author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Frank Vito MANDINA, Defendant-Appellant.
    No. 36907.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Aug. 17, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.

      Vatterott, Shaffar, Dolan & Pepka, Gene R. Pepka, St. Ann, Rosecan, Popkin & Cher-vitz, Alan G. Kimbrell, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Robert L. Presson, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   NORWIN D. HOUSER, Special Judge.

Frank Vito Mandina appeals from a conviction of Burglary Second Degree upon trial by jury and an 8-year sentence by the trial judge under the Second Offender Act.

There was no abuse of discretion in refusing to allow the assistant public defender to withdraw and in refusing defendant an opportunity to obtain counsel of his own choosing. At arraignment on December 12, 1974, following a finding of indigen-cy, the court appointed the Circuit Public Defender of the Twenty Second Judicial Circuit as counsel for defendant, and James Bucher, an assistant in that office, entered his appearance as attorney for defendant. Defendant pleaded not guilty and the cause was assigned to division. On December 19, 1974, defendant appeared in court in person and by Thomas Nold, another assistant in the public defender’s office, and the cause was set for trial on February 3, 1975. On the latter date defendant appeared in person and by Charles S. Stone, yet another assistant public defender. Before the trial commenced on the morning of February 3, the State, by leave of court, filed an amended information, charging the same offense of burglary in words and figures identical with the original information excepting the addition of a charge under the Second Offender Act that defendant was convicted of Burglary Second Degree and Stealing in February, 1972. The State also asked leave to endorse on the information the names of three additional witnesses (a medical records custodian and two patrolmen). Defendant’s counsel claimed surprise at the additional endorsements and requested a 30-day continuance “in order to adequately prepare the case in light of the additional endorsements.” Inquiry disclosed that the patrolmen whose names were endorsed were present at the scene when defendant was apprehended and would testify that he was taken to the hospital shortly after this incident and treated for a contusion of the ear and thumb. This information was contained in the police report which had been made available to the defense. The court overruled the request for a continuance based on surprise, commenting that there was no basis for such a claim in view of the fact that the information in question had previously been divulged to the defense. No objection was made to the filing of an amended information. Mr. Stone then stated that the 23-year-old defendant had expressed dissatisfaction with and lack of confidence in Mr. Stone; that defendant was unwilling to disclose to him any information regarding the case; that defendant failed to appear for an interview with all of his witnesses, scheduled for January 31, 1975, “apparently because once again he mistrusted and distrusted his counsel”; that “[w]e are, therefore, not prepared to try the case”; that defendant had had no benefit of counsel. Mr. Stone further suggested that there was a serious question as to defendant’s indigency “inasmuch as Mr. Mandina’s family is at this time prepared to hire and retain private counsel. They have expressed a desire to do so and an extreme unwillingness to proceed to trial today.” The court overruled the motion for a continuance on the ground of lack of cooperation with counsel, observing that defendant had had “since last year in which to hire private counsel if he desired to do so. He has chosen not to do so. It appears to this Court that at this time this is purely a dilatory tactic and the Court will proceed with the trial.” Mr. Stone again called the attention of the court to the matter of employment of private counsel, restating that while defendant had no funds available for that purpose, his immediate family had more than adequate resources to hire and retain private counsel. The court countered with this statement: “They have also had more than adequate time to engage the hiring of private counsel and they have chosen not to do so,” and ordered the case to go to trial “on the present basis.” Mr. Stone represented defendant throughout the trial, and in the post-trial stages, up to and including the sentencing of defendant, following the overruling of the motion for new triál.

Appellant claims abuse of discretion in forcing him to trial with an unprepared lawyer not of his own choosing, without any previous continuance having been requested or granted, under circumstances not indicating that his requests for a continuance were made in bad faith for the purpose of delay, citing two cases from other states, and United States v. Seale, 461 F.2d 345 (7th Cir. 1972). We need not resort to the law of other jurisdictions on this question. Missouri cases hold that it is discretionary whether a last minute request for a continuance shall be granted to obtain private counsel; that an indigent accused in a criminal proceeding has no absolute right to be represented by counsel of his own choosing, and that it is not an abuse of discretion to deny a continuance asked for on the morning of the day the case is set for trial where, as here, the accused has had more than six weeks to obtain different counsel, and accused has not been denied skilled and effective representation. State v. Lee, 521 S.W.2d 180 (Mo.App.1975); State v. Jeffer-ies, 504 S.W.2d 6 (Mo.1974); State v. Hollins, 512 S.W.2d 835 (Mo.App.1974), and numerous Missouri cases cited.

