experience ignored by the Court today.
* * * * * *
“ . . . The Court weighs three factors in deciding that the totality approach, which is essentially the test used in Biggers, should be applied. Ante, 432 U.S. at 111-113, 97 S.Ct. at 2251—2253. In my view, the Court wrongly evaluates the impact of these factors.
“First, the Court acknowledges that one of the factors, deterrence of police use of unnecessarily suggestive identification procedures, favors the per se rule. Indeed, it does so heavily, for such a rule would make it unquestionably clear to the police they must never use a suggestive procedure when a fairer alternative is available. I have no doubt that conduct would quickly conform to the rule.
“Second, the Court gives passing consideration to the dangers of eyewitness identification recognized in the Wade trilogy. It concludes, however, that the grave risk of error does not justify adoption of the per se approach because that would too often result in exclusion of relevant evidence. In my view, this conclusion totally ignores the lessons of Wade. The dangers of mistaken identification are, as Stovall held, simply too great to permit unnecessarily suggestive identifications. Neither Biggers nor the Court’s opinion today points to any contrary empirical evidence. Studies since Wade have only reinforced the validity of its assessment of the dangers of identification testimony. While the Court is ‘content to rely on the good sense and judgment of American juries,’ ante at 116, 97 S.Ct. at 2254, the impetus for Stovall and Wade was repeated miscarriages of justice resulting from juries’ willingness to credit inaccurate eyewitness testimony.
“Finally, the Court errs in its assessment of the relative impact of the two approaches on the administration of justice. The Court relies most heavily on this factor, finding that ‘reversal is a Draconian sanction’ in cases where the identification is reliable despite an unnecessarily suggestive procedure used to obtain it. Relying on little more than a strong distaste for ‘inflexible rules of exclusion,’ the Court rejects the per se test. Ante, at 113, 97 S.Ct. at 2252. In so doing, the Court disregards two significant distinctions between the per se rule advocated in this case and the exclusionary remedies for certain other constitutional violations.
“First, the per se rule here is not ‘inflexible.’ Where evidence is suppressed, for example, as the fruit of an unlawful search, it may well be forever lost to the prosecution. Identification evidence, however, can by its very nature be readily and effectively reproduced. The in-court identification, permitted under Wade and Simmons if it has a source independent of an uncounseled or suggestive procedure, is one example. Similarly, when a prosecuting attorney learns that there has been a suggestive confrontation, he can easily arrange another lineup conducted under scrupulously fair conditions. Since the same factors are evaluated in applying both the Court’s totality test and the Wade-Simmons independent-source inquiry, any identification which is ‘reliable’ under the Court’s test will support admission of evidence concerning such a fairly conducted lineup. The evidence of an additional, properly conducted confrontation will be more persuasive to a jury, thereby increasing the chance of a justified conviction where a reliable identification was tainted by a suggestive confrontation. At the same time, however, the effect of an unnecessarily suggestive identification— which has no value whatsoever in the law enforcement process — will be completely eliminated.
“Second, other exclusionary rules have been criticized for preventing jury consideration of relevant and usually reliable evidence in order to serve interests unrelated to guilt or innocence, such as discouraging illegal searches or denial of counsel. Suggestively obtained eyewitness testimony is excluded, in contrast, precisely because of its unreliability and concomitant irrelevance. Its exclusion both protects the integrity of the truth-seeking function of the trial and discourages police use of needlessly inaccurate and ineffective investigatory methods.
“Indeed, impermissibly suggestive identifications are not merely worthless law enforcement tools. They pose a grave threat to society at large in a more direct way than most governmental disobedience of the law, see Olmstead v. United States, 277 U.S. 438, 471, 485, 48 S.Ct. 564, 570, 575, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). For if the police and the public erroneously conclude, on the basis of an unnecessarily suggestive confrontation, that the right man has been caught and convicted, the real outlaw must still remain at large. Law enforcement has failed in its primary function and has left society unprotected from the depredations of an active criminal.
“For these reasons, I conclude that adoption of the per se rule would enhance, rather than detract from, the effective administration of justice. In my view, the Court’s totality test will allow seriously unreliable and misleading evidence to be put before juries. Equally important, it will allow dangerous criminals to remain on the streets while citizens assume that police action has given them protection. According to my calculus, all three of the factors upon which the Court relies point to acceptance of the per se approach.
“Even more disturbing than the Court’s reliance on the totality test, however, is the analysis it uses, which suggests a reinterpretation of the concept of due process of law in criminal cases. The decision suggests that due process violations in identification procedures may not be measured by whether the government employed procedures violating standards of fundamental fairness. By relying on the probable accuracy of a challenged identification, instead of the necessity for its use, the Court seems to be ascertaining whether the defendant was probably guilty. Until today, I had thought that ‘Equal justice under law’ meant that the existence of constitutional violations did not depend on the race, sex, religion, nationality or likely guilt of the accused. The Due Process Clause requires adherence to the same high standard of fundamental fairness in dealing with every criminal defendant, whatever his personal characteristics and irrespective of the strength of the State’s case against him. Strong evidence that the defendant is guilty should be relevant only to the determination whether an error of constitutional magnitude was nevertheless harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). By importing the question of guilt into the initial determination of whether there was a constitutional violation, the apparent effect of the Court’s decision is to undermine the protection afforded by the Due Process Clause. ‘It is therefore important to note that the state courts remain free, in interpreting state constitutions, to guard against the evil clearly identified by this case.’ Oregon v. Mathiason, 429 U.S. 492, 499, 97 S.Ct. 711, 716, 50 L.Ed.2d 714 (1977) (Marshall, J., dissenting.)”

