author: DIXON, Judge.

text:
    Melvin Lee CRAWFORD, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. KCD 27935.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.
    Motion for Rehearing and/or Transfer Denied Aug. 5, 1977.
    Application to Transfer Denied Sept. 12, 1977.

      Richard J. Yocum, Asst. Public Defender, Fifth Judicial Circuit of Missouri, St. Joseph, for movant-appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   DIXON, Judge.

On March 18, 1975, the court below denied the movant’s pro se Rule 27.26 motion to vacate his sentence without evidentiary hearing or appointment of counsel. The movant appeals. The judgment is final. This court has the proper appellate jurisdiction. The judgment is affirmed.

The movant contends the trial court erred: in considering prior convictions after jury agreed on guilt and not on punishment when defendant was not charged under Second Offender Act; in assessing punishment after ruling motion for new trial because it denied defendant opportunity to object; in sentencing defendant when not charged under Second Offender Act; with an abuse of discretion in failing to appoint counsel.

The claims of error are considerably condensed from appointed counsel’s brief which in turn has made a valiant, albeit only partially successful, attempt to state recognizable points on the basis of the pro se motion as filed.

The procedural history of the movant’s direct criminal appeal and this proceeding are somewhat complex and should be set forth in the interest of clarity.

On April 4,1973, a jury found the movant guilty of first degree robbery by means of a dangerous and deadly weapon. The jury was unable to assess punishment. The court overruled the movant’s motion for a new trial. Thereafter, the court sentenced the movant to thirty years’ imprisonment. At that time, the movant made no objection to the court’s assessment of punishment after he had already filed his motion for new trial. During the trial the movant was represented by court-appointed counsel.

On June 5,1973, the movant filed a notice of appeal from the May 25, 1973 judgment and sentence. He was represented on the direct appeal by counsel of his own choice.

On April 11, 1974, the movant filed this Rule 27.26 motion to vacate the May 25, 1973 judgment and sentence. The movant filed the Rule 27.26 motion pro se. In the motion, he asked that the court appoint counsel for him. The court did not appoint counsel for the movant on the 27.26 motion.

The movant’s direct appeal was dismissed on October 10, 1974, by this court because the appellant had failed to properly prosecute the appeal.

On March 18, 1975, the court denied the movant’s Rule 27.26 motion to vacate his sentence without holding an evidentiary hearing. On March 20, 1975, after the court had already denied the movant’s Rule 27.26 motion, the movant attempted to amend the motion, but the trial court took no action on the amendment.

On October 30,1975, this court reinstated the movant’s direct appeal from the conviction and judgment of May 25, 1973. The court appointed counsel to represent the movant on the reinstated direct appeal, the same counsel had been appointed to represent movant on his appeal of the denial of his motion.

On November 5, 1975, the movant was allowed to file an out of time notice of appeal from the denial by the court below of his Rule 27.26 motion.

On November 14,1975, this court ordered that the movant’s Rule 27.26 appeal be held in abeyance until the court decided the movant’s direct appeal which had been reinstated on October 30, 1975.

This court decided the direct appeal on July 6, 1976, affirming the judgment, conviction and sentence of the trial court. State v. Crawford, 539 S.W.2d 633 (Mo.App.1976).

On October 20, 1976, this court reactivated the movant’s Rule 27.26 appeal because the judgment on the movant’s direct appeal had become final.

As best it may be gleaned from the pro se motion and appointed counsel’s brief, the first point attacks the trial court’s consideration of prior convictions not charged in the information. The argument is that the statute (Section 556.280(2)) requires that the trial court hear evidence of prior convictions prior to submission to the jury; not having done so in this case, they could not be considered in assessing defendant’s punishment. The pro se motion concludes that since the statute was not followed, the movant was denied due process. The point may be resolved on any one of three grounds. First, the point is precluded from review under Rule 27.26 because it is a matter of trial error. Trial errors are for direct appeal and not within the purview of a motion to vacate a judgment and sentence. Brown v. State, 512 S.W.2d 404 (Mo.App.1974); Coney v. State, 491 S.W.2d 501 (Mo.1973).

Second, movant’s conclusory contention that his constitutional rights were impaired does not bootstrap the contention to reviewable status. It is true that a trial error which affects a constitutional right may be raised in a 27.26 proceeding even though the point was not raised on direct appeal. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). State v. Brownridge, 506 S.W.2d 466 (Mo.App.1974). However, one may not obtain a post-conviction review of a trial error by making the conclusory allegation that the trial error violated the movant’s constitutional rights. O’Neal v. State, 486 S.W.2d 206, 208 (Mo.1972); Agee v. State, 512 S.W.2d 401, 402 (Mo.App.1974); Mayo v. State, 524 S.W.2d 181, 182 (Mo.App.1975); Booth v. State, 491 S.W.2d 286, 288 (Mo.1973).

Third, when a defendant is not charged under the Second Offender Act, it is not improper for a trial judge to consider the prior criminal record of a defendant in assessing punishment against that defendant after the defendant has been found guilty by a jury which is unable to assess punishment. In State v. Goforth, 535 S.W.2d 464, 468 (Mo.App.1976), the jury was unable to assess punishment after finding the defendant guilty of second degree murder. The court then discharged the jury and sentenced the defendant to thirty years’ imprisonment. The court ruled that the trial court properly considered the prior criminal record of the defendant in assessing punishment. The court said:

“When the jury was unable to agree upon the punishment that duty devolved upon the court. Rule 27.03. In such circumstances the court should take into consideration not only the nature and circumstances of the offense but also the character and propensities of the offender as well as his past. . . . Among the matters in one’s past which the court should consider is the existence of a prior criminal record.”

The court may properly consider the prior criminal record of the defendant in assessing punishment if the defendant is not charged under the Second Offender Act and the court is required to impose punishment (a) when the defendant pleads guilty, State v. Armstrong, 433 S.W.2d 270, 272 (Mo.1968); (b) when the jury finds the defendant guilty but is unable to assess punishment, State v. Oldham, 546 S.W.2d 766 (Mo.App.1977); (c) when the defendant is convicted by the court. State v. Jackson, 476 S.W.2d 540 (Mo.1972).

The defendant’s second contention is that he was denied due process of law and equal protection of law because the trial court erred in not imposing the sentence until after the court had overruled the movant’s motion for new trial; therefore, the movant was precluded from objecting to the severity of the sentence and denied the opportunity for appellate review of the sentencing. The record shows that the court granted the proper allocution to the movant. In State v. Goforth, supra, the defendant contended on direct appeal that the trial court denied him due process of law because it sentenced him on the basis of undisclosed information. The court ruled that the point was not preserved for review because the defendant never made specific, objection to the trial court regarding the point. The court said:

“Granting allocution affords the defendant an opportunity to raise any infirmities in the sentencing procedure.
“[The] defendant was given the opportunity to raise the issue which he now attempts to raise but did not do so at the first opportune moment.”

In the instant case, the movant had the opportunity during allocution, after the court had overruled his motion for new trial, to object to any irregularities or errors by the court in imposing the sentence which it imposed. Objections during allocution to the sentencing procedure by the court or the sentence imposed by the court preserves those alleged errors for appellate review. Therefore, the court did not deny the movant due process or equal protection of law by sentencing the defendant after the court had overruled the movant’s motion for new trial.

Movant’s third point is that the trial court’s giving of an instruction permitting a finding of guilt without fixing of the punishment by the jury in accordance with State v. Brown, 443 S.W.2d 805, 810 (Mo. banc 1969), constituted a denial of due process. The argument is that this permits the fixing of punishment on the basis of the facts of prior convictions not pleaded nor proven and violates the statute requiring the jury to fix punishment. State v. Brown, supra, specifically approves the procedure adopted by the court in the instant case. MAI-Cr 4.50 codifies the rule of Brown. The assessment of punishment by the court after a jury had found found the defendant guilty but was unable to agree upon punishment was also specifically approved in State v. Jenkins, 510 S.W.2d 491, 493 (Mo.App.1974) and State v. Hampton, 317 S.W.2d 348 (Mo.1958). It is proper for the trial court to assess punishment in cases where the Second Offender Act is not charged and the jury is unable to agree upon punishment after having found the defendant guilty. The movant’s contention that the assessment of punishment by the trial court in the instant case denied him due process of law is without merit. Because the movant’s contention that his constitutional rights were affected by the trial court’s assessment of punishment is only conclusory, the point is an allegation of trial error which is not properly reviewable under Rule 27.26 as noted above.

The movant’s final contention is that the trial court abused its discretion in failing to appoint counsel to assist the movant with his Rule 27.26 motion. The movant contends that counsel would have enabled him to better frame his points in the motion and that because of the lack of counsel the movant must now bear the burden of showing that any ground which he did not include in his original motion which he may now wish to assert on appeal could not have been included in the original motion.

First, the movant has not suffered the prejudice of having to prove that a ground which he now wishes to assert could not have been raised originally in the motion because he has not attempted to assert on this appeal any grounds for relief which were not originally included in the motion.

Further, the trial court did not abuse its discretion in not appointing counsel because, as indicated above, the movant’s other points are merely allegations of trial error which are not properly cognizable under Rule 27.26. Under Rule 27.26, the movant does not have an absolute right to counsel. Rule 27.26(h) provides in pertinent part:

“If a motion presents questions of law or issues of fact, the court shall appoint counsel immediately to assist the prisoner if he is an indigent person. . . .”