Appellant claims prejudice by failure of Mr. Stone (1) to object to evidence that when arrested appellant made no statement, and to Mr. Stone’s eliciting that fact in cross-examining Officer Braxton; (2) to impeach two officers by the use of the transcript of testimony at the preliminary hearing to show a discrepancy between their trial testimony (that the figure they first saw hanging by his hands from an upper level of the building was never out of their sight until he was arrested) and their testimony at the preliminary hearing (that it was possible that the figure was out of their sight for two or three minutes before the apprehension); (3) to object to the court’s action in taking away from the jury the matter of punishment, the State having failed to make the necessary proof under the Second Offender Act that defendant had been imprisoned. With respect to (1): it is reasonable to conclude that counsel pursued this course as a matter of trial strategy on the theory that it would be to defendant’s advantage to impress upon the jury the fact that when arrested defendant made no damaging statements against interest — that he said nothing to incriminate himself. As to (2): Officer Braxton was effectively impeached on this question by Mr. Stone’s searching and insistent cross-examination, which appears to have broken down his firm testimony given on direct examination. He accomplished as much by eliciting damaging admissions from the officer as he could have by use of the transcript. On (3), Mr. Stone objected to the sufficiency of the affidavit but was overruled by the court. He preserved the point in the motion for new trial, and relief is being granted by this court on this ground, infra.

A review of the transcript shows that Mr. Stone had a full understanding of the issues, the strengths and weaknesses of the State’s case and the defense. He cross-examined the State’s witnesses thoroughly and effectively. Many of his objections were sustained. In his discretion and apparently for strategic reasons he did not put this previously convicted defendant on the stand. He argued the case to the jury forcefully and competently. He filed a carefully drawn motion for new trial. Mr. Stone’s representation of this defendant was above average. As a result of his efforts defendant had a fair trial.

Appellant makes the point that it was plain error for the prosecuting attorney to elicit testimony from police officers that when arrested defendant, upon being advised of his rights, did not make any statement; that appellant had a right to remain silent and for the court to permit this exercise of defendant’s right to be used to raise an inference of guilt constituted an invasion of his constitutional rights. Defendant’s counsel not only did not object when the prosecuting attorney first elicited this fact, but in cross-examining Officer Braxton defendant’s counsel joined with the prosecuting attorney in bringing out the fact that defendant made no statement at the time of arrest. As indicated above it is reasonable to conclude that as a part of his trial strategy Mr. Stone purposely chose not to object to this testimony but instead desired that it be brought to light. Cf. State v. Yager, 416 S.W.2d 170, 172 (Mo.1967). Having thus sought to obtain a strategic advantage appellant may not now invoke the rule of State v. Stuart, 456 S.W.2d 19 (Mo. banc 1970), a burglary and stealing case on which appellant relies. In Stuart the admission of evidence that the accused had failed to volunteer an exculpatory statement was considered plain error because the sufficiency of the State’s case of stealing depended upon accused’s recent unexplained possession of the stolen property. In the burglary case now before us there is no issue of recent unexplained possession of stolen goods, and the State had a sufficient case based upon the testimony of the officers and other witnesses to convict the accused. In such case the rule of State v. Stuart with respect to plain error is not controlling. State v. Turnbough, 497 S.W.2d 856 (Mo.App.1973).

Any error in giving Instruction No. 5 on the guilt of all persons who knowingly act together with a common purpose of committing a crime, based on the contention that there was no evidence that anyone but this defendant participated, was nonprejudicial. This language “may be rejected as mere surplusage, because it did not tend to mislead the jury.” State v. Arthur, 57 S.W.2d 1061 (Mo.1933); State v. Mesmer, 501 S.W.2d 192, 197[13] (Mo.App.1973). The implication that other persons may have been involved was gratuitous. State v. Herington, 520 S.W.2d 697, 701[9] (Mo.App. 1975).

Appellant questions the sufficiency of the proof that he was imprisoned on a previous charge and conviction of burglary and stealing, which was a prerequisite to justify the action of the trial judge in sentencing him under the Second Offender Act. On the evidence adduced the trial court properly found a conviction and sentence under the Second Offender Act. The court further found that “the defendant was imprisoned in the Missouri Department of Corrections,” but there was no proof in support of this finding. The only evidence before the court was a certified copy of a sentence and judgment of 2 years’ imprisonment for burglary and 2 years’ imprisonment for stealing, an order of concurrency, and a further order by the court “that said defendant is remanded to the custody of the Federal Marshal on the condition that defendant be returned to the custody of St. Louis County Department of Welfare or to custody of the Missouri Department of Corrections.” There is no evidence that this condition was performed, or that defendant was returned either to the welfare department or the department of corrections, or that defendant was ever imprisoned pursuant to the judgment and sentence. For this deficiency in the proof the judgment and sentence must be reversed and set aside. The cause is remanded with directions to cause defendant, accompanied by counsel, to be brought before the court at an appropriate time for the conduct of a further hearing, after due notice to the State, at which hearing both State and defendant shall be given an opportunity to introduce evidence pro and con on the question whether, after sentence and judgment for the 1972 burglary and stealing, defendant was placed on probation, paroled or imprisoned therefor. The court is directed to make appropriate findings thereon. If the trial court finds that following the conviction and sentence of burglary and stealing defendant was placed on probation, paroled or imprisoned therefor in accordance with § 556.280, RSMo 1969 it may proceed to grant allocution and render judgment and sentence; if not, a new trial shall be ordered in order to give the jury an opportunity to assess the punishment.