The teachings of Neil v. Biggers and Manson v. Brathwaite have been widely criticized by commentators, see e. g., N. Sobel, Eye-Witness Identification: Legal and Practical Problems, §§ 37, 38 (Supp. 1977); Grano, Kirby, Biggers and Ash: Do Any Constitutional Safeguards Remain Against Convicting The Innocent? 72 Mich. L.Rev. 717 (1974); Pulaski, Neil v. Biggers: The Supreme Court Dismantles the Wade Trilogy’s Due Process Protection, 26 Stan.L. Rev. 1097 (1974); Recent Developments, Identification: Unnecessary Suggestiveness May Not Violate Due Process, 73 Colum.L. Rev. 1168 (1973); Note: Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stan.L.Rev. 969 (1977).

Citizens of the State of Missouri have in their constitution a guarantee that they will not be deprived of life, liberty or property without due process of law. Mo.Const. Art. I, § 10. This Court remains free to interpret the due process afforded Missouri citizens by this guarantee so as to protect against the well-documented dangers of mistaken eyewitness identification caused by unnecessarily suggestive identification procedures. I would, therefore, recognize that the due process clause of the Missouri Constitution prohibits the admission of testimony as to identifications made by unnecessarily suggestive procedures.

To apply this requirement to the facts of this case it is necessary to look no further than the opinion in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1966). One of the procedures specifically identified as unduly suggestive is a lineup procedure in which only the suspect is required to wear distinctive clothing like that which the criminal allegedly wore, id. at 233, 87 S.Ct. 1926. In the instant case, at the lineup where he was identified by Ron-del Little, Jr., only the defendant was required to wear a shirt of the distinctive pattern which figured so prominently in the description of the criminal given police by Rondel Little, Jr. and others. No reason or justification is given to indicate this procedure was necessary. The suspect could easily have been given a shirt which did not obviously stick out like the proverbial sore thumb.

I would reverse and remand for a new trial.

      . Because the allegation of unconstitutional exclusion here is the same whether the sixth amendment right to trial by jury is invoked or whether the fourteenth amendment’s guarantee of equal protection is asserted, the analysis of the equal protection cases may be applied to the question of proving that a jury is less than representative. Cf. Carter v. Jury Commission of Greene County, 396 U.S. 320, 330, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970). Since defendant is of the same class as that allegedly excluded from the jury, there is no standing problem with regard to equal protection claims. Counsel has not grounded the attack on the jury on equal protection but here the two claims overlap.