Although the movant is an indigent person, the trial court did not abuse its discretion in failing to appoint counsel because the mov-ant’s points do not present questions of law or issues of fact properly cognizable under Rule 27.26. In Duisen v. State, 504 S.W.2d 3, 5 (Mo.1974), the movant urged on appeal that the denial of his Rule 27.26 motion to vacate his sentence be reversed because the trial court erred in failing to appoint counsel for the movant on his Rule 27.26 motion. In ruling the point against the movant, the court said:

“Therefore, when the files and records of a case show as a matter of law that a petitioner is not entitled to relief on the basis of the contentions alleged in his motion, either because they have been adjudicated previously or were known and could have been raised in a prior motion to vacate, or because they are merely trial errors not of a constitutional dimension, the trial court is not called upon to appoint counsel under subsection (h) of the rule.”

Counsel argues that the appointment of counsel would permit more orderly and intelligent presentation of issues in proceedings such as this and, therefore, urges reconsideration of the cases cited. This court does not have that authority, although, clearly, the time of this court and of the trial courts would be conserved if pro se motions such as this were reformulated by counsel. Also, as counsel suggests, the duty to present an adversary brief on a movant’s allegation which does not state colorable claim is difficult. The writing of an opinion is no easier. So, too, if counsel were appointed, multiple motions might be less frequent. In any event, this case must be decided on the authority binding this court.

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: TURNAGE, Judge.

license: Public Domain

text:
    Glenn SCHMIDT and Pauline Schmidt, Plaintiffs-Respondents, v. Elmer J. PAUL and Gertrude A. Paul, Defendants-Appellants.
    No. KCD 28387.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.
    Motion for Rehearing and/or Transfer Denied Aug. 5, 1977.

      James S. Cottingham, Lawrence E. Davis, Independence, for defendants-appellants.
    Ralph E. Pratt, Independence, for plaintiffs-respondents.
    Before DIXON, P. J., and WASSER-STROM and TURNAGE, JJ.
   TURNAGE, Judge.

Glenn Schmidt and Pauline Schmidt brought suit against Elmer J. Paul and Gertrude A. Paul, his wife, for damages resulting from mud and debris washing from the Paul property onto the Schmidt property. The trial court,, sitting without a jury, found in favor of Schmidt and awarded damages in the sum of $5,000.

On this appeal the Pauls contend (1) the judgment should not have been entered against Gertrude Paul because there was no evidence to show her husband acted as her agent or that she had otherwise actively caused the condition complained of; (2) the evidence does not support a finding of the existence of a nuisance on the Paul property; and (3) the Schmidts failed to prove the amount of their damages by substantial evidence. Affirmed.

A preliminary matter which requires disposition concerns the fact the Schmidts filed their petition in two counts, (1) for money damages, and (2) for injunctive relief. The court entered a judgment which awarded the sum of $5,000 to the Schmidts and made no mention of the count concerning an injunction.

If the judgment did not dispose of all issues, then it is not final for purposes of appeal. Bolin v. Farmers Alliance Mutual Insurance Company, 549 S.W.2d 886 (Mo. banc 1977). However, in this case it is easily ascertainable that the judgment is final. The Schmidts did not present evidence designed to support a request for injunctive relief, but rather presented their case on the theory they had been damaged in the enjoyment and occupancy of their home. The Schmidts presented evidence to show their entire complaint against the Pauls, both past and future, would be satisfied by an award of money. The Schmidts’ evidence thus showed they had an adequate remedy of damages and, therefore, injunc-tive relief would not be proper. Primm v. White, 162 Mo.App. 594, 142 S.W. 802, 805[6] (1912); 43 C.J.S. Injunctions § 217, p. 954.

Although the Supreme Court has recently stated in Bolin it is not the function of an appellate court to piece and tack various parts of the record in order to establish a final appealable order, the evidence in this case is clear that Schmidt established an adequate remedy at law for damages and thus destroyed any cause of action for in-junctive relief he may have pleaded.

This case illustrates the care which counsel and courts should exercise to make sure that judgments do dispose of all parties and issues so that no question as to the finality of a judgment may exist. The court should have entered a judgment denying the Schmidts any injunctive relief, but as heretofore stated, their evidence conclusively showed they were not entitled to such relief and so the judgment is in fact final and appealable.

The Schmidts and Pauls each owned and occupied a house and lot with the respective lots joining at the rear. The Paul property was located to the south and was on a higher elevation than the Schmidt property. Prior to the time Schmidt purchased his house and lot, a retaining wall had been built to support the Paul land which at that point was a little over five feet higher than the Schmidt property. When Schmidt purchased his property he was led to believe the retaining wall was located on his lot.

Mrs. Schmidt stated about three years prior to the filing of this lawsuit, Mr. Paul approached them with the plan to extend the retaining wall on both ends. The retaining wall, as originally built, was about 20 feet long opposite a patio at the rear of the Schmidt house.

Mr. Paul began construction of a wall with sand on the bottom followed by a series of concrete blocks stacked on top of each other without the use of any material to hold them together. Shortly after the construction of the extension, heavy rains caused the collapse of the partially completed extension. The blocks fell onto the Schmidt patio and yard. Mr. Paul then took his garden tractor, with a “dozer” blade, and began moving dirt on. his property. There was a conflict in the evidence in which Mr. and Mrs. Schmidt testified Mr. Paul caused loose dirt to be pushed under a redwood fence which was some 26 inches south of the retaining wall and caused additional dirt to be pushed up so that it washed through the basket weave fence with each rain. Mr. Paul disputed this and stated the only dirt he moved was for the purpose of forming a trough to carry the water as it drained down his property into an adjoining street and to prevent it from draining onto the Schmidt property.

The Schmidts testified the loose dirt which Mr. Paul had pushed up against the fence, together with other dirt and debris connected with the wall extension, washed onto their property and covered their patio and part of their driveway. The Schmidts testified to hauling between 4 and 24 wheelbarrows of dirt and debris from their patio. The Schmidts further testified to extensive inconvenience and discomfort from the presence of mud and other debris washing onto their property, the unavoidable tracking of mud into their house, and the continued presence of dust in the house caused by wind blowing the dried mud.

, The Schmidts introduced evidence to show the only solution to the washing of mud and debris onto their property was the construction of a retaining wall 200 feet in length. There was evidence a retaining wall could be constructed with either poured concrete or masonry. The Schmidts testified as to their estimate of the amount of damages caused by their continuous cleaning efforts and the inconvenience and annoyance caused in the enjoyment and occupancy of their home and property.

When the Schmidts filed this suit it was alleged the retaining wall was on their own property, but a survey later performed at the Schmidts’ request revealed the retaining wall was actually located on the Paul property.

The Pauls first raise the contention the court erred in entering a judgment against Gertrude Paul because there was no evidence to show she engaged in any activities which caused any damage to the Schmidts and because the evidence did not show Mr. Paul acted in any manner as her agent. The Pauls rely on cases involving the active commission of torts, but this case is governed by the law of the continuation and maintenance of a nuisance. The theory of the Schmidts was the maintenance and existence of a nuisance on the Paul property which caused them damage. In Grogan v. Broadway Foundry Company, 87 Mo. 321 (1885) the court held that a nuisance on land in the joint possession of two entities was a nuisance continued and maintained by both for which both were liable. 87 Mo. 329. In this case the Pauls admitted both Mr. and Mrs. Paul owned the property on which the nuisance causing damage to the Schmidts was located. The evidence was further that this was a city lot and the inference is inescapable that Mrs. Paul in living in the house located on their lot had notice of the existence of the condition which caused damage to the Schmidts. By her joint possession with her husband of the land on which the nuisance was located, she was jointly liable with him for the nuisance continued and maintained thereon. Grogan, supra.

The Pauls next contend the court erred in entering judgment against them because the Schmidts failed to prove by substantial evidence the existence of a nuisance. The facts heretofore recited were amply supported by the evidence. The only evidence submitted came from the Schmidts except for the testimony of Mr. Paul who was called as an adverse witness by the Schmidts. In addition to the evidence already recited, the Schmidts testified after the blocks, mud and debris had washed onto their property they talked with Mr. Paul about removing the material and taking action to prevent its recurrence. They testified Mr. Paul told them if they wanted the blocks up they could take them up themselves. In addition Mr. Paul testified he had refused to repair or replace the washed out wall and would continue to refuse to do anything about it. The judgment was amply supported by substantial evidence.

The Pauls finally contend the judgment for $5,000 is erroneous because there was no evidence to establish and prove actual damages. The Schmidts produced several experts who testified as to the way the condition could be corrected to avoid damage to the Schmidts. This consisted of either building a retaining wall some 200 feet in length or terracing and sodding the Paul property. The Schmidt experts testified a masonry wall to accomplish the purpose would cost $7,640 and a poured concrete wall would cost $3,117.50. The Pauls made no objection to this testimony concerning these amounts as showing damage to the Schmidts. In addition the Schmidts testified they had been damaged a total of $3,000 because of the inconvenience and damage to the enjoyment of their home by reason of the presence of the mud, dust and debris. Further damages testified to were $350 for taking down the redwood fence in order to complete the retaining wall and $185 for survey and title search.

It is apparent the sum of $5,000 awarded by the court is well within the estimate of damages made by the Schmidts and their witnesses. There was no contrary evidence submitted by the Pauls.

The Pauls further contend as a part of this argument the evidence did not show a difference in rental value or useable value of their real estate and state this is the only measure of damages which may be applied resulting from a temporary nuisance. This contention was answered by the Supreme Court in McCracken v. Swift & Co., 265 S.W. 91 (Mo.1924). In that case the court quoted with approval the rule applicable in nuisance cases at 265 S.W. 92[1]:

“A plaintiff who occupies a home is not limited to the recovery of the diminished rental value of it, but may be compensated for any actual inconvenience and physical discomfort which materially affected the comfortable and healthful enjoyment and occupancy of his home, as well as for any actual injury to his health or property caused by the nuisance.”

