author: SHANGLER, Judge.

text:
    STATE of Missouri, Respondent, v. Jimmy D. DAYTON, Appellant.
    No. KCD27649.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.
    Motion for Rehearing and/or Transfer Denied March 29, 1976.
    Application to Transfer Denied May 5, 1976.
    See also Mo.App., 535 S.W.2d 479.

      Philip F. Cardarella, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Timothy J. Verhagen, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   SHANGLER, Judge.

The defendant Jimmy Dayton was indicted on four separate counts of felony. He was accused, in concert with others, of kidnapping two male youths and practicing upon them abominable and detestable crimes against nature. The jury returned convictions of ten years imprisonment for each count of kidnapping and ninety-nine years of imprisonment on each of the other two counts. The trial court ordered that the sentences be served consecutively.

The evidence of the State showed that Jerry Dayton and Sam Dayton, brothers of the defendant, and Millard Swenson, their uncle, were co-actors in the episodes of abduction and pederasty for which the defendant was convicted.

The defense was both alibi and innocence on the open-court testimony of Jerry Dayton that it was he and three others who had seized the youths and submitted them to torture and molestation.

The victims of these perversions were D.E., a boy of eleven years and his playmate, G.D., who was then seven years old. On the late afternoon of April 12, 1974, the boys had rummaged a trash bin on the parking lot of the Baltimore Bank at 31st and Main and were about to leave, when a blue-green car pulled onto the lot. According to the testimony of D.E., the older of the boys, after a preliminary inquiry of street location, the two occupants identified themselves as police officers and told the boys they were in arrest for the trespass of private property. [The witness identified the defendant as the driver.] One of the men flashed a badge and ordered the boys into the car. The men then told the boys that they were in search of two others for shoplifting; the car proceeded south on Main to Linwood where they encountered two men walking down the street carrying J. C. Penney bags. The car stopped, picked them up, then proceeded to a motel [identified by photographic exhibit as the Travel-odge at 3240 Broadway], and entered room 210.

It was the further testimony of D.E. that once inside the room, their abductors continued to conduct themselves as police officers; they feigned a search of the room, undertook a mock interrogation of the other two men and ordered the boys to disrobe and be searched for weapons. The men also disrobed. The boys were then made to shower on the pretext that such an amenity would not be available in jail. The boys were separated; D.E. was brought into the bedroom and the younger boy was made to remain in the bathroom.

Once in the bedroom, the defendant directed D.E. to take his penis into his mouth, but the boy refused. The boy was then made to lie on the bed, and thus prone, was gagged and blindfolded with cloth and tape, and tethered by his wrists and ankles to the four corners of the bed. D.E. testified that five separate acts of anal penetration followed, the first four by men of different weights who lay upon him in succession, and the fifth by a hard irregular object which hurt him. [The latter reference was to the dildo, an artificial priapus of exaggerated size, the boy had first seen in the bathroom of the motel and then in the bedroom strapped to the defendant.] At the time the dildo [exhibit 11] was inserted into the boy, one of the men warned the others that it would kill him, but it was applied anyway. This penetration caused the boy to scream and induced a defecation which covered the bedsheet. The boy was also shocked and hurt by the intermittent application of a cattle prod against parts of his body. At the conclusion of these molestations, the ties, gag and blindfold were removed and D.E. was released to wash in the bathroom and dress. The boys were separated once again; while D.E. was in the bathroom, his younger companion was taken into the bedroom.

The testimony of G.D. corroborated the narrative given by D.E. of abduction by two men who identified themselves as police officers, and their asportation by car to the motel in the company of the other two men picked up by the others. G.D. identified the defendant as the driver of the vehicle. He, too, was told to disrobe and bathe and remained there alone while his companion was in the bedroom. First one of the men, and then another [neither of whom he could identify], came into the bathroom and placed his penis into the mouth of the boy. Then he was taken into the bedroom, spread upon the bed and tied, gagged and blindfolded, he was subjected to a single act of rectal sodomy. Also, he was" shocked by the cattle prod. G.D. recalled the defendant led him into the bedroom from the bathroom, but could not say whether he was in the room when the perversions were practiced upon him or who or how many took part.

When the boys had dressed, they were taken to the automobile, warned not to report the event, and released at the Foremost Dairy premises at 31st and Gilham Road. Immediately upon their return home, each boy reported what had happened to his parents. The mother of G.D. noticed rope burns on the hands and legs of her son. [D.E. testified that similar impressions had been made on his body.] She testified that her son arrived home about 8 P.M. on that day and that she had last seen him with D.E. at about 4:00 P.M. Thus, although neither of the boys could remember the time of the criminal events at the trial, it is apparent that they took place sometime between those hours. The police were called and they responded shortly after 9:00 P.M. The boys were taken to Chil-drens Mercy Hospital for examination. D.E. was found to have suffered a tear of the anal mucosa; the findings on the medical examination of G.D. were not disclosed in evidence.

The older of the two boys, D.E., then' led Officer Dale Meadows and Detective Bernard Gowin of the Kansas City police department to the site of the abduction, and then led them along the same route they had been taken to the motel. He told of the blue-green Chevrolet, gave a general description of the four suspects, the badge and other paraphernalia used in the crimes. At the motel parking lot, D.E. pointed out the car, and then led the officers to room 210. The officers learned from the desk that the room was let to the defendant, his two brothers and uncle. In order to avoid a confrontation between D.E. and the suspects, the boy was left with the manager. It was about 1:00 A.M. when the officers knocked on the door of room 210 and were admitted. They found the three Dayton brothers and Swenson ready for bed. The four suspects were arrested and a search of the premises recovered tape from a receptacle in the bed area, towels, washcloths and bedpad from the bathroom. These were given to a police evidence technician at the scene for laboratory analysis. He testified that towel and cloth were stained red and yellow, and that marks of blood and defecation appeared on the bedpad. A search of Sam Dayton revealed a knife [identified by G.D. as the weapon wielded by one of the abductors].

As the men were led to the police wagon, Sam Dayton asked Officer Gowin for his jacket from the car. He gave the officer the key to the Chevrolet. Gowin then picked up the jacket from the car seat and noticed a wallet which was found to contain a badge with the inscription: Special Police, Maryland. The four suspects were taken to the police station where Officer Gowin conducted a line-up.

Six men comprised the line-up; the four suspects and two others. The two boys were kept separate and free from suggestion during the identification procedure; each was given a card for the notation of the number designation of any of the men on view who had been involved in the events earlier that day. The numbers noted by D.E. identified the three Daytons and Swenson as the men who had abused him. At the trial, he identified the same four men from a photograph of the line-up taken by Gowin. The younger boy, G.D., picked three from among the six men at the lineup, Jerry Dayton, Millard Swenson and the defendant Jimmy Dayton, but identified all four from the photograph at the trial.

The final witness for the prosecution was Doctor Matthias Yoong, a forensic chemist, who examined the property impounded by Mosby, the police evidence technician. He obtained cranial hair standards from the two boys and the four suspects for comparison with hair filaments taken from the tapes found in the motel room receptacle. The strands from the tapes fell within the limits of variance of the cranial standards taken from the two boys, but not within those taken from any of the suspects. Hairs collected from the bedpad were compared with standards taken from the four men and were found to fall within the limits of the head hair standards taken from Sam Dayton and Millard Swenson. Doctor Yoong also found seminal and fecal stains on the bedpad, blood on the washcloths, and seminal stains on the towel.

The defense was alibi. The defendant Jimmy Dayton testified that he had come to Kansas City from his Maryland residence and registered at the Travelodge Motel. On the day of events in issue, he with his brothers, Jerry and Sam, and uncle, Millard, left the motel at about noon for the residence of one Tyler. Once there, he spent the afternoon in an upper bedchamber with Susan Hogan, who lived there with the Tylers, and did not emerge until about 5 P.M. He, brothers and uncle, left about 9 P.M. but did not arrive at the motel until after 10:30 P.M. They found the room in disarray. It was not until two weeks later that his brother Jerry told him that he and three others, strangers to the defendant, had abducted and molested the two boys.

The brother of the defendant, Jerry Dayton, also under indictment for the same charges, corroborated the testimony of the defendant that the four kinsmen left the motel at about noon of the day in question for the Tyler residence. There an argument developed between Jerry and brother Sam concerning the attentions of Patty McCormick, one of the guests, so at about 2:30 P.M. he left in the Chevrolet. He drove around, sniffed glue, drank beer, and about an hour later, joined four men with whom he had worked in the carnival [Billy Smith, Paul Asher, Hurst Jones and Hip]. At the bank lot, they abducted the boys, took them to the motel room, tortured and abused them, and finally released them at about 9 P.M. at a dairy stand. Jerry Dayton testified that he lured the boys with the defendant’s special police badge, told them they were going to jail, required them to undress and bathe, blindfolded and gagged the boys, and in turn staked each to the bed. Hurst Jones became frightened at these antics and left. The remaining four each forced rectal intercourse with D.E. One of them, Asher, penetrated D.E. with a dildo which induced defecation and rectal bleeding. It was the further testimony of Jerry Dayton that the younger boy, G.D., was forced to take into his mouth the penis of two of the men, and to submit to the rectal sodomy of one other. This boy was also tortured by cattle prod.