      . There is no requirement of proportional representation on a particular panel or petit jury. Swain v. Alabama, 380 U.S. 202, 208, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

      . Chapter 498, RSMo 1969, governs jury selection procedures in the City of St. Louis. Section 498.120.1, RSMo 1969, provides that § 494.010, among others, will apply to potential jurors in St. Louis. Section 498.120.3 mandates that the jury commissioner inform himself of the qualifications of residents who may be liable to be summoned for jury duty. The jury commissioner’s power to strike potential jurors from the lists as unqualified is found in § 498.110.3. The board of jury supervisors is given concurrent responsibility to oversee the qualifications of potential jurors and strike unqualified persons from the lists by § 498.020. Finally, the trial court has the final responsibility to strike jurors who appear unqualified as a result of their answers to the voir dire examination. § 498.120.4.


source: Caselaw Access Project

author: JOSEPH J. SIMEONE, Special Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. William Chapman OLIVER, Appellant.
    No. 60617.
    Supreme Court of Missouri, En Banc.
    Oct. 10, 1978.
    Rehearing Denied Nov. 6, 1978.

      J. Martin Hadican, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Jeff Schae-perkotter, Asst. Atty. Gen., Jefferson City, for respondent.
   JOSEPH J. SIMEONE, Special Judge.

I.

Defendant-appellant, William Chapman Oliver, was charged by information and found guilty by a jury of murder in the second degree, Section 559.020, RSMo 1969. In accordance with the jury verdict entered October 31, 1975, defendant was sentenced on January 23, 1976, to 20 years in the division of corrections. He appealed to the Court of Appeals, Springfield District, which affirmed the conviction. On appellant’s motion, we granted transfer of this cause and now decide the case under the provisions of Article V, § 10, Mo.Const.; Rule 83.03.

Appellant urges two points for reversal: (1) that the trial court erred in overruling his motion for continuance made at the beginning of trial to allow appellant a reasonable opportunity to convince a reluctant out-of-state witness to voluntarily return to Missouri to testify on his behalf, and (2) the trial court erred in giving Instruction No. 6 — -a manslaughter instruction (MAI — CR 6.08). We reject both points and, for reasons hereinafter stated, affirm the judgment of conviction.

II.

On October 28, 1971, Marilyn Oliver, the estranged wife of the defendant was found dead on a farm in Franklin County. Her body was partially decomposed and an autopsy showed she had been shot five or six times.

On August 31, 1972, defendant, William Chapman Oliver, was indicted for the murder by a Franklin County grand jury. The indictment charged defendant with shooting to death his estranged wife with a .38 caliber revolver on or about October 19, 1971.

On February 5, 1973, upon defendant’s motion, a change of venue was granted to Phelps County and the jury, on August 31, 1973, found defendant guilty of murder in the second degree and assessed his punishment at 25 years imprisonment. By mandate of the court of appeals, this judgment was reversed and the cause remanded for a new trial. State v. Oliver, 520 S.W.2d 99 (Mo.App.1975). The cause was retried and the defendant was found guilty and the jury assessed his punishment at twenty years.

Before the trial of the present cause, a change of venue was granted to Dent County. An information in lieu of indictment was filed charging defendant with second degree murder.

Trial of this cause commenced on October 28,1975. Since defendant does not question the sufficiency of the evidence we need not detail all of the complicated facts. Suffice it to say that the jury could reasonably find the following. At the time of the critical events in 1971, defendant was a police officer in the City of St. Louis.- He married Marilyn in the Spring of 1967 and they lived together until late 1970 or early 1971. At the time of the events in question Marilyn was living in an apartment in Floris-sant, Missouri. Mr. Oliver and one Richard Woodcock were sharing an apartment at another location. Marilyn was employed at a baking company.

The events are difficult to detail. Much of the evidence by various witnesses focused on the defendant owning or having in his possession over a period of time a nickel or chrome plated pistol with white grips— exhibit 18, the murder weapon, and testimony of witnesses who stated that defendant had made certain incriminating statements about killing his wife. There was also evidence that the defendant had purchased “Norma brand” bullets — the same kind of bullets found in Marilyn’s body and fired from exhibit 18. There were also some discrepancies in certain interviews the defendant had with police officers of the Major Case Squad.

Prior to the time Marilyn’s body was found on a farm on October 28, 1971, Marilyn’s younger sister, Shirley Jean Folie, stayed with Marilyn on the weekend of October 16, and 17, 1971. Shirley described the clothing Marilyn had on at the time which was the clothing she had on when her body was found. Two witnesses testified that they took Marilyn to dinner on the evening of October 18, and returned to her apartment at about 11:30 p. m.