The damages proved here fell within this rule.

The judgment is affirmed. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

All concur.


author: DIXON, Presiding Judge.

text:
    Elwyn L. CADY, Jr., Executor, Plaintiff-Appellant, v. HARTFORD FIRE INSURANCE COMPANY, Defendant-Respondent.
    No. KCD 28516.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.
    Motion for Rehearing and/or Transfer Denied Aug. 5, 1977.
    Application to Transfer Denied Sept. 12, 1977.

      Elwyn L. Cady, Jr., pro se.
    Glenn McCann, William J. Gotfredson, Kansas City, for defendant-respondent.
    Before DIXON, P. J., and WASSER-STROM and TURNAGE, JJ.
   DIXON, Presiding Judge.

Defendant received a general verdict on plaintiff’s two-count petition in a court-tried case. Plaintiff’s counts were for damages and specific performance. Plaintiff appeals, claiming in four separate points that the court erred in entering judgment on the specific performance count of plaintiff’s petition. Judgment is to be affirmed on the authority of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

The original plaintiff, Elwyn L. Cady, instituted the suit on June 10, 1965. After the original plaintiff died on December 15, 1970, his son and his wife, Elwyn L. Cady, Jr. and Annabelle L. Cady, co-executors of the senior Cady’s estate, were substituted as the plaintiffs. Annabelle Cady died before trial. The case is brought by Elwyn L. Cady, Jr. as the sole plaintiff and executor of the senior Cady’s estate. The case was twice removed to the Federal District Court for the Western District of Missouri. Each time it was remanded to the Jackson County Circuit Court because the amount of alleged damages was insufficient to invoke federal jurisdiction. The case was tried to the court on July 28, 1975.

The first of plaintiff’s four separately numbered points may be readily disposed of. He urges that the court’s order referring to “plaintiff’s claim for damages” and in favor of the defendant is in error because the plaintiff limited his submission to his claim for specific performance. The judgment order in pertinent part, reads:

“Based upon the evidence presented, the court does this 23rd day of September, 1975 find the issues in favor of the defendant and against the plaintiff and enters its judgment against the plaintiff on plaintiff’s claim for damages and in favor of the defendant.”

The judgment order states that it finds the issues in favor of the defendant and against the plaintiff. In State ex rel. State Highway Commission v. Wiggins, 454 S.W.2d 899, 901 (Mo. banc 1970), the trial court found ‘“the issues against [appellant] and in favor’ of respondents, . . .’’On appeal the court held that the trial court did not err because:

“As a general rule, in the absence of evidence to the contrary a general judgment for one party involves a finding in that party’s favor on all issues properly before the court.”

In the plaintiff’s first amended petition, he pleaded for damages and, alternatively, for specific performance. Furthermore, the plaintiff argued during the course of the trial that he was seeking specific performance. The issue of specific performance was properly before the trial court.

It is a general rule of construction of judgments that judgments should be construed “ ‘in light of situation of the court, what was before it, and the accompanying circumstances’ ... its meaning should be determined in light of the character and objective of the proceeding culminating in the judgment.” Jeans v. Jeans, 314 S.W.2d 922, 925 (Mo.App.1958). Moreover, in construing a judgment, reference to the record as a whole, including any memorandum by the trial court, should be made in order to determine if the judgment has left any issues undecided. Chuning v. Calvert, 452 S.W.2d 580, 582 (Mo.App.1970); State ex rel. Dalton v. Mattingly, 275 S.W.2d 34 (Mo.App.1955); and State ex rel. Anderson Motor Service Co. v. Public Service Commission, 348 Mo. 613, 154 S.W.2d 777 (1941). After reviewing the entire record, it is clear that the court’s judgment order finding “the issues against the defendant and in favor of the plaintiff” found against the plaintiff on all issues properly before it, including the issue of specific performance.

Thus, the procedural stance of this case is that the trial court has found the issues against plaintiff and in favor of defendant on both counts of plaintiff’s petition. So considered, the issue to be determined under points 2 and 4 as briefed and argued by the plaintiff is the sufficiency of the evidence to support the finding against the plaintiff.

The plaintiff claims damage to three buildings located on a farm in Livingston County, Missouri. He contends the roof of the dwelling house, tool shed, and barn were damaged by a windstorm on June 29, 1960. The record is clear that the buildings in question were validly insured against windstorm damage by the defendant on the date in question. No one witnessed the alleged damage to the buildings by a windstorm. Mr. Cady, Sr. was not on the property when the alleged damage occurred. The elder Cady became aware that his property had been damaged by windstorm by a letter from Mr. Girdner, an insurance and real estate agent in Chillicothe, Missouri. Mr. Girdner acted both as Cady’s agent to rent the dwelling house on the farm and as agent for defendant. In the letter of August 18, 1960, Mr. Girdner informed Cady that the roof of the dwelling house as well as the tool shed and barn had been damaged. Mr. Cady replied in a letter to Mr. Girdner telling him to have the defendant repair the damage but not build an entirely new roof on any of the buildings. A proof of loss form authorized by the defendant shows that the defendant offered to pay Cady $90 for the damage. The defendant estimated that the cost of replacing the roof of the house was $300. The defendant deducted $210 from the estimated cost in its offer to the plaintiff because it felt the roof had substantially depreciated in value at the time it was damaged. The defendant also contended that the roof of the house could not be repaired, as Cady had requested, but would have to be replaced.

The defendant’s witness, John Ford, is an associate of Mr. Girdner. He testified that he is experienced in the roofing business, having been involved in contract roofing before he became associated with Mr. Gird-ner. He stated that he was familiar with the buildings which were allegedly damaged. He indicated that the plaintiff had previously made several claims for windstorm damage to the roofs of his buildings. Ford testified that from photographs which were shown him during trial taken of the buildings after June 29, 1960, and from his own personal knowledge of the buildings both prior to and after June 29, 1960, he saw nothing indicating damage to any of the roofs caused by wind. He testified that the condition of the roof of the house was caused by old age and deterioration. He testified that the roof of the dwelling house could not be repaired regardless of the cause of its damage, but could only be replaced.

Because the case was tried to the court, the court’s judgment will be sustained unless there is no substantial evidence to support it, unless the judgment is against the weight of the evidence, unless the judgment erroneously declares the law, or unless the judgment erroneously applies the law. Murphy v. Carron, supra; City of Jefferson v. Smith, 543 S.W.2d 547, 551 (Mo.App.1976). Determination of the credibility of the witnesses is for the trial court. Chemical Fireproofing Corp. v. Bronska, 542 S.W.2d 74, 77 (Mo.App.1976).

As noted, the thrust of the plaintiff’s argument under points two and four of his brief is that the trial court erred in finding against the plaintiff because sufficient evidence establishes that the alleged damage was caused by windstorm.

The plaintiff admits in his brief that the evidence that wind caused damage to his buildings is based upon the August 18,1960, letter from Mr. Girdner to Mr. Cady. In the letter, Mr. Girdner states that Mr. Cady’s buildings suffered damage by reason of the June 29, 1960, storm. The plaintiff contends that the letter by Girdner constitutes an admission by an agent of the defendant that the damage was caused by winds. Assuming, arguendo, that the letter from Mr. Girdner constitutes an admission by the defendant that windstorm on June 29, 1960, caused damage to the plaintiff’s buildings, the judgment must still be affirmed because it is not the only evidence, and there is substantial evidence to support the judgment. Murphy v. Carron, supra.

The testimony of the defendant’s witness, John Ford, indicates that the damage to the plaintiff’s property did not occur by wind. Ford had had extensive experience in the roofing business with respect to dwellings and barns in the Livingston County area before he became an associate of Mr. Girdner. He testified that by reason of his experience in the roofing business, he was able to distinguish between damage caused by wind and other types of damage. He testified that he was familiar with the buildings which were on the Cady property. His testimony indicates that in the years prior to June 29, 1960, Mr. Cady had made several claims for windstorm damage to the roofs of his buildings. Mr. Ford identified certain photographs of the plaintiff’s buildings in question. He stated that the condition of the roofs of the buildings in the pictures and as he had observed personally since June, 1960, did not result from windstorm but from natural deterioration. He testified that because of the conditions of the roofs, the roofs could not be repaired but only replaced, regardless of the cause of the damage. Mr. Livingston, a building contractor whose testimony was offered by deposition, testified that he examined the buildings in question on two occasions soon after the alleged storm. He testified that he could find no evidence of damage to the roof from the June 29, 1960, storm.

The plaintiff’s evidence that the storm on June 29, 1960, caused damage to his buildings rests on two documents. The letter from Mr. Girdner of August 18, 1960, implies that Mr. Girdner himself had not personally observed either the storm causing the damage or the damage itself. The letter implies that the resident tenants on the farm informed Mr. Girdner after the storm that the storm had caused damage to the buildings. As noted, his agency was dual, both for defendant and plaintiff.

The evidence indicates that the senior Cady left the farm on June 29, 1960, and never observed the damage. He did not estimate the monetary amount of the wind damage.

Moreover, no evidence indicates that the agent of the defendant who estimated in the proof of loss form that the replacement of the roof would cost $300, of which $210 would be depreciated, personally inspected the property damage. It appears he based this proof of loss on an estimate made by Mr. Livingston which Mr. Girdner had submitted to the defendant’s agent.