On cross-examination, the witness acknowledged that he was suffering from cancer but denied that it was terminal or that his testimony was prompted by such an extremity.

The defense presented the testimony of two other alibi witnesses, Edna Sue Hogan and Thomas Raye, both resident guests at the Tyler home on April 12,1974, the day in issue. Ms. Hogan, seventeen years of age, admitted to conviction for burglary in complicity with Mary Dayton, sister of the defendant. It was her testimony that on that day, the three Daytons and Swenson arrived at the Tyler home at about noon and left together at about 9:30 P.M. She remembered well because on that afternoon she had yielded her maidenhood to the blandishments of the defendant in the bedchamber. Her testimony was equivocal as to whether Jerry was in the house when she and the defendant emerged from the bedroom at about 5:00 P.M.

The other witness, Tom Raye, saw the four arrive and then leave at about 9:30 P.M. He had been occupied for hours on a telephone in an upper room during their stay and did not say with any definiteness whether he saw Jerry between those hours.

On this appeal, the defendant brings a congeries of errors, most of which were not assigned on motion for new trial and are asserted as plain error. Among them, the contentions that:

1. the motel bathroom and automobile were subjected to illegal searches and that the seizure of linens and other accoutrements from the bedroom, and the discovery of the badge in the car, were fruits of warrantless and excessive searches;
2. The testimony of G.D. did not evince a sufficient memory of independent recollection of the observations of the alleged offense and should have been excluded;
3. The testimony of G.D. was suggested to him by leading questions and should have been excluded;
4. The identification of the defendant by the boys was induced by a suggestive line-up and should have been excluded; and
5. the closing argument of the prosecutor was so calculated to inflame the jury and arouse their prejudice against the defendant as to deprive him of due process of law.

Two other points, actually of single import, were preserved for our review and raise the contention that exculpatory evidence had been withheld from the defendant in violation of due process and the rules of criminal discovery.

Rule 27.20(c) which allows consideration on appeal of plain errors affecting substantial rights though not preserved for review does not propose to meliorate every trial lapse but only those of constitutional dimension. State v. Beasley, 404 S.W.2d 689, 690[1, 2] (Mo.1966); State v. Murphy, 521 S.W.2d 22, 25[2-4] (Mo.App.1975). The grant of relief by this rule, however, is one of discretion and conscience, and is rightly given only in cases where justice has miscarried. State v. Meiers, 412 S.W.2d 478, 480[1] (Mo.1967). There are constitutional errors which are legitimately refused consideration even under the plain error rule as where the procedures adopted to ensure orderly presentation and determination of such claims have not been met. Thus, a contention that a search and seizure were unlawful made for the first time on appeal may not generally be recognized. The procedures of Rule 33.03 provide that the adjudication of that issue shall be made by a motion made, in advance of trial, to suppress the evidence so obtained. The mov-ant has then the burden to sustain the contention by evidence, to keep the issue alive by timely objection, and to preserve it by motion for new trial. State v. Fields, 442 S.W.2d 30, 33 (Mo.1969); State v. Yowell, 513 S.W.2d 397, 402[1, 2] (Mo. banc 1974). This procedure for contemporaneous objection at the trial as a condition for review of an unlawful search and seizure claim serves a valid state interest and therefore does not deny due process of law. Henry v. Mississippi, 379 U.S. 443, 448[6, 7], 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). The interest served is the formulation by evi-dentiary hearing on the motion to suppress of a record which allows informed appellate review. State v. Thompson, 490 S.W.2d 50, 52[2] (Mo.1973).

The brief of the defendant on appeal asserts for the first time that the conviction of the defendant rests on evidence discovered as the result of an illegal foray by police into the lavatory of the motel room and an excessive search of the automobile. The contentions are that these searches, without formal warrants, were not otherwise incident to the arrest; that although the law allows search incident to a lawful arrest to prevent the suspect from access to a weapon or the destruction of evidence, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) confines such police activity to an area within the control of the arrestee, which under the circumstances excludes the motel bathroom. The other contention is that the badge was discovered as the result of an exploratory automobile search; that although the initial access to the vehicle was legitimate response by the police to the request by an arrestee for his coat, the badge was encased and not in plain view, and thus the search and seizure fall within the condemnation of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

These contentions were not presented to the trial court; there was neither pretrial motion to suppress, nor objection at the trial to the admission of the evidence, nor preservation for review in the motion for new trial. The same void which inhibits review of these issues in the normal course inhibits review as plain error: a record which lacks pertinent data. In the serious circumstances presented, in consideration that the evidence the defendant impugns as illegal so pervaded the trial and the judgment, we would have been disposed to a review of the searches and seizures under Rule 27.20(e) had these issues been formulated by evidence on a motion to suppress, even though the defendant may not otherwise have objected to the admission of the evidence at the trial or assigned the error in the motion for new trial. See: State v. Yowell, supra, 1. c. 402[1, 2]. But the State here was not allowed opportunity to justify the search which a motion to suppress may have proved. The evidence as it came in at the trial was not oriented to the validity of the searches, but to the discovery of the evidence. Even this random record suggests consent to the automobile seizure and the discovery of evidence open to view in the bathroom. See: State v. Thompson, supra, 1. c. 52[2], These assignments are denied review as plain error.

The next points relate to the competency of G.D. to give testimony and to an alleged prejudice to the defendant from suggestive questions asked of the boy by the prosecutor. These are contentions of trial error and are not subject to remedy under the plain error rule. State v. Murphy, supra, l. c. 25[2—4]; State v. Smith, 261 S.W.2d 50, 55[4, 6] (Mo.1953). They were not preserved for appellate review, so we do not reach their merits. It is sufficient to say that the voir dire examination of the witness satisfied all the tests of competency of a child who gives testimony. See: State v. Young, 477 S.W.2d 114, 116[1, 2] (Mo.1972). As to the suggestiveness of the questions, in the most important particulars the responses were not elicited and were otherwise corroborated by other evidence. The prosecutor did lead the child and aid him to describe, in his own idiom, the phallus and the act of fellatio, but that was more a matter of delicacy than advantage. These points are denied review as plain error.

The claim that the line-up identifications of the defendant by the boys were suggested is also presented as plain error. The defendant did not move to suppress the identifications, nor object at the trial to the photographs of the procedure, thus his appellate position lacks systematic development in the record. The contentions here are that the line-up was exhibited early in the morning, a time when the boys were weary and sleepy, and that the array of the four suspects with only two others was so suggestive as to have induced the identifications as virtually inevitable. These criticisms are trivial. The evidence shows that at the time of the line-up the boys were alert, separated from each other, and carefully instructed in the identification procedure. The record affirmatively shows that they were kept from the undue police suggestion. State v. Word, 527 S.W.2d 708, 710[2, 3] (Mo.App.1975). Nor does the contention that only one of the persons on line-up exhibited facial hair render the procedure invalid. The law does not require such exactness of physical and personal features of the participants.

In any event, the uninterrupted exposure over a prolonged time to the physical presences of the four suspects provides an independent basis for their court identification of the defendant as an abductor and assailant. This point is denied.

The final contention of plain error is that the display of the artificial penis during the closing argument and other comment inflamed the passion and prejudice of the jury. The closing argument went without objection by the defendant. There is no suggestion here why the artificial device, otherwise legitimate evidence, should have been kept from the view of the jury. The contention is made that the exhibit as well as certain excerpted portions of argument were calculated to arouse the personal hostility of the jurors towards the defendant and resulted in the denial of due process. We have reviewed the record with care and conclude that the argument of the prosecutor was fair comment on the evidence. The point is denied.

The appellant next contends here, as did his motion for new trial, that the sentences of ninety-nine years on each count of sodomy constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. The punishment was within the statutory allowance and therefore, as a matter of law, is neither cruel nor unusual. State v. Vermillion, 486 S.W.2d 437, 441[9] (Mo.1972).

In his motion for new trial the defendant also contends that the failure of the prosecutor to disclose certain evidence was a denial of due process and, cumulatively, Rule 25 which relates to discovery in felony causes.

The defendant had made pre-trial request of the State for discovery under Rule 25.32 for disclosure of

(5) Any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons;
(9) Any material or information, within the possession or control of the state, which tends to negate the guilt of the defendant as to the offense charged, or reduce the punishment.

At the hearing on the motion for new trial, the state acknowledged that prior to the trial the State had received a written report of the physical examination of G.D., the younger boy, made by Dr. Joseph Gialde on the night of the offense. The report contained statements made by the boy to Dr. Gialde, but neither the report nor the statements was disclosed to the defendant. The portion of the report which the defendant contends was withheld to his prejudice stated:

On specific and direct questioning, he [G.D.] denies any felatio (sic) or anal penetration [with] any object at all. States that men did not strike him at all.

The defendant asserts that he was denied fundamental fairness by the nondisclosure because this statement contradicts the testimony of the complainant, and thus would have been admissible not only for impeachment but also as direct proof that sodomy was not committed upon the boy. The defendant cites Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963) for the principle that

[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to the guilt or punishment, irrespective of the good or bad faith of the prosecution.

This is a duty which our courts have also recognized and which discovery Rule 25.32 reposes on the prosecutor. State v. Abernathy, 525 S.W.2d 414, 416 (Mo.App.1975).