On the next Wednesday, October 20, an officer of the St. Louis Police Department — Officer Brooks — stopped the defendant when he was speeding. Defendant was off duty. At the time Brooks noticed the defendant carrying a “nickel or chrome plated pistol with white grips.” The officer testified that the gun, exhibit 18, “most definitely” resembled the gun defendant was carrying.

The scene then shifts to a bank robbery. On October 21, 1971, an armed robbery occurred in the city at Cass Federal Savings and Loan Association. The defendant was on duty and heard a broadcast about the robbery. The broadcast contained a reference to a license plate which was familiar to defendant because it was on an automobile driven by Marilyn. A second broadcast mentioned the name of James Leroy Cochran, who, defendant knew, was acquainted with Marilyn.

October 28, 1971, was a fateful day when many facts coalesced. On that day a special agent recovered the gun introduced in evidence from an abandoned automobile in Kentucky. The automobile had been left by Cochran who was wanted for the Savings and Loan robbery.

On that same day, a farmer discovered the partially decomposed body of Marilyn near Gerald, Missouri. The body was clad in the same or similar clothing Marilyn had worn. Police were called. The next day an autopsy was held. The body showed evidence of at least five bullets and perhaps six. One perforated the heart.

One of the state’s witnesses was Brenda McCleary. She was endorsed a few days before trial. It was her testimony that she and a friend, Mary Duvall, knew defendant and that the defendant possessed a nickel plated gun. Brenda testified that defendant made some incriminating statements concerning his wife’s death.

At the time of the trial, Brenda’s friend, Mary Duvall was residing in Georgia and was reluctant to come to Missouri to testify. Her deposition was taken by telephone and read. She did not remember Brenda telling her of any of the incriminating statements made by defendant.

Damaging testimony came from Kathleen Ann Cookson (Gilliam), a lifelong friend of Oliver’s girlfriend, Sandra. She testified that the defendant said that if Sandra’s husband would injure Sandra or his children, he would “pump them full of lead, like his wife.” She also testified that Oliver said, “Oh, my God! What have I done? I’ve killed my wife . . . .”

Over the months, the investigation into Marilyn’s death was carried on under the supervision of Major Robert R. Lowery and Officer Jay Noser. Officer Lowery testified as to certain interviews with the defendant in which the defendant first denied purchasing Norma brand bullets and then admitted it. Testimony also indicated that the defendant had not been honest in an earlier interview, and that defendant had made statements about throwing the remaining bullets away.

On May 12, 1972, approximately seven months after Marilyn’s death, defendant was interviewed by Major Lowery, and Detective Jay Noser. Defendant appeared voluntarily for the interview at Lowery’s request, and the interview was conducted in Lowery’s office. At the outset, Officer Lowery advised defendant of his constitutional rights, after which Officer Lowery asked defendant if he knew how Marilyn met her death. Defendant replied he did not. Lowery then asked defendant when he first became aware that Marilyn had disappeared. According to Lowery, defendant explained he was on duty on October 21, 1971, and heard the police radio report of the Cass Federal holdup. Lowery testified defendant said he recognized the license number as being the one on “Marilyn’s car”. Lowery recalled that defendant said he had seen the license plate at least ten or fifteen times. According to the officer, defendant said he knew James Cochran “slightly”. Lowery testified he then asked defendant if he had any Norma brand bullets and defendant replied “No.” At this time, Lowery told Noser to bring Sandra Little into the office. When Sandra entered, Officer Lowery recalled defendant saying “I told you, Sandra, to throw the bullets away, the remaining bullets . . . away in a sewer.”

Officer Noser corroborated Officer Lowery’s version of the May 12, interview, adding that defendant was asked if he ever owned or had a chrome plated gun, and defendant replied he never owned one. Officer Noser quoted defendant as saying he had no knowledge of purchasing any Norma brand bullets at any time. Noser recalled defendant saying he lied to Lowery about purchasing bullets to protect Sandra.

Defendant’s recollection of the interview on May 12 was that Lowery asked about the Norma ammunition and defendant did not remember buying any, so he replied “No.” At trial defendant admitted buying ammunition from a gun shop on several occasions. Defendant testified that Norma brand ammunition can be used in any .38 caliber “police special” and defendant admitted owning several such weapons. Defendant denied telling Lowery he lied to protect Sandra.