The only two witnesses who had personally observed the plaintiffs buildings after June 29,1960, testified that the condition of the roofs did not result from wind damage. Mr. Livingston, who inspected the buildings two times soon after the storm, testified that he believed the condition of the roofs resulted from natural deterioration, not windstorm damage. John Ford, who was familiar with the property both before and after June 29,1960, testified that he did not believe the condition of the roofs was caused by wind damage.

Based upon the above record evidence, the judgment is supported by substantial evidence and is not against the weight of the evidence. The evidence does not compel the contrary finding, that a windstorm on June 29, 1960, caused the damage to plaintiff’s property for which he seeks to hold the defendant liable.

Under the rule of Murphy v. Carron, supra, the City of Jefferson v. Smith, supra, and since the determination of the credibility of the witnesses was for the trial court, Chemical Fireproofing Corp. v. Bronska, supra, the judgment is sustained. The plaintiff’s argument in point III of his brief regarding the effect of § 379.150 RSMo 1969, is theoretically correct but inapplicable because on this record proof of the existence and extent of damage caused by windstorm is insufficient to show that damage occurred to the plaintiff’s property against which he was insured, as § 379.150 RSMo 1969, requires in order for it to be enforceable. The judgment is affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    Jack D. HESS, Michael C. Moore, Manuel McClaskey, James Simerly, Raymond C. Hickok, Jr., Harvey G. Crow, Jr., Steven C. Marriott, Roy D. Breit, Appellants, v. William J. BENNETT (Mayor of St. Joseph, Missouri), Respondent.
    No. KCD 28686.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.
    Motion for Rehearing and/or Transfer Denied Aug. 5, 1977.

      William E. Shull, Edward A. Coulson, Kansas City, for appellants.
    Randall R. Jackson, St. Joseph, for respondent.
    Before DIXON, P. J., and WASSER-STROM and TURNAGE, JJ.
   WASSERSTROM, Judge.

By this action, eight former police officers sought judicial review in the Circuit Court under Chapter 536 RSMo 1969 and Rule 100 of the action by the Mayor of St. Joseph, Missouri, in upholding severance of their employment from the St. Joseph Police Department. From the judgment of the Circuit Court affirming the Mayor, all eight appealed. Since the filing of this appeal, the claims of appellants Hess and Moore have been resolved to the mutual satisfaction of all parties and their appeals have been dismissed. The appeals of the other six former officers remain for disposition.

In April 1975, an investigation by the St. Joseph Chief of Police indicated that a number of the police officers had been engaged in sex acts with a certain young woman in St. Joseph, both on and off duty. After confronting each of the officers in question on April 25, the Chief called each of them in to his office on the morning of April 26. He then stated to each that he had a choice of resigning from the force or having the Chief issue a suspension letter followed at the end of seven days by termination of employment. Hess and Moore each refused to resign and was given a letter of suspension. The other six chose to sign letters of resignation.

Subsequently appellants retained counsel and filed an appeal to the city Personnel Board pursuant to Section 7.10 of the City Charter. That section provides that any employee under the classified service “who shall be discharged or reduced in rank or compensation” shall have the privilege of a public hearing before the Personnel Board, that the Board shall submit its recommendations to the Mayor, and that the latter may then at his discretion reinstate or restore the employee.

At the hearing before the Board, the city attorney filed a motion to dismiss each of the appeals now in question on the ground that each of the affected appellants “resigned and were not discharged or reduced in rank or compensation.” The Board took extensive evidence on the issue of whether the resignations had been coerced and ultimately denied the motion on the following grounds: that “the City failed to prove the allegations contained in its Motion to Dismiss by a preponderance of the credible evidence;” and that “fairness and justice in cases of the seriousness here involved require that these appeals be heard on their merits.” With respect to the merits of the case, the Board recommended that Moore and Hess be reinstated; that Hickok, Sim-erly, Crow and Marriott be suspended without pay for 30 days; that McClaskey be suspended for 30 days and placed on 120 days probation; and that Breit be suspended for 30 days without pay and that he be reduced to the lowest patrolman pay rate and that he be placed on probation for 120 days.

When these recommendations reached the Mayor, he rejected and declined to follow them. The Mayor’s action was explained in an identical letter sent to each of these appellants dated June 11, 1975. The key portion of the Mayor’s rulings was as follows:

“I have given careful consideration to all of the evidence recorded in the transcript and have concluded that I must disregard the Personnel Board’s action in refusing to dismiss your appeal to that Board. “The Personnel Board indicated that the City had failed to prove their Motions to Dismiss, but this finding is totally unsupported by the evidence. The City produced evidence by Chief Glenn Thomas, his Administrative Aide Mrs. LaVerne Boyer, various ranking members of the Department, and very significantly, elicited admissions from you that you were not coerced into resigning from the St. Joseph Police Department. I find that the evidence overwhelmingly supports a finding that you resigned from the Department of your own free will and that consequently, no formal charges were made against you which the City could show as causes of dismissal. It has always been the position of the City and understood by its employees, as testified to by the President of the F.O.P., that employees who resign do not have the right to appeal to the Personnel Board. “Consequently, I believe the action of the Personnel Board was erroneous in this regard. Your resignation has been accepted, finalized, and your termination from the Department will stand, effective as of that date.”

Appellants’ Points on Appeal are that the Mayor did not act in an impartial, unprejudiced and unbiased manner; that his decision was improper, illegal and an abuse of discretion in that it was not supported by evidence and in contradiction of existing policies and procedures which did not condemn off-duty sexual activity; and that his decision was the result of improper conclusions and evidence and in violation of the Federal Constitution by denying appellants the right to cross-examination, due process of law and equal protection. Respondent answers each of those contentions in his brief, but also makes a counterpoint that each of these six appellants severed his employment by resignation and that those resignations are not subject of appeal or judicial review. On oral argument before this court, counsel for appellants conceded that a voluntary resignation is not subject to review, stating in this regard:

“I think there are two basic questions. Number 1 is the question of resignation. If the court finds that the resignations were knowingly, voluntarily made and the men fully understood that they would lose their right of appeal, then we belong outside because obviously then the trial court was right in sustaining the action.”

However, appellants’ counsel went on in oral argument to attack the voluntary character of the resignations, on the grounds that the circumstances under which the resignations were given were inherently coercive as to each of the officers; that the Police Chief had committed a breach of good faith in that he had represented that there would be no publicity, but that in fact considerable publicity was given immediately after the resignations; and that the resignations were not knowingly made in that the officers did not realize that by resigning they were waiving their rights to a review by the Personnel Board.

It is questionable whether the argument as outlined by counsel on oral argument has been properly preserved by the Points on Appeal as set forth in the brief. Nevertheless, pursuant to a generous interpretation, the points as outlined in oral argument will be considered and ruled.

If these resignations were in fact the result of duress or fraud or otherwise involuntary, then the situation would be equivalent to a discharge, and an inquiry would be necessary into whether under all of the evidence the terminations of employment were properly imposed. Cacchioli v. Hoberman, 31 N.Y.2d 287, 338 N.Y.S.2d 865, 291 N.E.2d 117 (1972); Varela v. Board of Police Commissioners, 107 Cal.App.2d 816, 238 P.2d 62 (1952); People v. Voorhis, 20 N.Y.S. 941 (1892); Rider v. City of Batesville, 220 Ark. 31, 245 S.W.2d 822 (1952). However the record here fails to show any duress, fraud or involuntariness such as is contended for by appellants.

With respect to the claim of duress, the legal test to be applied is whether the injured party was bereft of the free exercise of his will power — whether he was subjected to such a state of mind as to be deprived of free moral agency. Weisert v. Bramman, 358 Mo. 636, 216 S.W.2d 430 (1949); Coleman v. Crescent Insulated Wire & Cable Co., 350 Mo. 781, 168 S.W.2d 1060 (1943); Ensign v. Home for Jewish Aged, 274 S.W.2d 502 (Mo.App.1955). The evidence in this case falls far short of showing duress under that standard. When the Police Chief called in each of the appellants, he did no more than to offer each of them a choice between voluntary resignation and a letter of suspension to be followed by involuntary termination. A number of witnesses, including some of the appellants themselves, testified that there was no compulsion or “arm twisting.” Indeed, appellants Hickok, Simerly, Crow and Breit (as well as Bryne who resigned at the same time) all conceded that their respective resignations constituted a matter of their own free choice. Further, the fact that Hess and Moore refused to resign tends to show that no effective duress was brought to bear.

With respect to the suggestion of fraud on the part of the Police Chief, nobody claimed that he made any promises or threats, nor is there any testimony that he made any misrepresentation to any of the officers who submitted resignations. The closest intimation along this line is the agreed fact that Chief Thomas told the appellants that on resignation only a statement to that effect would go into the personnel file, whereas termination proceedings would require a statement of charges and a full summary to be inserted. The record shows nothing to show that the personnel file of any appellant contained anything beyond what Chief Thomas said.

What appellants complain about is that the news conference called by the Mayor in the afternoon following the resignations frustrated appellants’ expectation that there would be no publicity. However, with regard to this matter of media publicity, no representation was made which can support a charge of fraud. Chief Thomas testified that he made no promise or prediction with respect to what newspaper publicity there might be and that in fact he stated that he had no control over the news. There was also other testimony supporting the conclusion that Chief Thomas did not represent that no newspaper publicity would result, including the testimony of appellants Hickok and Simerly.

With respect to the contention that the resignations were not knowingly made, the appellants did not testify that they submitted their resignations in any mistaken reliance upon a right of appeal to the Personnel Board. Their testimony before the Personnel Board does not indicate that their decision to resign was so motivated or that they even had an appeal in contemplation at that time. Moreover, and of decisive importance, that right of appeal was a matter of law, set forth in the City Charter, ignorance of which can furnish no valid basis for avoiding an otherwise voluntary action. Appellants are held to constructive knowledge of this legal provision. Lafayette Park Baptist Church v. Scott, 553 S.W.2d 856, p. 859, decided by Missouri Court of Appeals, St. Louis District, May 24, 1977.