On the motion for new trial, the prosecutor sought excuse for the nondisclosure on the contention that, in response to the discovery request, he had opened his file to the defendant, but by some misadventure the medical report was overlooked by the defendant or misplaced by the prosecutor, and that the State should not be penalized for such an innocent neglect. The deception from a negligent nondisclosure causes no less injury to the administration of criminal justice than a suppression made by design or guile. The duty to disclose, whether under Brady or Rule 25.32, rests on the prosecutor, and the material and information are within his possession or control, the cause of his failure cannot soften the sanction. Giglio v. United States, 405 U.S. 150,154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Levin v. Katzenbach, 124 U.S.App.D.C. 158, 363 F.2d 287, 290[2] (1966). The questions remain whether the evidence requested suppressed was favorable to the defendant and material on guilt or punishment. Brady v. Maryland, supra, 373 U.S. l. c. 86, 83 S.Ct. 1194. The Brady requirement of materiality is satisfied when the evidence does no more than impeach the credibility of a wit ness whose testimony prejudiced the defense. State v. McClain, 498 S.W.2d 798, 799 (Mo. banc 1973). And, certainly, the purpose of Rule 25.32 includes opportunity to a defendant to prepare in advance of trial for the impeachment of a witness by his own statement. State v. Buckner, 526 S.W.2d 387, 392[3, 4] (Mo.App.1975).

It is the contention of the State that, notwithstanding nondisclosure, the evidence of Jerry Dayton for the defendant admitted that G.D. had been assaulted, forced to the act of fellatio, and tortured with a prod, so that the statement by the boy to Dr. Gialde was not material on any issue and, even if available, could not have affected the outcome of the trial. The defendant complains that the nondisclosure shaped a strategy of defense which proceeded on the assumption that the prosecutor had met his duty to make discovery.

Whether prejudice results in a given case depends upon the nature of the charge, the evidence presented by the State, and the role the undisclosed testimony would likely have played. Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842, 847[6] (4th Cir. 1964). It is clear that the medical document was relevant only upon Count III, the allegation of sodomy by the defendant upon G.D., and did not bear upon either count of abduction or the molestation of the other boy, D.E. The statement by G.D. to Dr. Gialde affected the other charges only to the extent that the conflict between his statement to the physician and his trial testimony may have disparaged the credibility of the boy before the jury. The proof by G.D. of the other counts was merely corroborative of the other sufficient and clear testimony of guilt and, in reasonable likelihood, the failure to disclose the contradictory statement made by G.D. to the physician would not have affected the judgment of the jury. Napue v. Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Ingram v. Peyton, 367 F.2d 933, 936[3] (4th Cir. 1966); State v. Allen, 530 S.W.2d 415, 419[3] (Mo.App.1975). As to Count III, the specific sexual abuses upon his person narrated by G.D. at the trial were proved independently by the defense, and unless we are to believe that the testimony of Jerry Dayton was contrived — an assumption we are unwilling to make — it is not apparent how the nondisclosure worked the defendant prejudice. We conclude, accordingly, that the evidence was not of a character to raise a reasonable likelihood that, if known at the trial, would have affected the result.

We reverse and remand the cause for retrial of Count III, however, because the judgment entered was on a submission without support in the evidence. In doing so, we deny the contention that the defendant was entitled to acquittal because the evidence was not responsive to the indictment.

Count III of the indictment undertook to charge the abominable and detestable crime against nature, an offense created by § 563.230, RSMo 1969. In terms, that section provides that

Every person who shall be convicted of the detestable and abominable crime against nature, committed with mankind or with beast, with the sexual organs or with the mouth, shall be punished by imprisonment in the penitentiary not less than two years.

The accusation of the indictment charged that

[0]ne JIMMY D. DAYTON . . . did then and there unlawfully, feloniously, either alone or knowingly acting in concert with others, and wickedly and against the order of nature, commit the abdominable and detestable crime against nature by then and there inserting the penis of him, the said JIMMY D. DAYTON into the mouth of G. . . D. . .

In fact, there was no proof that it was the sexual organ of the defendant which was placed into the mouth of the boy. According to the State, the incident occurred in the bathroom when G.D. was separated from his older companion who was then under assault in the bedroom. G.D. could not identify which of the four men accosted him in the bathroom, and D.E. did not know what happened to the other boy during their separation. The evidence of the defendant disclaimed that he was involved in any manner.

The contention is not that Count III of the indictment fails to fairly charge sodomy against the defendant, but that the allegations of that accusation require proof that it was the procreative organ of the defendant which was placed in the mouth of G.D., and without such proof the conviction may not stand. The purpose of an indictment is to enable the accused to make his defense and to enable him to assert double jeopardy in bar of a further prosecution; it is also the pleading by which the court determines whether the facts alleged are sufficient to support a conviction. State v. Moore, 501 S.W.2d 197, 199[3, 4] (Mo.App.1973).

The term sodomy embraces any unnatural corporeal copulation [State v. Oswald, 306 S.W.2d 559, 562[4-6] (Mo.1957)], and on penetration the crime becomes complete. State v. Wilson, 361 Mo. 78, 233 S.W.2d 686, 688[2] (1950). As with other crimes, all persons who knowingly participate in the perpetration of sodomy upon another are equally guilty of the offense. State v. Cain, 507 S.W.2d 437, 440[3] (Mo. App.1974). Sodomy is of a vile and degrading nature, and for that reason, the strict rules of pleading have not been followed in charging the crime. 70 Am.Jur.2d 818, § 17. As long as the act of sodomy charged falls within the statutory definition and the indictment informs the accused of the charge against him, the details of the commission are generally unnecessary. 81 C.J.S. Sodomy § 4. The indictment was a statement sufficient to inform the defendant that he, in concert with others, inserted a male penis into the mouth of G.D. That, also, was the proof. Thus, the defendant was accused as an aider and abettor and is treated in our law as a principal. § 556.170, RSMo 1969. The State need not plead evidence in an indictment, thus the facts by which the defendant aided and abetted the commission of the crime were not essential to the validity of the accusation. State v. Spica, 389 S.W.2d 35, 40[1-4] (Mo.1965). Accordingly, the phrases of him, the said JIMMY D. DAYTON, which appears within the indictment pleading

JIMMY D. DAYTON . . . either alone or in knowingly acting in concert with others, and wickedly and against the order of nature [did] commit the abominable and detestable crime against nature by then and there inserting the penis of him, the said JIMMY D. DAYTON into the mouth of G.D.

stands as mere surplusage to the otherwise sufficient allegation of sodomy against the defendant as a principal who aided and abetted the crime. State v. Lemon, 504 S.W.2d 676, 681[3, 4] (Mo.App.1973).

Although the evidence was responsive to the indictment allegation that the defendant acted in concert to commit the crime, the judgment was corrupted by a submission which did not conform to the facts proved. Instruction No. 8 directed a conviction on Count III if the jury found that the defendant “either alone or knowingly acting in concert with others, inserted his penis into the mouth of G.D.” There was no evidence whose organ consummated the perversion. Instructions in a criminal case must rest on substantial evidence, otherwise the conviction rests on conjecture and must be set aside. State v. Cole, 377 S.W.2d 306, 307[1, 2] (Mo.1964); State v. Lemon, supra, l. c. 681[3, 4].

The judgments on Counts I, II and IV are affirmed; the judgment on Count III is reversed and remanded for new trial.

All concur.

      . Rule 25.32:
      (A) Except as otherwise provided in these Rules as to protective orders, the state shall, upon written request of defendant’s counsel, disclose to defendant’s counsel such part or all of the following material and information within its possession or control designated in said request: (9) Any material or information, within the possession or control of the state, which tends to negate the guilt of the defendant as to the offense charged, mitigate the degree of the offense charged, or reduce the punishment.


source: Caselaw Access Project

author: SHANGLER, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Sam DAYTON, Appellant.
    No. KCD27759.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.
    Motion for Rehearing and/or to Transfer Denied March 29, 1976.
    Application to Transfer Denied May 5, 1976.

      Robert Beaird, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

The defendant Sam Dayton was indicted on four separate counts of felony which charged that, in concert with others, he kidnapped two youths and practiced upon them the abominable and detestable crime against nature. The trial was had upon an information in lieu of indictment which was an accusation of the same offenses. The defendant was convicted on all four counts; the jury assessed punishment of ten years on each count of kidnapping and one hundred and fifty years on each count of the crime against nature. The court ordered that the sentences run concurrently.

The brother and accomplice of the defendant, Jimmy Dayton, was convicted as a principal for the same offenses. Those convictions have been reviewed in an opinion adopted concurrently [Riate of Missouri v. Dayton, Mo.App., 535 S.W.2d 469] where the evidence of the events is related in abundant detail. We will not duplicate that narrative but make interstitial reference when, the discussion of the events and issues require.

The evidence of the State showed that Jerry Dayton and Jimmy Dayton, brothers of the defendant, and Millard Swenson, their uncle, were co-actors in the episodes of abduction and pederasty for which the defendant was convicted.

The defense was both alibi and innocence on the open-court testimony of Jerry Dayton that it was he and three others who had seized the youths and submitted them to torture and molestation.