On July 20, 1972, defendant returned to the Police Station and asked to see Major Lowery “to find out more about the case”. On this occasion, according to Lowery, defendant said he had purchased the Norma brand bullets and “he had not been honest with me on the first interview because of Sandra Little and that Sandy Little had given the weapon used in the commission of these crimes to James Leroy Cochran

Sergeant Noser was present at the July 20, 1972, meeting between Major Lowery and defendant. Noser quoted defendant as saying he lied about the bullets to protect Sandra Little. Noser also recalled defendant saying the gun they had discussed on May 12 belonged to Sandra Little, and she had given it to James Cochran.

Brenda McCleary, a state’s witness who was endorsed a few days before trial testified. It was her testimony that she and her friend Mary Duvall met defendant about a week before Halloween, 1970. Brenda recalled that she and Mary were standing on a corner one evening and defendant and another officer, both in uniform drove up in a patrol car. Defendant introduced himself and invited Brenda and Mary to go for a motorcycle ride on Halloween night. Brenda was eighteen at the time. On Halloween night defendant met Brenda and Mary at Brenda’s residence and Brenda “went for a motorcycle ride with him first.” While she was seated behind him she “felt something over on the side” and asked him what it was. Upon stopping defendant showed Brenda a gun. The weapon was described as a “chrome or nickel plated pearl handle . ” Defendant took it out and tossed “it from one hand to another kind of juggling it back and forth.” This went on for “about five or ten minutes.” Brenda questioned him — “you know, asking what for, for what protection and he says he didn’t know if he should bust anybody for drugs or not.” When asked what he meant by that, Brenda stated “He didn’t give me any answer and he said his wife knew too much and that he had to get rid of her himself, and that he would do it.” Brenda identified the gun introduced in evidence as the gun defendant was carrying on that Halloween night. When the two returned to Brenda’s residence, “he said that if he could he would dance at his wife’s funeral . . .” Brenda testified that she told Mary Duvall about defendant’s statement the next day.

At the time of trial Mary Duvall was residing in Georgia and was reluctant to come to Missouri to testify. Her deposition was taken by telephone. The deposition was read. Mary recalled first meeting defendant at a hamburger restaurant where she was employed. She could not remember the year, but believed the month was October. According to Mary, the meeting occurred when Brenda came to the restaurant with defendant to “pick me up”. Mary remembered going for a motorcycle ride with defendant one Halloween but was unable to recall the year. She did not remember defendant coming to Brenda’s house and taking Brenda for a ride, nor did she remember leaving from Brenda’s house for a motorcycle ride with defendant. Mary also did not remember Brenda quoting defendant as saying he would dance at his wife’s funeral. Neither did she remember any discussion with Brenda concerning a pistol Brenda saw defendant carrying.

The defendant testified. He contradicted the testimony of many of the state’s witnesses and denied he ever had a chrome plated gun. He testified that the witnesses against him in stating certain facts had been “mistaken”. He denied killing his wife.

On the morning of trial, October 28,1975, defendant filed a motion for continuance alleging that a few days before, on October 22, 1975, the state notified defense counsel that the State intended to endorse Brenda McCleary as a witness and that the state would make the witness available for deposition. The motion further alleged Brenda’s deposition was taken on October 25, and during the course of the deposition, she stated that Mary Duvall was present with her during certain conversations between defendant and Brenda McCleary. The motion alleged that efforts were made to contact Mary Duvall and that defense counsel “ascertained” from her that she did recall certain events, but did not recall any conversation wherein defendant made certain incriminating statements. The defense therefore requested a continuance. Defendant requested that he be “granted a reasonable time within which to secure the presence of . Mary Duvall, who he understands is presently residing in the State of Georgia” in an attempt to refute the testimony of Brenda.

In explanation of his motion for continuance, defense counsel told the court that during a telephone conversation with Ms. Duvall she stated she did not want to return to Missouri to testify. The Special Prosecutor, who evidently also spoke with Mary advised the court that Mary “steadfastly does not wish to return to the State

The court overruled the motion for continuance but recommended that arrangements be made to “depose her by way of phone.” A telephone deposition was obtained from Mary on the afternoon of October 29, 1975, and was read into evidence, the substance of which is stated supra.

At the conclusion of the trial the court gave Instruction No. 5, the second degree murder instruction, MAI-CR 6.06 and Instruction No. 6 — manslaughter, MAI-CR 6.08. The cause was argued, the jury retired and after deliberation the defendant was found guilty of murder in the second degree and his punishment was assessed at twenty years. After overruling the motion for new trial, and granting allocution, the defendant was sentenced.