It must be concluded that the Mayor was correct in his finding that the City’s motion to dismiss as filed before the Personnel Board was entitled to be sustained.

Affirmed.

All concur.

      . The City Personnel Manual, Rule Number XVI-1 also sets forth the employee’s right to a hearing before the Personnel Board “in a case involving his discharge or reduction in rank or compensation.”

      . The Mayor also stated in each letter that “there is not the least doubt in my mind after reviewing the transcript but that you are guilty of conduct which is unbecoming to a member of the City’s Police Force, and in fact there is evidence in the transcript that you have even admitted such misconduct on occasions prior to the Personnel Board hearing.” However, it is unnecessary to review these additional findings, inasmuch as hereinafter shown the May- or’s action is fully supported on the ground that each appellant resigned by his own free uncoerced act.

      . The following question was put to Hickok and answered as follows: “Q. Did he [Chief Thomas] ever indicate that if you resigned that publicity would be subdued or would not be given to the newspapers? A. He said that if we resigned that our name would be in the newspaper and that probably would be Conduct Unbecoming an Officer, or something like that.” Simerly’s testimony was quite similar.


author: SWOFFORD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. George PARKS, Appellant.
    No. KCD 28839.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.
    Motion for Rehearing and/or Transfer Denied Aug. 5, 1977.

      Bruce W. Simon, Simon, Simon & Katz, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   SWOFFORD, Presiding Judge.

The appellant (defendant) was charged with tampering with a motor vehicle and with the possession of marihuana in excess of 35 grams. In the court below, he was found guilty of the tampering charge (Section 560.175 RSMo 1969) and not guilty of the marihuana charge, by the trial court, sitting without a jury. He was sentenced to three years in the custody of the Missouri Department of Corrections and this appeal followed.

The defendant raises two points or assignments of error upon which he seeks reversal of his conviction. Resolution of these points requires a brief summary of the evidence.

On the night of July 21,1975 or the early morning of July 22, 1975, a 1975 Cadillac Eldorado convertible automobile disappeared from the car lot of Galen Boyer Motors in Independence, Missouri. It was light blue in color with a convertible dark blue top and blue interior. The serial number of this vehicle was F6L67S5Q279979. On July 22, 1975, Mr. Willis Giffin, sales manager of the Galen Boyer Motors, reported this vehicle as stolen, to the Independence, Missouri Police Department, giving a full description of the car, including the serial number.

On August 4, 1975, Charles Conyers, a detective assigned to the Criminal Investigation Unit of the Independence Police Department, received a telephone call from an unknown person that the automobile which had been stolen could be found at a certain location in Kansas City, Kansas. The informant gave him a description of the car but the police of that city did not locate it at the place given. On August 7, 1975, Co-nyers received another call from the same informant, advising him that the car was in the parking lot of Goodwill Industries between 17th and 18th Streets on Campbell Street in Kansas City, Missouri. He immediately advised Detective Willie Pinkston of the Kansas City, Missouri police department and made arrangements to meet Pinkston in that vicinity. Conyers gave Pinkston a complete description of the car, including the serial number.

Detective Pinkston went to the parking lot and found a Cadillac automobile, unoccupied, answering the exterior and interior descriptions given him by Conyers. Pink-ston then checked the serial number and found it identical with that of the Boyer Motors Cadillac. The location of the serial number on the car is not made clear in the record.

After Conyers had joined Pinkston, they set up surveillance of the Cadillac and after about four hours the defendant and a woman companion approached the car, entered it and drove away, the defendant operating the vehicle. Conyers and Pinkston followed the Cadillac in their separate police cars and after a short distance, with the assistance of a marked police vehicle of the Kansas City police department, stopped the Cadillac and placed the defendant and his companion under arrest.

Conyers thereupon opened the door on the driver’s side and turned off the ignition but did not remove the keys. He thereupon sealed the car doors and windows and ordered it towed to the Independence police station. The car was later returned to Galen Boyer Motors, the owner. Upon further examination of the keys, it was found that they were not the standard Cadillac car keys, which were marked with “GM” on one side and the Cadillac crest on the other. The keys used by the defendant did not have these markings.

At the time of his arrest, the defendant told the officers that he was “buying” the car. He did not testify in his own behalf but offered the testimony of Rosemary Middleton.

Her testimony was at best confusing and conflicting, but it purported to show that on July 25, 1975, which was three days after the discovery that the Cadillac was missing from the Galen Boyer lot, she was at an apartment at 3733 Paseo in Kansas City and saw the defendant and one Leroy Pool, who said he was a “wholesale car dealer”, and the defendant in conversation, saw them sign a paper, identified as Defendant’s Exhibit No. 8, and saw the defendant give Pool $700.00. Pool did not testify and was not further identified.

The parties to this appeal have not seen fit to comply with the provisions of Rule 81.15, which requires all exhibits to be filed with the clerk of this court on or before the day the case is set for hearing, although admonished to do so in the printed docket and subsequently by letter. Such neglect constitutes not only disregard of the clear mandate of the rule but lack of respect for this court, and would justify summary action. The time must come when the case load of the appellate courts will require such action, even in criminal cases.

It appears from the record, statements of counsel and of the trial court, that Defendant’s Exhibit No. 8 was a purported Bill of Sale for an automobile bearing a different serial number than the one here involved, and the court reluctantly received it into evidence “for whatever it was worth”.

Neither Conyers nor Pinkston had a warrant for the arrest of the defendant nor for the search of the automobile.

The defendant’s first point on appeal is that the court erred in “failing to suppress the automobile and the evidence concerning the automobile as the seizure of the same was accomplished without warrant and without probable cause”, in derogation of his constitutional rights. It should be noted that the basis of this complaint, as stated in defendant’s first assignment of error, is the warrantless seizure of the automobile and not any subsequent search thereof. However, the defendant, in the argument portion of his brief on his first point, asserts that the act of Detective Pinkston initially, while the Cadillac was in the Goodwill parking lot, and of Officer Conyers subsequently, after the car was taken into police custody, of checking the registration or serial number, were acts of search in violation of his rights.

The first point lacks validity for a number of reasons.

The proof conclusively established that the automobile was stolen from Galen Boyer Motors; there was sufficient justification for the court to find that defendant failed to advance a satisfactory or reasonable explanation of'his possession of it; and, he therefore lacked sufficient possessory or proprietary interest in it to acquire requisite standing to contest its seizure or “search”. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 1569 [1,2], 36 L.Ed.2d 208 (1973); State v. Bates, 540 S.W.2d 161, 164-165 [1] (Mo.App.1976), and cases cited therein; State v. Thompson, 490 S.W.2d 50, 51-52 [1] (Mo.1973).

Further, the constitutional propriety of a warrantless search and seizure must be determined upon the facts of each case. While warrantless searches and seizures are constitutionally offensive, they are definite and well-recognized exceptions which cleanse them from such blight. State v. Peterson, 525 S.W.2d 599, 603 [1, 2] (Mo.App.1975).

Two of these exceptions are where a search or seizure is conducted where “probable cause” exists and where they occur incident to a lawful arrest. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); City of Kansas City v. Butters, 507 S.W.2d 49, 53 [2, 3] (Mo.App.1974); State v. Stark, 506 S.W.2d 1, 3-4 [2, 3] (Mo.App.1974). Again, whether a search or seizure falls within either of these exceptions depends upon the facts of such case.

Here, Conyers and Pinkston had a complete description of the stolen Cadillac which matched the car found in the Goodwill parking lot. To make positively sure, Pinkston checked the serial number. After the arrest of the defendant and seizure of the car, Conyers also made this verification. Whether or not the checking of the number constituted a “search” need not and is not here decided. There was certainly probable cause for this police action by Pinkston, and Conyers had probable cause to repeat this and seize the vehicle incident to the arrest of the defendant.

The defendant strongly asserts that a warrant should have been obtained during the several hours that the officers had the car under surveillance. It must be recalled that during this period they had no knowledge as to who had been driving the ear, who would take physical possession of it, how many persons they might be called upon to confront, or when. They were maintaining the surveillance over a stolen vehicle, then established as an object which “offended against the law”. Such actions, under the circumstances of the case, were justified and not unreasonable. The actions of the officers were constitutionally permissible. The defendant’s first point is ruled against him.

The appellant’s second point charges the trial court with error in denying his motion for acquittal as there “was no evidence to sustain the proposition of guilt because there was no evidence of criminal intent by appellant, who was operating vehicle under color of Bill of Sale.”

There can be no dispute that criminal intent is a necessary element of the crime for which defendant stands convicted. Under Section 560.175 RSMo 1969, the intent required a showing that the defendant operated the Cadillac knowing he did not have the owner’s permission. State v. Ransom, 500 S.W.2d 585, 587 [1] (Mo.App.1973); State v. McLarty, 414 S.W.2d 315, 318 [5] (Mo.1967). The intent here, as in many other crimes, may be shown by circumstantial evidence. State v. Crawley, 501 S.W.2d 31, 32 [2] (Mo.1973). As the court said in State v. Ransom, supra, at l.c. 588 [3]:

“ * * * we hold that the exclusive and unsatisfactorily unexplained possession of property proven to have been recently stolen permits an inference that the possessor is the thief or that he has knowledge of the theft. * * * [5] In the case before us, * * * appellant was driving a car stolen less than two hours before appellant’s arrest. From these facts, the jury could, and did, infer that appellant knew he did not have the owner’s permission to operate the vehicle. # * * it

See also: State v. Goodman, 531 S.W.2d 777, 778 [2] (Mo.App.1975).