The victims of these perversions were D.E., a boy of eleven years and his playmate, G.D., who was then seven years old. On the late afternoon of April 12, 1974, the boys had rummaged a trash bin on the parking lot of the Baltimore Bank at 31st and Main when they were accosted by two men in a blue-green automobile. One of the men displayed a badge, and told the boys they were in arrest for the trespass of private property and ordered them into the rear of the car. [The older boy, D.E., identified the defendant as the front seat passenger.] Two other men were picked up and all proceeded to the Travelodge Motel [at 3240 Broadway] and entered room 210. Once there, the boys were directed to disrobe and then to shower, on the pretext that they would be required to do so anyway when they were delivered to the jail. Two of the men also disrobed. D.E. was then taken from the bathroom into the bedroom, but the younger, boy was made to remain in the bathroom. Once in the bedroom, D.E. was made to lie on the bed, and thus prone, was gagged and blindfolded, and tethered by his wrists and ankles to the four corners of the bed. He testified that five separate acts of anal penetration followed, the first four by men of different weights who lay upon him in succession, and the fifth by a hard, irregular object which hurt him. [The latter reference was to the dildo, an artificial priapus of exaggerated size the boy had seen strapped on Jimmy Dayton after the event.] This last penetration caused the boy to scream and induced a defecation and bleeding which covered the bedpad. He was also shocked and hurt by means of an electric cattle prod. At the conclusion of these molestations, the blindfold, gag and ties were removed from the boy.

The boys were once again separated; D.E. was sent to the bathroom to wash, and his younger companion was taken into the bedroom out of his sight.

The younger boy testified that he was forced to take into his mouth the penis of each of two men; then was bound to the bed in the same manner as was D.E., and was subjected to rectal sodomy. He, too, was shocked with the prod.

The boys both testified that the defendant Sam Dayton was present while these assaults of sodomy were committed.

The boys were then taken by automobile to a nearby dairy, warned not to tell of these events, and released.

Once home, the younger boy related what had happened to his mother who called the police. The boys were taken by the authorities to the Childrens Mercy Hospital, where examination of D.E. revealed a rectal tear and sperm in the rectal area. The examination of G.D. by Dr. Gialde found no evidence of sodomy to the younger boy. The report also disclosed that on specific and direct questioning G.D. denied any fellatio or anal penetration.

Following medical examination, D.E. led Officer Meadows and Detective Gowin to Room 210 of the motel. One of the occupants opened the door clad in his undergarments; Gowin identified himself as a police officer and informed the man and other occupants that they were in arrest. The officers then entered the room and found all four, defendant Sam Dayton, his brothers Jimmy and Jerry, and their uncle Millard Swenson.

Once inside, the officers observed and seized some tape lying in a trash can in the bedroom. Officer Gowin entered the bathroom and under the lavatory found a white bedpad, which was also seized. As the four were conducted to the patrol wagon, one of the suspects requested his jacket in the automobile. The officer accompanied the suspect to the car, unlocked the door with the key from the suspect, and removed the jacket. Lying under the jacket was a black case similar to the kind police officers carry. He opened it and found a badge with the inscription: Special Police, Maryland.

Sometime after midnight, a line-up was conducted in which the four suspects were displayed with two other men. A photograph of the lineup was taken. The photograph, police badge and bedpad were all received in evidence.

The bedpad, tape and other paraphernalia taken from the motel room were subjected to laboratory analysis, as well as certain hair samples found on the bedpad. These filaments were compared to cranial hair taken from the defendant Sam Dayton and one of them was found to fall within the range of variance of the sample taken from the defendant.

The defendant, by separate motions before trial, sought the suppression of the line-up identification, of certain evidence, and for a declaration that the boys were incompetent to give testimony. The motions were heard on evidence and were denied.

The defendant gave evidence of alibi by three witnesses [the substance of which is reported in the companion opinion] and from the brother of the defendant [also accused], Jerry Dayton. This brother testified that he and three other acquaintances had actually committed the offenses charged against the defendant. The witness admitted on cross-examination, to an affliction from cancer but denied that his testimony was prompted by a condition in extremis.

The defendant Sam Dayton also gave testimony which denied guilt. He testified that he spent all the time in question at the home of one Geraldine Tyler, a narrative which was supported in varying measure by the alibi witnesses Thomas Raye, Edna Sue Hogan and Geraldine Tyler, herself.

The first assertion on this appeal is that the bedpad [as well as the hair samples detected in that accoutrement] taken from the motel bathroom without authority of formal warrant or incident to a lawful arrest were the fruits of an unreasonable search and seizure in violation of constitutional provisions and should have been suppressed at the trial. The defendant does not contend want of probable cause for his custody or that the arrest itself was not validly executed, but only that the search of the bathroom exceeded the permissible scope of a search incident to arrest defined in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The State contends, rather, that a police officer may inspect areas close by the site of arrest from which a weapon may be obtained and that Officer Gowin was in the course of such a protective sweep when he inadvertently came upon the bedpad in plain view under the lavatory in the motel bathroom.

The Fourth Amendment requires that governmental searches be conducted under the authority of a valid search warrant or under circumstances which show the reasonableness of a warrantless search. Thus, warrantless searches are exceptions, not the rule. One such exception is a search incident to a lawful arrest. This exception rests on the reasonable expectation of a police officer that an arrestee will use any weapon he may have to make escape and that he will attempt to destroy any incriminating evidence in his possession. Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973). In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the United States Supreme Court narrowed the permissible scope of search incident to arrest to include the person of the arrestee and [l.c. 763, 89 S.Ct. l.c. 2040] “the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence”. This essential holding of Chimel [where the search was of the home premises of the accused where he was arrested] has been understood by our Supreme Court to mean that “the arrest of a person at home [does] not justify a routine search”. State v. Wiley, 522 S.W.2d 281, 291[18] (Mo. banc 1975). It is plain then, that in the absence of anything more, the incursion by Officer Gowin into the motel bathroom was not justified as a search incident to the arrest of the defendant.

It is clear, nonetheless, that Chimel concerns the safety of the police officer in the conduct of an arrest. Accordingly, a rule of law has evolved which allows a police officer who makes an arrest in a dwelling place — as a self-protection from immediate danger — to make a cursory sweep for hidden accomplices in adjoining areas. Among the foremost of such federal authorities is United States v. Briddle, 436 F.2d 4 (8th Cir. 1970). There, upon the arrest of Brid-dle at his apartment, several police agents fanned out through the apartment premises to determine whether other persons were present who might prevent the arrest or present a danger to the officers in the apartment. One agent entered a bedroom, saw a shotgun on the floor; no other persons were found. Briddle did not question the right of the officers to make the cursory protective sweep, but contended the search which yielded the unregistered weapon for which he was convicted was illegal. The court affirmed the conviction [l.c. 7]:

The distinguishing and controlling fact, as we view the case before us, is that the shotgun was not discovered as the result of any search whatsoever. Rather, it was discovered by being in plain view in the bedroom which Special Agent Hancock entered in the exercise of his conceded right to conduct a quick and cursory viewing of the apartment area for the presence of other persons who might present a security risk.

Chimel was distinguished [l.c. 8]:

When he [Chimel] arrived home he was arrested under circumstances that did not occasion the officers to conduct a cursory viewing of the house premises concurrently with the arrest as a security measure. Nor is there any indication in Chi-mel that any of the challenged items had been in the plain view of any officer who at the time he saw the item was in a place where he had a right to be as a part of a concededly proper security check of the area where the arrest occurred.

This theory of protective search has been approved by our decisions. In State v. Vineyard, 497 S.W.2d 821 (Mo.App.1973), the police responded to a tip that a possible burglary by several persons was then in progress at a residence. An officer found one suspect after entering the unlocked house and then went into the utility room in search of the other reported suspects, and found the defendant hiding there. While there, the officer noticed a pile of shirts in the garage — visible through an open door. The shirts, part of a burglary loot, were received in evidence. The court rejected the contention that the shirts were seized as the result of an unlawful search and, citing Briddle as authority, responded [l.c. 826]:

As we view this case, the stolen shirts were not discovered as the result of any search whatsoever. The officers upon entering the house were not looking for things but persons. They had received reliable information that several subjects were in the house and had seen two of them in the garage before entering. Therefore, upon encountering only one subject upon immediate entry, the officers had a right to conduct a search of the premises to ascertain the location of the other reported subjects who could present a security risk, interfere with the arrest of Morelock, or escape.

Vineyard was approved by our Supreme Court in State v. Miller, 499 S.W.2d 496, 499[1, 2] (Mo.1973).

The defendant contends, however, that at the time of arrest and entry into the motel room, the police were acting on information from the boys — and were expecting — to apprehend four suspects, and that was in fact what they found. Unlike the search allowed in, Vineyard, where the police had reason to expect danger from others not yet detected, or the search allowed in State v. Henderson, 510 S.W.2d 813 (Mo.App.1974) where the arrestee made a menacing move toward an adjoining bedroom where a pistol was discovered beneath the mattress, the defendant argues that no exceptional circumstances justified even a protective excursion into an area removed from the immediate control of the arrestees.