III.

As to the continuance issue appellant makes the point that the court erred in refusing the defendant a reasonable opportunity “to convince Mary Duvall to voluntarily return” to Missouri to testify on his behalf because the denial of the continuance violated his Sixth Amendment “compulsory process rights”, due process and Missouri constitutional rights to secure the attendance of witnesses, guaranteed by the Sixth and 14th Amendments of the U.S. Constitution and Art. I, § 18(a) of the Missouri Constitution.

Defendant cites no case directly in point which would authorize a continuance to allow the defendant a reasonable opportunity to convince a witness to voluntarily return to the state. Defendant concedes that legal process to compel the attendance of Mary Duvall was lacking at the time of trial because she was in Georgia and outside the subpoena power of Missouri.

We hold that the trial court did not err in denying the continuance under these circumstances.

First, it is true that the right of a defendant under the Sixth Amendment to have compulsory process for obtaining witnesses in his favor is applicable to the states through the Fourteenth Amendment, Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). That case, is not, however, dispositive of the issue here. Here the witness, Ms. Duvall was outside Missouri; she steadfastly refused to return to the state; she was deposed by the defendant by telephone after the defendant had taken the deposition of Brenda McCleary. In this case the trial court did not need to speculate about Mary Duvall’s attitude about returning. She had personal reasons for not returning. She expressed herself to counsel for both sides in unequivocal terms. She had no intentions to do so. Neither at trial nor on appeal did defendant suggest how he could have persuaded Mary to return or how much time would be needed to convince her to do so. She was deposed by telephone and her deposition was read.

Second, the trial court did not err in denying the continuance because the motion did not comply with the requirements of Rule 25.08 in all its particulars. State v. Lynch, 528 S.W.2d 454 (Mo.App.1975).

Third, an application for continuance in a criminal case is addressed to the sound discretion of the trial court. State v. Perryman, 520 S.W.2d 126, 128 (Mo.App.1975); State v. Collie, 503 S.W.2d 445, 446 (Mo.App.1978). The appellate court will not interfere unless it clearly appears that such discretion has been abused. State v. LeBeau, 306 S.W.2d 482, 486 (Mo.1957). This principle is applicable when the continuance is sought to enable the defendant to produce an absent witness under subpoena and where the witness is not under subpoena. LeBeau, supra. One of the issues for the court to consider in ruling on such a motion is whether there is a reasonable probability that the personal presence of the witness will ever be obtained. In Le-Beau, in affirming the trial court’s denial of a continuance, we observed that the last known address of the witnesses were outside Missouri, thus beyond the jurisdiction of any process and that there were no facts to support satisfactorily the contention that the witnesses would voluntarily return to Missouri to testify. LeBeau, 306 S.W.2d at 487. “[I]t requires a very strong showing to induce the higher court to interfere, and it will disturb the action of the trial court only where a clear abuse of the discretion is shown.” State v. Thomas, 433 S.W.2d 537, 539 (Mo.1968) quoting from State v. Amerison, 399 S.W.2d 53, 55 (Mo.1966).

We find no infirmity or abuse of discretion here. Under the circumstances the court did not err in denying the motion for continuance.

IV.

As to his second point, appellant urges that there are two separate issues presented; (1) whether a defendant who has been charged with and found guilty of second degree murder may complain of the giving of a manslaughter instruction and (2) if he can whether the trial court may give an instruction on manslaughter when there “is no evidence at trial to support a conviction for manslaughter.”

The issue on this point is whether, defendant having been found guilty of second degree murder may complain of the giving of a manslaughter instruction.

On this specific issue the law has been steadfast and unchanging. The principle adhered to for over a century has been and is that there can ordinarily be no reversible error in the giving of a manslaughter instruction where the jury has found the defendant guilty of first or second degree murder. Appellant suggests that the court in giving a manslaughter instruction intimates to the jury that the defendant is guilty of some crime. That is not the case. It is a “forced” construction. Emory, 246 S.W. at 952. The court did not express an opinion as to the guilt or innocence of the defendant. The jury did not convict the appellant of manslaughter, hence the defendant could not have been prejudiced. We adhere to this principle which has been established over the years. Later decisions relied upon by the appellant have not diluted that principle. We therefore rule this point against appellant.