The trier of the facts, here the trial court, could draw the inference of criminal intent from the facts and circumstances shown by the state.

The defendant here attempted to “explain” his possession of the stolen Cadillac through the testimony of Rosemary Middleton and Defendant’s Exhibit No. 8. In State v. Ransom, supra, at l.c. 588 [5], the court said,

“ * * * The jury (here, trial court) could also choose to disbelieve, as they apparently did, the defense witness who claimed he saw a Mr. Howard give appellant keys and papers to the car just before the arrest.” (Statement in parenthesis supplied)

It is equally obvious in the case at bar that the trial court did not believe the explanation proffered through the Middleton testimony. Under this state of the record, the defendant’s possession of the stolen car “stands unexplained”. State v. Goodman, supra, at l.c. 778. See also: State v. Benfield, 522 S.W.2d 830, 833 [5] (Mo.App.1975). The defendant’s criminal intent was supported by the evidence and the court did not err in failing to sustain the motion for acquittal.

The two authorities relied upon by defendant on this point are inapposite.

The judgment is affirmed.

All concur.

      . The search conducted by a police technician disclosed that the car contained approximately 150 grams of marihuana. The defendant was charged with the crime of its possession, as above noted, but was acquitted by the trial court of the charge, and therefore the constitutionality of the search of the interior of the car is not involved in this appeal.


text:
    STATE of Missouri, Respondent, v. Mike WILSON, Appellant.
    No. KCD 28875.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.
    Motion for Rehearing and/or Transfer Denied Aug. 5, 1977.
    Application to Transfer Denied Sept. 12, 1977.

      Richard J. Yocum, Asst. Public Defender, St. Joseph, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., and WASSER-STROM and TURNAGE, JJ.
   WASSERSTROM, Judge.

On a jury finding of guilt on charges of second degree burglary and stealing, defendant was sentenced to two years on each count to run concurrently. He appeals, assigning eight points of error. We affirm.

Inasmuch as defendant does not challenge the sufficiency of the evidence, only a short statement of facts is necessary in order to place the points on appeal in understandable context. On Sunday morning, November 16, 1975, Mr. Harry Tate and his grandson Clarence Minnenhall left their home to go to church, taking along with them Johnny Hughes, who lived in the same neighborhood. After Sunday School, Johnny said that he could not stay for services and accordingly Minnenhall drove him back and dropped him off in front of the Tate house. Minnenhall returned to the church and stayed through the services, after which he returned home with his grandfather.

Upon that return, they observed a change in the back entrance which consisted of an outer door and an inner door. The outer door which had been slammed tightly shut before the early morning leaving was no longer in that condition. The inner door, which had been left bolted closed, was ajar. Upon a search of the interior of the house, Minnenhall was unable to find a certain .32 caliber pistol and certain coins. A watch and a CB radio were missing. Johnny Hughes confessed to entering the house and taking some of the contents mentioned and he implicated the defendant. Defendant denied any participation and offered an alibi defense.

I

Defendant for his first point argues that the trial court erred in allowing the prosecuting attorney to ask improper questions on voir dire which had the purpose and effect of committing the jury to a verdict of guilty. One question directed to the venire panel was, “would the fact that the defendant is eighteen years old prejudice you in any way in your assessment of the punishment?” Another question was ‘do you have any moral, religious or conscientious scruples which would make it difficult or prejudice you or make it impossible for you to sit and render a judgment against your fellow man? . . . Would that include perhaps even sending a man to jail?”

Those questions do not constitute an improper attempt to commit the jury in advance of the evidence. Rather it represented a proper effort to ascertain any preconceptions or predispositions on the part of the veniremen which might prevent an open minded consideration of the case. State v. Ford, 487 S.W.2d 1 (Mo.1972); State v. McCaine, 460 S.W.2d 618 (Mo.1970); State v. Isreal, 537 S.W.2d 565 (Mo.App.1976).

II

Defendant next complains of the admission of testimony of three children, one of whom was age 10 and the other two of whom were age 9. The objection is that these children were incompetent for the reason that their testimony did not have an independent basis but instead was induced by suggestions on the part of Minnenhall.

The evidence shows that shortly after discovering the burglary, Minnenhall went around the neighborhood looking for people who might have observed the occurrence and he found the three children in question, Roger Turner, Wilris Turner and Cindy King. Minnenhall stated to each of these children whom it was that he suspected of breaking in. On the basis of that, defendant argues that the testimony given by the three children was induced by Minnenhall’s suggestion rather than resting upon independent recollection.

In order to qualify as a witness, a young child must have an independent recollection of the occurrence. Hildreth v. Key, 341 S.W.2d 601, 610 (Mo.App.1960). That element has been met in this case. Roger Turner and Cindy King both testified that they did, in fact, see defendant break into the back door of the Tate house. Wilris Turner testified that he saw defendant and two companions come out of the back door of the Tate house carrying a gun, a CB radio and some coins. This evidence was sufficient to support a finding that each of these young witnesses had an independent recollection. The determination as to competency of these witnesses was within the sound discretion of the trial court. State v. Robertson, 480 S.W.2d 845 (Mo.1972).

III

Defendant next argues that the prosecutor’s opening statement failed to set forth any facts as to a breaking into the Tate home, and that the opening statement was therefore defective under Rule 26.02, Section 546.070 RSMo 1969 and State v. Jones, 363 Mo. 998, 255 S.W.2d 801 (1953). The record in this case fails to support the argument. In the course of his opening statement the prosecuting attorney said this: “So Mr. Minnenhall and his grandfather come home later on, and they discovered signs of forcible entry.” This statement is sufficient because, aided by inferences reasonably to be drawn therefrom, it informed defendant of the charges against him. State v. Masters, 530 S.W.2d 28 (Mo.App.1975).

IV

Defendant contends next that the court erred in overruling his request to interview State’s rebuttal witness Teddy Hughes, who was not endorsed upon the information as a witness. This argument cannot be sustained.

In the course of his alibi testimony, defendant testified that Johnny Hughes and his brother Teddy came to his house to solicit him to join them in breaking into the Tate house and that he refused. In rebuttal, the State called Teddy Hughes who testified that he was out of town at the time of that alleged conversation. Defendant objects that Teddy Hughes was not listed as a witness in the information and that the trial court’s denial of his request to interview Teddy Hughes before his testimony deprived him of a right to effective cross-examination.

The non-listing of Teddy Hughes on the information is of no consequence because he appeared solely as a rebuttal witness. State v. Hooker, 536 S.W.2d 487[6] (Mo.App.1976). Moreover, defendant himself gave rise to the occasion for the State calling Teddy Hughes, by his own testimony that the two Hughes brothers called upon him on the morning of the crime. Defendant’s own testimony demonstrates an awareness that Teddy Hughes was a figure of potential importance in the case. That witness was as equally available to defendant as he was to the State, and if defendant failed to interview him before trial that was a situation of defendant’s own making.

In any event, the testimony by Teddy Hughes was merely cumulative to that of his brother Johnny Hughes, who had previously testified that Teddy was out of the city on the morning of November 16, 1975. Any error with respect to the admission of testimony by Teddy Hughes was therefore lacking in prejudice. See cases collected in Missouri Digest Appeal and Error, Key No. 1051(1).

V

Defendant next argues that the trial court erred in allowing the prosecutor to state in closing argument that the three child witnesses should be given a reward for coming in and telling the truth. His objection is that whether these witnesses were telling the truth was a jury question as to which the prosecutor should not be permitted to give the jury his own personal belief.

A prosecuting attorney has the right to comment upon the evidence and the credibility of witnesses and it is in the sound discretion of the trial court to determine whether such comments are prejudicial. State v. Brooks, 298 S.W.2d 511 (Mo.App.1957). The argument here in question falls within that rule. The ruling of the trial court did not constitute an abuse of discretion.

VI

Defendant objects next that the information and the State’s verdict directing instruction both charge that defendant stole among other items a revolver belonging to Harry S. Tate, whereas Tate testified at trial that his revolver had not been taken. On the basis of this, defendant argues that the instruction varies impermissibly from the evidence.

Although Tate did testify as indicated, there was evidence by other witnesses that a revolver was in fact taken from the Tate home during the morning in question. It is entirely possible that defendant and his associates took the revolver and then one of them returned it prior to the time that Tate arrived home from church. Accordingly, the testimony by Tate does not necessarily prove an inconsistency between the instruction and the evidence as a whole.

Even if it be assumed that the revolver was never removed from the Tate home, still the resulting variance is not fatal. Where an instruction hypothesizes several acts in the conjunctive, a guilty verdict may properly stand if at least one of those acts is supported by evidence. State v. Stucker, 518 S.W.2d 219 (Mo.App.1975). Moreover any variance in this respect would not prejudice any rights of the defendant. It is to be noted that he did not contest the taking, but rather attempted to shift the blame to others, arguing an alibi defense for himself. State v. Scobee, 331 Mo. 217, 53 S.W.2d 245 (1932). See also State v. Scott, 534 S.W.2d 537 (Mo.App.1976).

VII

Defendant contends next that he was deprived of a fair trial because the prosecutor conducted his case in such a way as to require the defendant to make numerous objections and which caused his attorney to appear as an obstructionist. Defendant cites ten instances of such alleged improper conduct on the part of the prosecutor. In some of those instances no objection was made by defendant, and in other instances objections were made and sustained. Whether there was conduct on the part of the prosecutor of a nature depriving defendant of a fair trial was much more within the province of the trial court to decide than an appellate court. The trial court was in a far better position to observe the conduct in question and the effect upon the jury. The trial court denied a motion for new trial based upon the ground now urged, and the record here falls far short of showing any abuse of discretion in that ruling.