We cannot agree that the circumstances which confronted the two officers who conducted the arrest of the defendant and his three accomplices were unexceptional. The numerical superiority of the four was in itself a circumstance which allowed reason for one of the officers to glance into the bathroom — the only other source of possible danger from hidden confederates. The rule laid down in Briddle, however, and adopted by our courts in Vineyard and Miller require no demonstration of exceptional circumstances, but accept as a matter of infallible common sense that, as a matter of course, “a quick and cursory viewing of the apartment is permissible to check for other persons who might present a security risk”. United States v. Blake, 484 F.2d 50, 57[7] (8th Cir. 1973). See, also, United States v. Looney, 481 F.2d 31 (5th Cir. 1973); State v. Miller, 126 N.J.Super. 572, 316 A.2d 16 (1973).

This rule which allows a police officer a cursory glance of the premises to insure safety against attack does not countenance an exploration for evidence. It recognizes that such a procedure is not a search in the constitutional sense; it does, however, accord the officer status to seize objects on the premises which fall in his plain view. The right of government to seize and use as evidence “objects falling in the plain view of an officer who has a right to be in the position to have that view” [Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1936)] has long been settled. Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1973) tells us that the plain view exception to the warrant requirement does not conflict with the law of search incident to arrest as expounded in Ghimel:

[Where] the arresting officer inadvertently comes within plain view of a piece of evidence, not concealed, although outside of the area under the immediate control of the arrestee, the officer may seize it, so long as the plain view was obtained in the course of an appropriately limited search of the arrestee.

The plain view doctrine requires not only that the officer have a prior justification for the initial intrusion, but that he came across evidence incriminating the accused inadvertently. Coolidge v. New Hampshire, supra, l.c. 466, 91 S.Ct. 2022. The legality of the presence of Officer Gow-in in the bathroom has been shown as well as the inadvertence of the discovery. The defendant contends, however, that since by the admission of the officer, when he first viewed the bedpad “the defecation and things that were on it was [sic] all pulled over so you couldn’t tell that anything was on it until you opened it”, the incriminating nature of the evidence was not immediately apparent and thus was not in plain view. And, indeed, the stricture which prevents the plain view principle from extending into an exploratory search is that the seizure of an object under the doctrine is legitimate “only where it is immediately apparent to the police that they have evidence before them”. Coolidge v. New Hampshire, supra, l.c. 466, 91 S.Ct. 2038; United States v. Gray, 484 F.2d 352, 356[2] (6th Cir. 1973). Thus, the plain view doctrine operates only to excuse the necessity of a warrant; the precedent requirement of probable cause is not affected. United States v. Truitt, 521 F.2d 1174, 1176[3] (6th Cir. 1975). And probable cause exists where “ ‘the facts and circumstances within the knowledge [of the officers] and of which they had reasonably trustworthy information [are] sufficient within themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed”. Carroll v. United States, 267 U.S. 132, 161, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925). The inquiry, then, is whether the discovery of the evidence under the circumstances would warrant a police officer of reasonable caution to believe that an offense has been or is being committed and that the object in plain view is evidence which incriminates the accused. United States v. Truitt, supra, l.c. 1177; United States v. Sheard, 154 U.S.App.D.C. 9, 473 F.2d 139, 143[2] (1973).

In the circumstances of this case,, there can be no doubt that Officers Meadows and Gowin had probable cause to believe that felonies had been committed. The defendant does not deny cause. The officers came upon a room in disarray and four suspects who fit the descriptions given by D.E. A knife described to them by the boys was found and seized, as were items of tape of the type by which they had been bound. Also, the officers knew that a bed had been used for the sexual assaults and were told by D.E. that the artificial phallus had induced defecation and bleeding on a blanket or bedpad. This information was sufficient to the reasonable conclusion by Officer Gowin that the bedpad open to his view in the bathroom was evidence which incriminated the defendant and those taken with him.

A cognate point raised is that the police badge was seized from the automobile as the result of an unlawful search. The initial entry into the vehicle was at the request and with the consent of the defendant who himself unlocked the door for the retrieval of a garment. These are facts not disputed. When the jacket was lifted, a black leather case was apparent to the view of Officer Gowin. It was of the kind used by policemen. The two boys had told them about the police badge displayed by one of the abductors, so Officer Gowin opened the case and found the badge as the content. The initial intrusion into the vehicle was consensual and justified; on the principles we have already delineated, there was reasonable grounds to believe that the object in the form of a badge case contained the incriminating evidence which its appearance augured.

The defendant next contends that the line-up identification was so suggestive and conducive to irreparable misidentification that the admission of that evidence was denial of due process. The specific circumstances under attack are (1) that of the six persons exhibited at the line-up, four were suspects; (2) one of the non-suspects had facial hair and the other wore white shoes; (3) the line-up was conducted at about 3:00 a. m. when the boys were tired and sleepy; and (4) the police officers had told the boys that the four suspects had been arrested and would appear in the line-up. The brief cites no Missouri authority, but only Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), for the proposition that a line-up can be so suggestive as to deny a defendant due process of law.

The courts have recognized that “even the approved investigative methods, be it confrontation or photographic comparison, may be found improper if ‘so imper-missibly suggestive as to give rise to a very substantial likelihood of irreparable mis-identification’ ”. State v. Parker, 458 S.W.2d 241, 243[1, 2] (Mo.1970), citing Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). This principle was reaffirmed by the United States Supreme Court in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) which delineated considerations for the reliability of an identification [l.c. 198, 93 S.Ct. l.c. 382]:

The central question, [is] whether under the “totality of the circumstances” the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

These factors have been considered by the recent decisions of Missouri courts in the evaluation of the suggestiveness of an identification confrontation. State v. Jordan, 506 S.W.2d 74, 81[11-14] (Mo.App.1974); State v. Hudson, 508 S.W.2d 707, 710[7 — 9] (Mo.App.1974). Nor is it open to question that although the photographic or line-up identification be suggestive or otherwise tainted, where there is an untainted, positive in-court identification made upon a factual independent basis, such in-court identification is proper. State v. Ealey, 515 S.W.2d 778, 780[2, 3] (Mo.App.1974).

The defendant contends the line-up was suggestive because Officer Gowin talked with the boys before the actual display of the six men. There is no doubt that they talked before the line-up. The deposition testimony of V., mother of D.E., acknowledged that the police took her son into another room for about thirty minutes before the line-up. G.D., the younger boy, testified that he knew the four suspects were among those to be shown because both D.E. and the policeman told him so. At the trial, D.E. admitted that he talked with the police before he saw the line-up, but denied that he had been told the four men arrested at the motel would be among them. His deposition testimony, however, had answered that question affirmatively.

It is to be noted that D.E. picked all four suspects out of the line-up. G.D., however, picked only three; the defendant Sam Dayton was not one of those identified at that procedure. At the trial, both boys identified the defendant without resort to the photograph taken at the line-up.

At the hearing on the suppression motion, Officer Gowin explained the identities of those shown in the line-up; he explained that the boys were separated for the identification procedure and that he had not suggested to them that the men who had committed the sodomy would be among those shown. He wavered on cross-examination to the extent that he could have told the boys that “some men that had been arrested would be in the line-up” but did not suggest that the men who had attacked them would be among them. The testimony of D.E. on the pretrial motion was consistent with that given by the officer. He made the identification notations unaided and was not told that those suspected would be wearing any distinctive apparel.

It is not every suggestion that will invalidate a line-up procedure, but only such as tend to the substantial likelihood that a misidentification will result. In State v. Walters, 457 S.W.2d 817 (Mo.1970), an assault victim was taken to the police station where she recognized one photograph as that of her assailant. A month later, she viewed a line-up after she had been told by the police that they had the man she had earlier identified. The court concluded [l.c. 822] that the line-up procedure was not defective because of that suggestion where her in-court identification rested on an independent basis. A line-up itself suggests to a witness called upon to make the view that police investigation has led them to believe that one or more of those exhibited may have committed the crime. That was the conclusion of the court in People v. Williams, 117 Ill.App.2d 34, 254 N.E.2d 81 (1969). A witness to a robbery testified that before he viewed the line-up at which he identified the defendant, a police officer had told him: “One of the men who [you] thought was the robber would be in the line-up”. The court affirmed with the comment [l.c. 86]:

Any time a victim of a crime is asked to come to a police station to look over persons arrested, there is an unavoidable intimation that the police have arrested someone who they believe might be the perpetrator of the crime.

The record is far from conclusive whether, in fact, Officer Gowin made the suggestion attributed to him. If so, the identification by the boys had nevertheless such substantial independent basis [later detailed] as to dispel any taint of misidenti-fication.

The defendant attacks the lineup on the further ground that only two non-suspects were included with the other four. Officer Gowin testified that the two were the only other white males in the jail at the time. The defendant suggests the display should have been deferred when more white males were available. The administration of justice is better served by a prompt display of a suspect to witnesses of a crime because it reduces the time between the event and the confrontation, and thus allows a more reliable recall by the witness. Such a procedure also allows the speedy release of one no longer suspect. State v. Jordan, 506 S.W.2d 74, 81[11-14] (Mo.App.1974). This consideration also justifies the conduct of the line-up in the early morning, after the hour the boys customarily went to bed. There is nothing in the evidence to suggest the boys were not alert at the time of the line-up, but only that their sleep had been interrupted.

Finally, the defendant argues that the two non-suspects were readily distinguished from the four suspects because one of the two was the only one with a moustache, while the other was the only one wearing white tennis shoes. A line-up does not require exact conformity, either of physical characteristics or garb, among the participants. Such differences do not usually, without more, make a line-up unduly suggestive. State v. Word, 527 S.W.2d 708, 710[2, 3] (Mo.App.1975).