V.

The second portion of this point raised by the appellant is that the court erred in giving the manslaughter instruction because there was “no evidence at trial to support a conviction for manslaughter.” Since the defendant is in no position to complain of the giving of an instruction on manslaughter we need not resolve this sub-point.

The j'udgment is affirmed.

All concur.

      .He relies on several decisions including Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); State v. Lee, 491 S.W.2d 317 (Mo. banc 1973); State v. Schrum, 347 Mo. 1060, 152 S.W.2d 17 (1941); and State v. Morse, 515 S.W.2d 608 (Mo.App.1974). The state’s brief does not address this issue.

      . As to confrontation see discussion in State v. Brooks, 551 S.W.2d 634, 652-653 (Mo.App.1977). The authorities relied on by the appellant are not controlling, e. g., Ross v. State, 504 S.W.2d 862 (Tex.Cr.App.1974).

        . State v. Reece, 505 S.W.2d 50 (Mo.1974).

      . State v. Davis, 400 S.W.2d 141, 150 (Mo.1966), cert. den. 385 U.S. 872, 87 S.Ct. 142, 17 L.Ed.2d 99 (1966); State v. Mayberry, 272 S.W.2d 236, 243 (Mo.1954); State v. Bledsoe, 254 S.W.2d 618, 621-622 (Mo.1953); State v. Emory, 246 S.W. 950, 952 (Mo.1922); State v. Snead, 259 Mo. 427, 168 S.W. 602, 603 (1914); State v. Baker, 246 Mo. 357, 152 S.W. 46 (1912); State v. McMullin, 170 Mo. 608, 71 S.W. 221 (1902); State v. Goddard, 162 Mo. 198, 62 S.W. 697, 708 (Mo.1901); State v. Dunn, 80 Mo. 681, 693 (1883). There is a possible exception if error exists in the manslaughter instruction itself, thereby preventing the jury from convicting on manslaughter. State v. Brooks, 360 S.W.2d 622, 628 (Mo.1962). There is no such contention herein.


author: SEILER, Judge. BARDGETT, Judge,

text:
    UNITED LABOR COMMITTEE, INC., Appellant, v. John ASHCROFT et al., Respondents, and Freedom to Work Committee, Inc., Intervenor-Respondent.
    No. 61015.
    Supreme Court of Missouri, En Banc.
    Oct. 24, 1978.

      James G. Walsh, Jr., Kansas City, for appellants.
    John D. Ashcroft, Atty. Gen., Larry Marshall, J. Michael Davis, Asst. Attys. Gen., Jefferson City, for respondents.
    Cullen Coil, Jefferson City, for interve-nor-defendant.
   SEILER, Judge.

The threshold question in this case is whether an appeal lies from the action of the circuit court in certifying to the secretary of state an official ballot title and fiscal note.

Appellants, plaintiffs below, being dissatisfied with the official ballot title for Constitutional Amendment No. 23, proposed to be submitted to the voters at the general election of November 7,1978, petitioned the circuit court for a different official ballot title, setting forth the reasons why the official ballot title was unfair, as authorized by § 125.030.8, RSMo Supp.1977. After a hearing, the circuit court certified the original ballot title and fiscal note to the secretary of state to be used for the constitutional amendment. From this action the plaintiffs filed their notice of appeal. The attorney general has moved to dismiss the appeal, contending that the statute does not provide for an appeal from such certification by the circuit court and that plaintiffs are not otherwise entitled to an appeal.

It is well established that the right of appeal is statutory. Without underlying statutory authority there is no right to an appeal. Bolin v. Farmers Alliance Mut. Ins. Co., 549 S.W.2d 886, 889 (Mo. banc 1977). Section 512.020, RSMo 1969, is the basic statutory provision granting the right to appeal in civil eases. State ex rel. State Highway Commission v. Armacost Motors, Inc., 502 S.W.2d 330, 331 (Mo.1973). In general, the right of appeal from a final judgment has been granted therein to the aggrieved party, where, however, an appeal is not prohibited by the constitution, “nor clearly limited in special statutory proceedings.”