VIII

Defendant complains finally that the prosecutor made misstatements of the evidence in his closing argument which deprived defendant of a fair trial. In his brief in this court defendant sets forth four instances of alleged misstatements. However, no such similar particularity was contained in the motion for new trial, in which defendant contented himself with the broad allegation: “The misstatements of the evidence by the State’s attorney on closing argument deprived defendant of a fair trial.”

Rule 27.20 requires that a motion for a new trial must set forth “in detail and with particularity” the specific grounds relied upon. The assignment quoted above from defendant’s motion for new trial plainly fails to meet that requirement and therefore preserves nothing for review. State v. Hill, 539 S.W.2d 521[21] (Mo.App.1976). The invitation to review this question as plain error is declined; the record shows no manifest injustice or miscarriage of justice.

Affirmed.

All concur.


text:
    Ella M. THEUS, Plaintiff-Appellant, v. The INDUSTRIAL COMMISSION of Missouri, the Division of Employment Security of the State of Missouri, and Allright Electronic Foods, d/b/a Don’s World of Beef, Defendants-Respondents.
    No. KCD 28968.
    Missouri Court of Appeals, Kansas City District.
    June 27, 1977.
    Motion for Rehearing and/or Transfer Denied Aug. 5, 1977.
    Application to Transfer Denied Sept. 12, 1977.

      Dale K. Irwin, Kansas City, for appellant.
    Rick V. Morris, William W. Clinkenbeard, Jefferson City, for respondent, Division of Employment Security.
    Charles B. Fain, Jefferson City, for respondent, Labor and Industrial Relations Commission.
    Before DIXON, P. J., and WASSER-STROM and TURNAGE, JJ.
   DIXON, Judge.

Plaintiff appeals from a judgment of the Circuit Court of Jackson County, Missouri, affirming the order of the Industrial Commission of Missouri denying review of a decision by the Appeals Tribunal of the Division of Employment Security rejecting plaintiff’s claim for unemployment benefits. For purposes of judicial review, the findings and decision of the Appeals Tribunal becomes that of the Commission. Section 288.200(1), RSMo 1969.

Plaintiff filed a claim for unemployment compensation. A deputy in the Division of Employment Security denied the claim finding that plaintiff left work voluntarily without good cause because no firm promise of a raise had been made. Plaintiff appealed the deputy’s decision to the Appeals Tribunal which after a hearing also determined that plaintiff left her work voluntarily without good cause attributable to her work or to her employer. Section 288.050.-1(1), RSMo 1969. Plaintiff’s appeal of the decision of the Appeals Tribunal to the Industrial Commission was denied, and the decision of the Commission was then affirmed by the Circuit Court.

Plaintiff argues that the decision of the Commission is against the weight of the evidence, because her employer is estopped by its actions from asserting that she left her employment voluntarily, and, alternatively, that even if it is determined that she voluntarily left her employment, she did so with good cause attributable to her employer. Section 288.050.1(1), RSMo 1969.

The standard of review for appeals from determinations of the Industrial Commission is governed by statute. “In any judicial proceeding under this section, the findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.” Section 288.210, RSMo 1969. This court may not substitute its judgment on the evidence for that of the Commission, its review being limited to determining on the whole record whether the Commission could have reasonably made its findings, considering the evidence most favorable to the results reached. Trail v. Industrial Commission of Missouri, 540 S.W.2d 179 (Mo.App.1976); Laswell v. Industrial Commission of Missouri, 534 S.W.2d 613 (Mo.App.1976).

Plaintiff had been an employee of Don’s World of Beef for two and one-half years when she submitted her resignation in November, 1975. She had obtained another job but agreed to continue at Don’s World of Beef until after the Future Farmers Convention. Shortly after the convention, while plaintiff was still working, the manager of Don’s World of Beef asked her if she would consider staying on if he could get her a pay increase of fifteen cents per hour. Plaintiff agreed, but the manager did not make the request that day. When the manager returned to the restaurant the following day, several employees were angry, having heard, apparently from plaintiff, about his offer. Because of the incident, the manager decided to accept plaintiff’s resignation without seeking the salary increase, to which plaintiff replied that she would go ahead and quit to avoid all of the confusion. Plaintiff’s prospective employment was no longer available, however, because she had informed them that she was going to stay at Don’s World of Beef due to a raise and they, in the meantime, hired someone else.

The Appeals Referee made the following findings of fact:

“The Referee finds that the claimant had given her notice of resignation and that the employer’s manager thereafter asked if she would stay and work for the employer if he could secure approval of a 10 or 15 cents per hour pay increase. The Referee finds that the claimant agreed to stay if such an increase could be obtained. The Referee finds that the claimant was hasty in assuming that a pay increase would be obtained and in notifying her prospective employer that she would not be coming to work. The Referee finds that the claimant had not unconditionally withdrawn her resignation and that the employer decided to accept her resignation rather than grant a pay increase.” (Emphasis supplied).

Plaintiff admits that since she submitted a resignation her separation of employment was, in fact, voluntary, but argues that her employer is estopped from asserting that she voluntarily quit her employment. Plaintiff bases her theory of estoppel upon the manager’s promise to seek a pay increase for her arguing that she justifiably relied upon this representation to her detriment in notifying the prospective employer that she would stay with Don’s World of Beef. The record reveals that the Referee’s finding that plaintiff was too hasty in assuming she would receive a definite pay increase is supported by substantial and competent evidence. Plaintiff’s argument fails since the Referee’s finding disproves the element of reasonable reliance necessary to her theory of estoppel. Graham v. Gardner, 233 S.W.2d 797 (Mo.App.1950); 31 C.J.S. Estoppel § 71 (1964).

In support of her second point, plaintiff contends that her first notice of resignation terminated her employment with Don’s World of Beef. The manager’s later request for her to stay gave rise to a new contract of employment subject to the condition of an increase in salary. The manager’s failure to seek such an increase constituted an arbitrary and capricious termination of the new contract which justified plaintiff’s subsequent leaving of her employment.

The difficulty with plaintiff’s ingenious argument is that it ignores a finding of fact by the Referee that plaintiff’s initial resignation was never unconditionally withdrawn and was therefore still in effect when accepted by the manager. Again, there was ample evidence to support this finding of fact, which is, accordingly, binding on this court. Plaintiff does not argue that there was any evidence of good cause attributable to her work or her employer to justify her initial notice of resignation. The point is without merit.

Judgment affirmed.

All concur.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gregory Tim WHITES, Defendant-Appellant.
    No. 10602.
    Missouri Court of Appeals, Springfield District.
    June 28, 1977.
    Motion for Rehearing or to Transfer to Supreme Court Denied July 13, 1977.
    Application to Transfer Denied Sept. 12, 1977.

      John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Timothy H. Battern, Asst. Public Defender, Rolla, for defendant-appellant.
   BILLINGS, Chief Judge.

A Maries County jury found defendant Gregory Tim Whites guilty of second degree burglary [§ 560.070, RSMo 1969] and he was sentenced by the court as a habitual criminal to a six-year prison term.

There was sufficient evidence for the jury to find the defendant broke and entered the Knights of Columbus building in Rolla with intent to steal. State v. Smith, 521 S.W.2d 38 (Mo.App.1975). Defendant’s purported statement “Jesus Christ, can I have a razor to shave myself?”, allegedly made in the presence of a juror during the noon recess, did not call for a mistrial.

No error of law appears.

An opinion would have no precedential value.

Affirmed. Rule 84.16(b).

All concur.


author: WEIER, Judge.

text:
    BANK OF CRESTWOOD, Plaintiff-Appellant, v. STATE BANKING BOARD of the State of Missouri, and, Gravois Bank, a Missouri Banking Corporation, Defendants-Respondents.
    Nos. 38037, 38579.
    Missouri Court of Appeals, St. Louis District, Division Three.
    June 28, 1977.
    Motions for Rehearing and/or Transfer Denied July 21, 1977.
    Applications to Transfer Denied Sept. 12, 1977.

      Fortis M. Lawder, Clayton, for plaintiff-appellant.
    Irven L. Friedhoff, Jefferson City, for State Banking Board.
    J. Anthony Dill, St. Louis, for Gravois Bank.
   WEIER, Judge.

Two cases have been consolidated on appeal. Each case involves the same parties and turns upon the same facts. Upon application pursuant to § 362.107 RSMo. Supp. 1975, the Commissioner of Finance of Missouri had issued Gravois Bank a certificate of authority to operate and maintain a separate drive-in and walk-up banking facility on Gravois Road in St. Louis County. The Bank of Crestwood opposing the issuance of the certificate then filed an appeal with the State Banking Board. This appeal was dismissed by the board without a hearing. The Bank of Crestwood then filed a two-count petition in the circuit court seeking in Count I a judicial review of the decision of the board and in Count II, in the alternative, direct court review of the commissioner’s decision. A motion to dismiss in the trial court was sustained. Soon after the notice of appeal had been filed in this proceeding from the action of the circuit court in dismissing the petition, the defendant Gravois Bank filed an application with the Commissioner of Finance to change the address of its facility authorized by the prior certificate from one address on Gravois to another within a few doors of the location which had been approved. This prior certificate was revoked and a new certificate of authority was issued by the commissioner authorizing Gravois Bank to maintain and operate the facility at the changed address. A like appeal was taken to the State Banking Board. This appeal was also dismissed and the Bank of Crest-wood again filed a petition in two counts in the Circuit Court of St. Louis County seeking the same relief as in the first proceeding. Both petitions alleged the facts concerning the issuance of the certificates; the second petition alleged revocation of the first certificate; the petitions set forth the refusal of the State Banking Board to consider the appeals and both sought the same relief in the circuit court. Because of the revocation of the certificate in Cause 38037, the issues therein are moot. But because the issues raised in the first appeal are the same as those in No. 38579 and petitioner has preserved all the steps necessary to take its appeal in each case, our resolution of these issues although applicable to No. 38579 would be equally applicable to No. 38037 if the certificate issued by the commissioner in that case had not been revoked. Because of the proximity of the two locations, the evidence submitted in both proceedings would in all probability have a bearing on the validity of the last certificate issued.