The post Stovall test in Missouri to determine whether a lineup is prejudicially unfair depends upon the circumstances considered. In the adjudication of the rule, the Missouri courts have adopted a three-fold test, articulated somewhat differently, but of the same scope and intention as in Neil v. Biggers, supra: (1) The presence of an independent basis of identification, (2) the absence of any suggestive influence by others and (3) the positive courtroom identification. State v. Parker, 458 S.W.2d 241, 244[2] (Mo.1970); State v. Holland, Mo.App., 534 S.W.2d 590 [adopted March 1, 1976]. The presence of a single suggestive element will not violate due process when the evidence overwhelms on the other two. State v. Tidwell, 500 S.W.2d 329, 331[3-5] (Mo.App.1973).

Since only D.E. identified the defendant Sam Dayton at the lineup, that procedure did not suggest the defendant to G.D. The boys both positively identified the defendant at the trial, and certainly there was sufficient independent basis for that identification. The boys were captives of the two men for hours and, except for the time each was gagged, blindfolded and staked, their opportunity to view each of the suspects was unrestricted. These observations allowed sufficient basis for the in-court identification. There was no error in the denial of the motion to suppress that evidence.

The defendant next contends that the term of one hundred and fifty years imposed on each count of the crime against nature, even though made to run concurrently, infringes the constitutional provisions against cruel and unusual punishment. The defendant argues that § 563.230 which defines the crime against nature and provided for a minimum punishment but not a maximum term of years, without criteria for differentiation, creates an inherent unevenness of application, and in this case of a twenty year old defendant, resulted in a sentence disproportionate to the offense, and thus cruel and unusual.

In State v. Stephens, 507 S.W.2d 18 (Mo. banc 1974), a sentence of two hundred years was imposed on a conviction of second degree murder. The defendant contended that such a sentence was cruel and unusual punishment. The court noted that the statute under which the sentence was imposed did not establish a limit to the duration of imprisonment, and thus the 200 year sentence was within the statutory definition. As to the point of primary contention [l.c. 22], the court concluded “ ‘Constitutional provisions against cruel and unusual punishment are aimed primarily at the kind of punishment imposed, not its duration.’ ” We are bound by that authority. The point is denied.

The next contention is that G.D. was incompetent as a witness because he did not evince a memory sufficient to retain an independent recollection of the observations made at the time of the criminal events alleged. The defendant bases the contention on § 491.060, RSMo 1969 which provides that a child under the age of ten years of age shall be incompetent to testify if he “appears incapable of receiving just impressions of facts respecting which [he is] examined, or of relating them truly”. The effect of the statute renders a child of such years presumptively incompetent as a witness and easts the burden to prove capacity upon the party who offers the testimony. State v. Anderson, 252 Mo. 83, 158 S.W. 817, 821[8] (1913); and Hildreth v. Key, 341 S.W.2d 601, 609[19] (Mo.App.1960). This statutory standard has been construed to require the proof of four components for competency. Burnam v. Chicago Great Western R. Co., 340 Mo. 25,100 S.W.2d 858 (1936), [l.c. 862]:

(1) Present understanding or intelligence to understand, on instruction, an obligation to speak the truth; (2) mental capacity at the time of the occurrence in question truly to observe and to register such occurrence; (3) memory sufficient to retain an independent recollection of the observations made; and (4) capacity truly to translate into words the memory of such observation.

The trial judge conducted an evi-dentiary hearing on the competency of G.D. to give his testimony and ruled in favor of his capacity to testify. The defendant contends evidence by the State did not rebut the presumption of the incompetency of the witness, but rather that the voir dire examination established that G.D. did not display a memory which had sufficiently retained an independent recollection of the observations he made. In the determination of this issue, the rule is clear that it is given to the trial judge to determine the competency of an infant offered as a witness, and his decision is not open to review unless a clear abuse of judicial discretion appears. State v. Starks, 472 S.W.2d 407, 408 (Mo.1971).

The defendant points to inadequacies and conflicts in the voir dire testimony on his competency: G.D. responded to questions by the State that he recalled most of what happened to him; that two men picked him up in the car and that then there were four men in the car; he did not recall where they took him, but remembered that he was examined by a physician later that night at Mercy Hospital and that he viewed a lineup at the police station. On cross-examination he answered he did not remember what the men looked like, nor the color of the car; that he remembered what had happened to him that night, but that it was not always so, that he remembered again “when I saw the men again” — and that no one had aided his renewed recollection. On the other hand, the defendant read as trial evidence, the deposition testimony of G.D. which included:

Q. Did the policeman tell you if you said certain things, your story would be better?
A. Yeah.
Q. What did he tell you? Did the policeman tell you to say that these men had stuck something in you?
A. Yeah.

The witness did not recall these deposition questions.

The purpose of the statute is to protect an accused from the testimony of a child of tender years who may lack the capacity to truthfully and accurately relate an event previously observed. State v. Parton, 487 S.W.2d 523, 525[1-4] (Mo.1972). The determination of testimonial competen cy of a child rests on the whole of his testimony [State v. Obie, 501 S.W.2d 513, 515[5, 6] (Mo.App.1973)], and his voir dire need not be altogether consistent before he will qualify to testify at the trial. In State v. Price, 513 S.W.2d 392 (Mo.1974), an eleven year old who witnessed a murder was competent to testify although her voir dire responses evinced a lack of recollection as to her deposition testimony, where her trial testimony demonstrated an independent recollection of the events about which she was to testify.

Hildreth v. Key, 341 S.W.2d 601 (Mo.App.1960) contains a compendium of decisions on the subject and concludes the significant fact [l.c. 611]:

[T]hat in most of the Missouri cases in which the testimony of a child witness has been received, such testimony has pertained either to a crime (usually a sex offense) committed upon the person of the child witness or to an accident in which the child witness has been injured, and thus “about a subject that would naturally leave an impression of a much more lasting character than if it were something that he merely saw or observed”.

This logic was followed in State v. Parton, 487 S.W.2d 523, 525[1-4] (Mo.1972) where the court found a six year old rape victim competent to give her testimony.

It must be conceded that the testimony of G.D. often listed according to the bias of the question. His evidence of the abduction and oral molestations, however, was not ambiguous. His recollection that his captors forced him to disrobe, bathe, then staked him to the bed and abused him, was clear. These were the impressions of a young boy who was subjected for hours to vile and humiliating abuse against his person. However, his total testimony may have been contradicted on cross-examination, the substance of his evidence was corroborated in almost every particular by other prosecution evidence and by that given by Jerry Dayton for the defendant. The record supports the judgment of the trial court that the testimony of the child witness was on an independent recollection of the observations made at the time of the events.

We sustain the contention of the defendant that the conviction under Count III was on a submission without support in the evidence, and reverse and remand for the retrial of that issue. We accept review under Rule 27.20(c) because a conviction which does not rest on substantial evidence denies a defendant fundamental fairness and is a manifest injustice. State v. McClunie, 438 S.W.2d 267, 268[1, 2] (Mo.1969); Thompson v. City of Louisville, 362 U.S. 199, 206[1, 11], 80 S.Ct. 624, 4 L.Ed.2d 654 (1960).

Count III of the information in lieu of indictment charged that

SAM DAYTON ... did then and there unlawfully, wilfully, either alone or knowingly acting in concert with others and wickedly and against the order of nature, commit the abominable and detestable crime against nature by then and there inserting the penis of him, the said SAM DAYTON into the mouth of G.. . D...

In fact, there was no proof that it was the sexual organ of the defendant which was placed into the mouth of the boy. As we noted in the companion opinion, the evidence of G.D. was that when he was in the bathroom separated from D.E., one of the men came in and told G.D. to take his penis into his mouth, which G.D. did. This act was repeated upon the direction of another man. The boy could not give the identity of either man. D.E. did not know what happened to the other boy during their separation, and the defendant disclaimed any involvement at all.

Instruction No. 6 directed a conviction on Count III if the jury found beyond a reasonable doubt that “the defendant, either alone or knowingly acting in concert with others, inserted his penis into the mouth of G.. . D. . . ”. There was no evidence whose organ consummated the perversion. Instructions in a criminal case must rest on substantial evidence, otherwise the conviction rests on conjection and must be set aside. State v. Cole, 377 S.W.2d 306, 307[1, 2] (Mo.1964); State v. Lemon, 504 S.W.2d 676, 681[3, 4] (Mo.App.1973); Thompson v. City of Louisville, 362 U.S. 199[1], 80 S.Ct. 624, 4 L.Ed.2d 654 (1960).

It is the contention of the State that the defendant was properly found guilty on Count III as an accomplice, since there was substantial evidence that he aided and abetted the conduct charged and the jury was properly directed by Instruction No. 12:

All persons are guilty who knowingly act together with the common purpose of committing an offense, or who knowingly and intelligently aid or encourage another in committing it, and whatever one does in furtherance of the offense is the act of each of them.