Nowhere in Chapter 125 is there any provision for an appeal from the decision of the circuit court certifying to the secretary of state an official ballot title for a proposed constitutional amendment. The Chapter provides only for an appeal to the circuit court of the ballot title provided by the attorney general and forwarded to the secretary of state. Section 125.030.8 provides that the appeal of the ballot title to the circuit court shall be placed at the top of the civil docket, that the court shall make a timely consideration of the petition, examine the proposed constitutional amendment, hear arguments, and in its decision certify to the secretary of state an official ballot title for the proposed amendment. The statute then closes with the words “The secretary of state shall print on the official constitutional ballot the title thus certified to him.” There is no further appeal provided.

Section 125.030 is a special statutory proceeding for the handling of constitutional amendments. It provides for their numbering, the official ballot title, its preparation, for appeal by any dissatisfied citizen to the circuit court for a different ballot title, and provides how the appeal shall be handled. Thus by the language of Section 512.-020, quoted above, Section 125.030 is excluded from its compass.

As appellants point out, prior to 1977, the statute contained the words: “The decision of the circuit court shall be final.” By amendment in 1977, S.B. 97, these words were removed. This, however, is no more than the removal of a redundancy by the legislature, as even without the above words there is no right to appeal for the reasons stated earlier. Had the legislature intended to provide for an appeal from the certification of the circuit court it undoubtedly would have said so directly, in so many words, as it did when establishing the right in primary election contests. In that instance the prior law, § 124.050, RSMo 1969, provided that “The judgment of the [circuit] court in the cause shall be final and conclusive, from which there shall be no appeal.” In 1972, S.B. 628, the statute was amended to provide expressly that either party may appeal the judgment to the appropriate court of appeals district and provided further that the appellate court should give preference of hearing over all other cases. No such intent on the part of the legislature appears in the statute under consideration in the case before us now.

The basic statute on appeals, § 512.-020, being of no help to plaintiffs and Chapter 125, making no provision for appeal beyond the appeal to the circuit court, there is no right of appeal to this court or any appellate court on the part of plaintiffs and the motion of the attorney general to dismiss the appeal is therefore sustained.

Appeal ordered dismissed.

MORGAN, C. J., and FINCH, DONNELLY and RENDLEN, JJ., concur.

BARDGETT, J., dissents in separate dissenting opinion filed.

SIMEONE, J., dissents and concurs in dissenting opinion of BARDGETT, J.

BARDGETT, Judge,

dissenting.

I respectfully dissent. There are many statutes governing special actions which do not, in so many words, specify that an appeal to an appellate court is allowed or prohibits such an appeal. Some of these special actions are mandamus, quo warran-to and replevin.

Sec. 512.020 provides that a right of appeal exists from a judgment of any trial court, in “any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, . . .” (Emphasis supplied.) As pointed out in the principal opinion, the legislature knows how to “clearly” limit the right of appeal as they have done so in the prior law with respect to primary election contests. Former sec. 124.050, RSMo 1969, stated, “the judgment of the court in the cause shall be final and conclusive, from which there shall be no appeal.”

Chapter 125, under which this action is brought, does not explicitly nor “clearly” limit or prohibit an appeal. The fact of the matter is that the only words which could even possibly be construed to have that effect was the provision contained in chapter 125 prior to 1977, to wit: “The decision of the circuit court shall be final.” This sentence was removed by Senate Bill 97 in 1977. Therefore, at this time there is simply nothing in this statute which clearly limits the right of appeal or prohibits it. The majority opinion simply arrives at that conclusion because the legislature saw fit to say what the effect of the court action would be by declaring that the Secretary of State shall obey the court order.

The principal opinion suggests that there is no appeal because the statute does not specifically so provide for an appeal. Sec. 512.020 does not require that a statute affirmatively provide for an appeal in order for there to be one. It grants the right of appeal generally unless the appeal is prohibited by the constitution or clearly limited. It is quite difficult to understand how an appeal could be “clearly limited” when the statute under consideration does not even mention the matter.

It may well be in the time constraints attending this type of action that the legislature may appropriately limit the right to appeal as they have previously done in primary election contests. But the fact of the matter is that they have not done so here.

Because the principal opinion does not undertake to uphold the ballot title prescribed by the Attorney General, I will not deal with the matter further in this dissent.

In my opinion, Chapter 125 does not clearly limit or prohibit the right of appeal by an aggrieved party and consequently the appellant had that right under sec. 512.020. I therefore dissent.