The facts couched in the pleadings upon which the trial court made its decision to dismiss the petitions are here briefly stated. The Bank of Crestwood is a state banking corporation with its principal office and place of business in the City of Crest-wood, St. Louis County, Missouri. The defendant Gravois Bank is also a state banking corporation with its principal office and place of business located at 8301 Gravois Road in an unincorporated area known as Affton, St. Louis County, Missouri. The certificate of authority was issued for a separate banking facility for the Gravois Bank and this facility is located approximately 1.6 miles from the principal office of the Bank of Crestwood. The Bank of Crestwood alleged that its primary banking and service area included the location of the new facility and as a result of its location near it, the Bank of Crestwood would be adversely affected, seriously injured and its legal rights, duties and privileges would be prejudiced by the granting of the certificate in the operation of the facility at this location. It was further alleged that the facility at this location would cause the Bank of Crestwood to lose existing and potential customers. Its banking business would be reduced and this in turn would affect Crestwood’s profitability. It would also subject Crestwood, so it is alleged, to unfair and illegal competition. Although these issues are raised in the pleadings, they are not brought before us on this appeal because the State Banking Board determined that the provisions of § 362.107 RSMo. Supp. 1975, did not authorize or empower the board to determine by appeal the subject matter of the appeal and the proceeding was therefore dismissed. The Bank of Crestwood in the first count of its petitions filed in the circuit court prayed for an order directing the banking board to take jurisdiction of the appeal from the granting of the certificate by the Commissioner of Finance. The motions to dismiss as to this count asserted that the banking board had no jurisdiction to entertain the appeal from the action of the commissioner or to hold a hearing upon the merits as to the issuance of the certificate. The motions to dismiss further sought to uphold the action of the State Banking Board in dismissing the appeal on the basis that the Bank of Crest-wood was not a “person . . . aggrieved by a final decision in a contested case” required for judicial review by § 536.100 RSMo. 1969 (Rule 100.03). On appeal from the order of the trial court sustaining the dismissal as to Count I of the petitions, two issues present themselves for resolution: (1) whether § 362.107 RSMo. Supp. 1975 allow appeals to the banking board from decisions by the commissioner granting an application to operate and maintain a separate banking facility; (2) whether petitioner Bank of Crestwood has standing to contest the commissioner’s decision before the board and in turn standing for judicial review. Both of these issues have been decided by the Missouri Court of Appeals, Kansas City District, in an opinion of that court handed down May 31, 1977, in a case entitled Bank of Belton v. State Banking Board, State of Missouri, 554 S.W.2d 451. In this case the court decided that § 362.-107(4) should be read: “[T]he action of the director in granting or denying any such application may be appealed from and be reviewed in the same manner as action by him pursuant to § 362.040 may be appealed from and reviewed.” It was determined that other confusing phraseology should be disregarded. The court rejected the contention that only decisions of the commissioner refusing to grant applications, and not decisions granting them, may be reviewed by the State Banking Board. With respect to the issue of standing, the opinion held that a bank is aggrieved by a decision which allows a competitor facility to operate within its trade area and therefore has standing to appeal the decision of the Commissioner of Finance to the State Banking Board. This is a decision of a division of this court, Art. V, §§ 1, 7, Const. of Mo., RSMo. Supp. 1975, and establishes an interpretation of the statutory law which in turn resolves the issues in the cases before us. It is well reasoned, based upon sound principles and precedent, and rules this appeal.

Count II of each petition sought alternative relief by way of declaratory judgment and injunction where an administrative officer has rendered a decision which is not subject to administrative review under §§ 536.150 and 527.010 RSMo. 1969 (Rules 100.08 and 87). Because this is a contested case and judicial review is available under Count I of the petitions, the alternative relief prayed for in Count II of the petitions is not available. State ex rel. Walmar Investment Company v. Mueller, 512 S.W.2d 180, 182, 183[1, 2] (Mo.App.1974).

The judgment of the circuit court is reversed as to Count I of the petitions in both cases and the causes remanded with instructions to remand to the State Banking Board for further proceedings on the merits.

KELLY, P. J., and GUNN, J., concur.

      . Although both parties refer to respondent William R. Kostman as “Commissioner of Finance,” that office is now entitled “Director of Finance” under the Omnibus State Reorganization Act of 1974, RSMo. Supp. 1975, Appendix B, Section 4.8. Section 362.107 RSMo. Supp. 1975 speaks of the “Director of Finance” but other older sections, namely § 362.040 and § 361.094 RSMo. 1969, speak of “the commissioner.” Any reference in this opinion to the “Commissioner of Finance” shall also be referable to the same officer under the title of “Director of Finance.”


text:
    STATE of Missouri, Plaintiff-Respondent, v. Calvin ROSS, Defendant-Appellant.
    No. 10488.
    Missouri Court of Appeals, Springfield District.
    July 15, 1977.
    Motion for Rehearing or Transfer Denied July 29, 1977.
    Application to Transfer Denied Sept. 12, 1977.

      John D. Ashcroft, Atty. Gen., Frank J. Murphy, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Jeffrey C. Vaughan, Joslyn, Joslyn, Vaughan & Pruett, Charleston, for defendant-appellant.
   BILLINGS, Chief Judge.

Defendant Calvin Ross was tried as a habitual criminal for armed robbery and felonious assault. A Mississippi County jury found him guilty of the two felonies and the trial judge sentenced him to consecutive terms of 35 years and 25 years. We affirm.

Defendant was convicted of the armed robbery of the proprietress of a rural Stod-dard County liquor store and shooting a man as the latter entered the establishment.

Defendant’s first point states: “Appellant’s Conviction Under Count II [felonious assault] Is Erroneous Under the Facts and the Law Stated in the Instructions.”

The point presents nothing for our review. It is wholly contrary to and in violation of Rule 84.04(d), V.A.M.R., in that it does not “. . . state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous . .” (Emphasis added). M & A Electric Power Cooperative v. True, 480 S.W.2d 310 (Mo.App.1972); Weier and Fairbank, Why Write a Defective Brief ?, 33 J.Mo.Bar 79 (1977), and cases cited therein.

Defendant’s remaining two points, alleging error in the reception of evidence concerning a brutal sexual assault upon the proprietress by defendant and his companions before they left the store and her trial identification of the defendant, are not preserved for appellate review. Both items of evidence were received without objection. Defendant’s motion for new trial makes no mention of the testimony. In his brief defendant urges invocation of the plain error rule found in Rule 27.20(c), V.A.M.R.

The rule that where a defendant fails to make known to the trial court his objection so that he might obtain relief and where he fails to call the alleged error to the attention of the trial court in his motion for new trial, he cannot, with few exceptions, raise it for the first time on appeal, is solidly anchored in this state. And, the plain error proviso of Rule 27.20(c) was not intended to be a catchall for appellate courts to convict a trial court of alleged errors which were not asserted at trial or in the motion for new trial. As the rule states, it is only when the reviewing court deems that manifest injustice or miscarriage of justice has resulted from a non-preserved trial error that the plain error doctrine is activated.

Because we are not unaware that attacks on Missouri procedure and decisions oft find a friendly audience in some halls of the federal system of jurisprudence, we have reviewed the trial transcript to determine whether plain error infected the defendant’s trial so as to bring about manifest injustice or result in a miscarriage of justice. We conclude not.

The defendant’s guilt was established by overwhelming evidence. The proprietress of the liquor store was beaten by the defendant and his companions and robbed. The insertion of a bottle into her body was part of a continuous occurrence intimately connected with the crime for which the defendant was being tried. State v. Gray, 478 S.W.2d 654 (Mo.1972). In such a situation the state is not required to sift and separate the evidence. State v. Robb, 439 S.W.2d 510 (Mo.1969).

We have also reviewed the defendant’s claim with respect to his in-court identification by the store proprietress and find no error. She had ample opportunity to view the defendant during the course of the robbery and this afforded her an independent basis for her trial identification. Any alleged improper pretrial identification procedure did not render the admission of the identification testimony a miscarriage of justice or plain error. State v. Barnett, 537 S.W.2d 885 (Mo.App.1976). The witness, under the facts presented, not only had an opportunity to observe the defendant but also, in view of what transpired, to long remember those who subjected her to such criminal abuse.

There was no error, plain or otherwise, in the shooting victim exhibiting his wound-scar to the jury. This provided visible and concrete evidence that the victim had in fact been shot. A victim’s wounds can be properly shown in evidence. State v. Curtner, 262 Mo. 214, 170 S.W. 1141 (1914).

We have examined those matters required by Rule 28.02, V.A.M.R., and find no error.

The judgment is affirmed.

All concur.

      . The court ordered the sentences to run consecutively to all penitentiary sentences previously imposed. We affirmed prior convictions of defendant in State v. Ross, 523 S.W.2d 841 (Mo.App.1975), in which prison terms totalling 55 years had been adjudged.