There is no doubt that there was sufficient evidence for conviction upon proper instruction that the defendant aided and abetted the oral sodomy practiced upon G.D. When Instructions Nos. 6 and 12 are read together, as they must be, they can only mean that the defendant by himself or with the help of others inserted his penis into the mouth of the boy. The finding of either alternative rests on evidence that the phallus of the defendant himself was the means by which the offense was committed. There was no such proof and confusion resulted. The jury interrupted deliberations to express their quandary by this written inquiry to the court:

Confused: Instruction No. 6 — under Count No. 3, is he guilty only if he actually inserted in boy’s mouth — or does the act of merely being present possibly make guilty like in Instruction No. 12?

The court responded that the instructions were to be read all together, and returned the jury to their deliberations.

Counts I, II and IV are affirmed; Count III is reversed and remanded for a new trial.

All concur.

      . The cross-examination testimony of Jerry Dayton included the lapsus linguae, later abjured by the witness, that his uncle Millard Swenson was one of the men who had disrobed in preparation to their sexual assaults upon the boys.

      . MAI-CR construes statutes [such as crime against nature § 563.230] which impose a minimum term of years but no limit to the term of imprisonment to provide for a maximum punishment of life imprisonment. [See: the dissent of Finch, J., joined by Seiler and Bardgett, JJ. in State v. Stephens, infra]. Accordingly, Counts III and IV properly submitted [in the terms of CR 12.50]:
      If you do find the defendant guilty . of the abominable and detestable crime against nature you will fix his punishment by imprisonment . . . for a term fixed by you of not less than two years nor more than life imprisonment.
      The defendant does not here contend that the term of 150 years imposed on each count was not responsive to each such submission as in excess of a life term.


author: RENDLEN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Nathaniel WADE, Defendant-Appellant.
    No. 36152.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 2, 1976.
    Motion for Rehearing or Transfer Denied April 13, 1976.

      Charles D. Kitchin, Public Defender, Richard A. Knutson, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Richard A. Heidenry, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   RENDLEN, Judge.

Defendant, Nathaniel Wade, found guilty of burglary second degree, § 560.070 RSMo. 1969, V.A.M.S., and sentenced to ten years imprisonment by the court under the Second Offender Act, § 556.280 RSMo.1969, V.A.M.S., appeals that conviction. Appellant’s questioning of the sufficiency of the State’s case requires a detailed recital of the evidence.

On Sunday, August 12, 1973, Richard Klaus, an off-duty policeman working with an assigned partner as security guard inside the Transport Motor Express Building on North Seventeenth Street in St. Louis, was attracted by a “crashing” sound at the west side of the building. Going there he observed someone breaking splinters to enlarge a fresh hole in the panel of an exteri- or door. Not able to see who was at the door, he waited and watched. When this activity ceased, Klaus went to the north end of the building and told his partner what was happening, asked him to stand by in case help was needed, returned to the broken door and waited. Presently appellant crawled head first through the hole in the door panel, stood up and proceeded about 15 feet into the building. Klaus stepped around a corner where he had been waiting, identified himself as a security officer, told appellant to halt, and as he did so, brought up the shotgun he was holding in his right hand. Appellant turned, saw Klaus and said: “Don’t shoot, I’m just in here to hand things out through the panel.” Searching appellant for weapons and finding none, Klaus handcuffed him to a nearby doorknob. As he was doing this, Klaus heard whispering outside the broken door and what sounded like footsteps. He phoned the police and walked around the building in search of other suspects. Several officers arrived in response to Klaus’ call, advised appellant of his “rights” and took him to the district station for booking.

Appellant, testifying in his own defense, told quite another story. He claimed he was standing near the south side of the Transport Motor Express Building waiting for his car to be repaired at a shop across the street. He further testified Klaus came from the Transport building, approached appellant, pointed a shotgun at him, and asked him why he was there. The guard then forced appellant to accompany him into the building where he handcuffed and searched him, then took his wallet, $112, pocketknife and keys. These matters were categorically denied by Klaus.

After being advised of his rights at the station by officer Thurmon Moore, appellant stated that security guard Klaus had taken $150 from him. At that time officer Moore asked appellant if he had broken into the building and in response appellant said he had a narcotic habit. Testimony concerning this matter was as follows:

“Q. [Circuit Attorney] I want you to tell me what you asked him exactly, and what his response was?
A. [Witness Moore] I asked him if he broke into the place and I said, ‘You know, the security guard said he caught you inside. Did you break out the panel?’ And he said, T have to support my habit in some way.’
Q. What did you do then? Did you say anything to him in response to that?
A. I looked at him and said, ‘It don’t look to me you have a habit.’ And he showed me his arms.
Q. He showed you the underside of his arms?
A. Yes, sir. He did.
Q. What did you observe there?
A. Marks down the veins of each arm.”

As corroboration of his assertion that Klaus had taken $112 from him, appellant offered the arrest register to show appellant had no money or wallet when he was booked.

By his first two contentions of error, appellant asserts the evidence is insufficient to support the verdict, claiming the identity and guilt of defendant were not established and that defendant’s alibi was confirmed by the evidence. By these contentions, appellant ignores the fact the jury chose not to believe him and instead was persuaded by the contrary evidence. The State’s evidence established the necessary elements of the offense. In addition to abundant direct evidence as to the manner of entry and presence of appellant in the burglarized building, appellant’s incriminating statement that he was in the building to hand things out through the door (admitted into evidence without objection) was sufficient to establish intent. Though the actual removal did not occur, it is unnecessary to show a completed act of stealing if a breaking and entering with accompanying intent appears. State v. Smith, 357 S.W.2d 120, 123[5] (Mo.1962). The intent to steal was further shown by the testimony of officer Moore who asked appellant if he had broken into the building and in response was told that appellant had a [drug] habit to support, showing the officer marks down the veins of each arm. From this the jury could find appellant was telling Moore why he had broken in and could reasonably infer the breaking and entering with intent to steal had indeed occurred. Where sufficiency of evidence is challenged, we review to determine if there is sufficient substantial evidence to support the jury’s verdict and we consider as true all evidence favorable to the State including reasonable inferences that may be drawn therefrom. State v. Cain, 507 S.W.2d 437, 438[1] (Mo.App.1974).

Appellant urges his claim of alibi should have been believed; however, the jury is entitled to believe or disbelieve the testimony of a witness and consider the testimony of one witness as it relates to all the circumstances and facts in the ease. It is the responsibility of the trier of fact to weigh and determine the credibility of the witnesses as presented and all other evidence in the case. State v. Wynn, 391 S.W.2d 245, 247[1] (Mo.1965). From the record we find sufficient substantial evidence to sustain the jury’s verdict and judgment.

Appellant next contends the court erred in overruling his oral motion to suppress his admission made in the presence of security guard Klaus at the time of apprehension, i. e., “Don’t shoot, I’m just in here to hand things out through the panel.” This untimely oral motion made on the morning of trial was overruled by the court and the point was not preserved for review as appellant failed to object when the statement or admission was offered at trial. State v. Stavricos, 506 S.W.2d 51, 57[10] (Mo.App.1974); State v. Simone, 416 S.W.2d 96, 100[11] (Mo.1967). Examining for plain error, we find none as the mere fact a weapon was pointed at appellant when he was told to halt, absent any interrogation or demand that he speak up, did not render appellant’s spontaneous statement, involuntary. As the court said in State v. Hart, 292 Mo. 74, 237 S.W. 473, 479[9] (1922): “The weapon was not leveled at the defendant to induce him to confess, but to compel surrender. ... He was bound to know that as soon as he yielded and was safely in custody no danger of violence remained.” The security officer acted only with proper caution in apprehending a suspect in the apparent act of committing burglary who might have been armed. He could not, nor was he required to prevent the appellant from speaking until he could be informed of his Miranda rights. Neither time nor circumstances permitted giving the Miranda warnings and it is absurd to suggest the facts here required such warnings at the moment of arrest and before appellant could blurt his statement. Here, as in State v. Hart, supra, the gun was leveled at appellant to apprehend, not to coerce confessions. The statement was voluntary and thus was not constitutionally barred from use at trial. See Boyer v. State, 527 S.W.2d 432 (Mo.App.1975).

Appellant contends the court erred in denying his request for continuance to permit calling officer Klaus for testimony in connection with the untimely motion to suppress. This contention is without merit. It appears appellant was less than diligent in securing Klaus’ presence at the pre-trial motion. Further appellant failed to show how the testimony of Klaus would have proved the statements of defendant inadmissible and the oral request for continuance and to delay the trial for 24 hours, failed to conform to requirements of Rule 25.08, V.A.M.R.

Officer Klaus was the first witness for the State in the presentation of its case in chief. Appellant had a full and fair opportunity to cross-examine at that time and Klaus’ testimony was diametrically opposed to that of appellant at the hearing on the motion to suppress. In light of these circumstances we cannot see how defendant was prejudiced by the court’s actions.

In reviewing appellant’s various requests for continuance, we note that: “The trial court has great discretion in granting or denying a continuance, and ‘it requires a very strong showing to induce a higher court to interfere, and it will disturb the action of the trial court only where a clear abuse of discretion is shown.’ ” State v. Thomas, 433 S.W.2d 537, 539[1] (Mo.1968); State v. Amerison, 399 S.W.2d 53, 55[5] (Mo.1966); State v. Cuckovich, 485 S.W.2d 16, 22[8] (Mo. banc 1972). Finding no abuse of discretion in denying the oral application for continuance, the point is ruled against appellant.

On the morning of the trial’s commencement, appellant made an additional oral motion for continuance to permit time to employ counsel of his own choice in lieu of the assigned public defender. He stated he had hired an attorney who failed to appear and his family was then in the process of mortgaging their home to employ other counsel. The court, denying the motion, noted that appellant had had seven months since his arrest to procure private counsel. Under the court’s questioning, appellant admitted he had no complaint concerning service of the public defender and though his family was attempting to raise money for a private attorney, appellant could not say when they might be ready. Appellant’s assertion is correct that he is entitled to a fair chance to prepare his defense, State v. Stucker, 352 Mo. 1056, 180 S.W.2d 719, 720[3] (Mo.1944); however, he has failed to show how the court’s denial of his request for a continuance has prejudiced him in this regard. The right to counsel does not mean the accused is entitled to any particular attorney, State v. Williams, 419 S.W.2d 49, 54[8] (Mo.1967); and “the accused’s right to private counsel is limited by the state’s right to proceed to trial after the accused has been afforded a fair opportunity to engage his own counsel and adequate time to prepare his defense, and does not include the right to defeat or impede the orderly processes of the administration of justice.” State v. Crider, 451 S.W.2d 825, 828[4] (Mo.1970). In view of the ample time appellant had to procure a private attorney and the fact that the public defender was ready to proceed, we find no abuse of discretion in denying a motion for continuance made on the day of trial. See State v. Jefferies, 504 S.W.2d 6 (Mo.1974).

Immediately after the noon recess on the second day of trial, the defense again moved for continuance, this time asking an opportunity to locate and produce one Tyree McIntyre as a witness. Defense counsel explained that at 9:30 that morning appellant had given him the name of Herbert McIntyre as a possible witness. During the noon recess, defense counsel had talked to Herbert McIntyre, then an inmate of the city jail, who in corroboration of defendant’s testimony stated that he and his brother Tyree had witnessed the arrest of appellant on August 12,1973. Counsel indicated he chose not to call Herbert since he had an extensive criminal record but wished to locate and call his brother Tyree, requesting a continuance until after four that afternoon. Counsel had a telephone number and address of Tyree McIntyre but the prospective witness could not be reached until after 4 p. m.

The oral motion for continuance, understandably denied, did not meet the requirements of Rule 25.08, V.A.M.R., requiring movant to show “where the evidence may be and that due diligence has been used to obtain it.” Further defense counsel by the oral motion for continuance did not show a subpoena had been issued for either Herbert or Tyree McIntyre. See State v. Johnson, 461 S.W.2d 724, 726[3] (Mo.1971); and this motion failed to show Tyree McIntyre’s residence or whereabouts and the probability of procuring his testimony and within what time that testimony might be obtained. As noted above, defense counsel admitted he was able to present by Herbert the same matters to which Tyree McIntyre might testify and Herbert was available but less desirable as a witness. Appellant by so doing sought to avoid the requirement of the Rule that “he is unable to prove such facts by any other witness whose testimony can be as readily procured.” Also, no assurances were given the court that the grant of continuance would result in the presence of Tyree McIntyre at trial, Rule 25.08 and State v. Nunley, 482 S.W.2d 503, 504 (Mo.1972); and nothing indicates defense counsel made an effort to obtain a subpoena for Herbert or Tyree McIntyre at any earlier time. However, the principal share of fault in this situation seems to lie with appellant, who was a difficult client to represent and had not discussed the case with defense counsel for approximately two months prior to trial. Finally, it is important that Tyree or Herbert McIntyre’s testimony would be cumulative in nature and it is not probable a different result would obtain had the prospective witness testified. State v. Scott, 338 S.W.2d 873 (Mo.1960); State v. Reece, 505 S.W.2d 50 (Mo.1974). We find there was no abuse of discretion in the court’s refusal to grant appellant’s unsworn motion for continuance.

After appellant testified and before the State’s rebuttal evidence, appellant moved orally for continuance to procure the presence and testimony of an absent witness, one Sergeant Gregory Sullivan. The evidence shows that immediately prior to the motion for continuance a subpoena duc-es tecum had been served by a member of the public defender’s staff upon Sergeant Sullivan. The subpoena directed Sullivan to bring the arrest records of appellant to corroborate his statements he had no money in his possession when booked. The court properly refused the application as it patently failed to meet the requirements of Rule 25.08 and there was no showing of prejudice by the court’s ruling since Sergeant Sullivan testified shortly thereafter and the desired testimony was elicited.

Appellant next alleges error in the giving of an instruction based on MAI-CR 2.10. At trial, a general objection only was made to the instructions and the sole allegation of error in the motion for new trial was: “The court erred in failing to properly and adequately instruct the jury as to all questions of law applicable to the case.” This fails to raise the issue with sufficient particularity as required by Rules 27.20(a) and 20.03, V.A.M.R. Where a specific objection is not made to an instruction at trial or in the motion for new trial, the point is not preserved for review. State v. Mitchell, 500 S.W.2d 320, 323[7] (Mo.App.1973); State v. Gray, 525 S.W.2d 367, 370[6] (Mo.App.1975).

Appellant next contends that the trial court erred in refusing his offered instruction # A (MAI-CR 3.54) directing the jury to consider prior statements made by defendant in determining the truthfulness of his testimony at trial. We hold against appellant on this contention as none of his prior statements are truly “consistent” with his testimony at trial, an indispensible prerequisite for giving the instruction. MAI-CR 3.54, Notes on Use. Appellant’s brief directs our attention to the testimony of officer Moore stating: “Officer Moore testified that defendant had told him that Richard Klaus had forced him inside the building and had taken his money.” An examination of the record indicates that this statement is only partially accurate; the relevant portion of Moore’s testimony is as follows:

“Q. [By Prosecutor Heidenry] Did he [Wade] make a statement to you, after you advised him of his rights?
A. He referred to security guard Klaus, and said he had taken $150.00 from him.
Q. Did he say $150.00?
A. Yes, he did.
Q. You remember that clearly, at that time?
A. Yes, sir.
Q. Did he make any other statement, at any time you had him in custody, after you advised him of his rights?
A. After I advised him of his rights, he said all he wanted was the $150.00 that the security guard had taken from him. Q. Did you ask him anything?
A. I remember asking him if he had broken into the store there, and he referred to the habit he had, a narcotic habit.
Q. I want you to tell me what you asked him exactly, and what his response was? A. I asked him if he broke into the place and I said, ‘You know, the security guard said he caught you inside. Did you break out the panel?’ And he said, T have to support my habit in some way.’
* * * * * *
Q. [By Defense Attorney Knutson] Do you recall any statement by Mr. Wade that he was arrested by security guard Klaus in front of the Transport Company?
A. Not to me he didn’t.
Q. Did you hear him make such a statement?
A. No, I did not.
Q. Did you hear him at any point?
A. I heard other people mentioning it, but nothing was said to me about it.”

At no point did Moore testify appellant told him he had been forced into the building; in fact, appellant’s reply concerning his drug habit seems to impel the opposite conclusion. Further, while Moore testified appellant complained Klaus had taken money from him, appellant’s statement contradicts his subsequent testimony as to the amount of money and other items taken.

Appellant next complains that a statement made by the prosecutor in closing argument attributed to appellant a crime for which he was not charged (i. e., first degree burglary) and charges error in the court’s refusal of an instruction to disregard or for mistrial. The prosecutor’s offending statement follows:

“MR. HEIDENRY (continuing) Ladies and gentlemen: If on this evidence, you find this man not guilty, the next time you read something in the paper, don’t scoff. These burglars break into homes or apartments where women are home alone, the likes of him — ”

We believe the remedial action called for by appellant was properly refused. “The prosecution attorney is generally permitted considerable latitude in arguing the necessity of law enforcement and the responsibility resting on trial juries.” State v. King, 334 S.W.2d 34, 40[10] (Mo.1960); State v. Pruitt, 479 S.W.2d 785, 790[9] (Mo. banc 1972). Unlike the attorney in State v. Heinrich, 492 S.W.2d 109 (Mo.App.1973), the prosecutor here did not characterize appellant himself as a threat to the jurors and their families; he referred to burglars plu-rally, contending that the threat came from “the likes of” appellant. This type of argument does not unfairly personalize appellant in the eyes of the jury and has long been permitted by Missouri courts, State v. Heinrich, supra at 114[9]; State v. Crawford, 478 S.W.2d 314, 320[14] (Mo.1972) app. dis. 409 U.S. 811, 93 S.Ct. 176, 34 L.Ed.2d 66 (1972); State v. McKinney, 475 S.W.2d 51, 55[5] (Mo.1971), and does not suggest appellant was charged or on trial for first degree burglary.

Appellant’s final point, numbered eleven charging bias of the trial court, was not raised in appellant’s motion for new trial and thus not properly before us on this appeal. See Rule 27.20(a) and State v. Henderson, 510 S.W.2d 813 (Mo.App.1974). We have reviewed the point for plain error under Rule 27.20(c), V.A.M.R., and find none.

The judgment is affirmed.

WEIER, P. J., and DOWD, J., concur.

      . The building occupies one-half of a city block, the west side facing an alley.

      . Immediately before trial appellant, in connection with his oral motion to suppress, also orally moved for a continuance.