Judgment of conviction and sentence reversed and set aside. Cause remanded to the trial court for further proceedings in accordance with this opinion.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.

      . Fish v. Commonwealth, 208 Va. 761, 160 S.E.2d 576 (1968), and English v. State, 8 Md. App. 330, 259 A.2d 822 (1969).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, Appellant, v. ARGONAUT INSURANCE COMPANY et al., Respondents.
    No. 37149.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Aug. 17, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.

      Brendan Ryan, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., St. Louis, for appellant.
    Samuel Raban, St. Louis, for respondents.
   NORWIN D. HOUSER, Special Judge.

The State of Missouri appeals from an order of the St. Louis Court of Criminal Correction denying its motion for judgment following the forfeiture of an appearance bond.

In. a second degree burglary case filed against James Patrick Thomason the defendant, as principal, and Homer Townley, agent for Argonaut Insurance Company, as surety, executed an appearance bond in the sum of $2,500. Thomason failed to appear when his case was called in court, whereupon the court declared the bond forfeited and ordered defendant’s arrest. The surety deposited $2,500 with the clerk of the court. Later defendant was apprehended in Los Angeles, California. He waived extradition and was brought back to Missouri, but it was not the surety who returned defendant from California to Missouri. Two officers of the St. Louis Metropolitan Police Department flew to California, took defendant into custody and returned him to St. Louis. The officers incurred legitimate traveling, hotel, taxi, food and other expenses in the sum of $768.66. After defendant was returned to St. Louis, Homer Townley obtained a copy of the appearance bond and appeared before the judge of the St. Louis Court of Criminal Correction, accompanied by defendant, and surrendered defendant on his bond. At the conclusion of the hearing on the state’s motion for judgment the judge denied the motion, orally stating the following reasons for the ruling: (1) the $2,500 deposit “is not subject to judgment since the bond forfeiture itself had been set aside by the court”; (2) the court has no jurisdiction to render judgment for the amount of the expenses incurred by the state in producing defendant in this state, and (3) the court must render judgment for the entire amount of the bond or not render any judgment (“the entire amount or nothing”).

Section 479.210, RSMo 1969, gives the St. Louis Court of Criminal Correction “power to take recognizances in all cases within its jurisdiction, to declare forfeitures of the same, and award executions upon such forfeitures in like manner and with the same legal effect as the St. Louis circuit court is authorized to do.”

Upon admittance to bail the defendant’s custody is transferred to his sureties, who “know and solemnly contract that the defendant shall appear and abide the orders of the court and in the event of his default are bound by their obligation.” State v. Hinojosa, 364 Mo. 1039, 271 S.W.2d 522, 524 (1954).

“The breach of the bond takes place when the defendant fails to report in court as required and the court enters that fact of record.” State v. Haverstick, 326 S.W.2d 92, 97 (Mo.1959); State v. Norton, 347 S.W.2d 849, 856[11] (Mo. banc 1961).

Rule 32.12 provides for the declaration of a forfeiture if there is a breach of condition of bail, and for setting aside the forfeiture “upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture.” State v. Savage, 461 S.W.2d 887, 889 (Mo. banc 1971), holds that Rule 32.12 “vests the trial court with discretion to remit all or part of the penalty.”

Section 544.640 provides for the forfeiture of a recognizance where without sufficient cause or excuse the defendant fails to appear for trial or upon any other occasion when his presence in court may be lawfully required, and provides for a scire facias proceeding to final judgment, unless the penalty is remitted by the court “for cause shown.”

Rule 32.11 and § 544.610 provide for the exoneration of the surety at any time before final judgment on a forfeited recognizance upon surrender of the defendant in open court, “upon the payment of all costs occasioned by the forfeiture.”

Section 549.020 vests the governor with power to remit the penalty of forfeiture if it appears that by such forfeiture an injustice has been done or great hardship suffered by the defendant which in equity and good conscience would seem to entitle defendant to relief.

State v. Wynne, 356 Mo. 1095, 204 S.W.2d 927, 932[14] (1947), holds that reading the sections now numbered 544.640, 544.610 and 549.020 together, if the accused surrenders voluntarily or is produced by the surety (or bailor) before final judgment on the recognizance the surety must, as of right, be released from further liability on payment of the costs; if the accused is produced by police officers and not by the surety, “the court may for cause remit the penalty upon payment of the costs,” and the governor may remit with or without the production of the accused and before or after final judgment on the recognizance. Wynne further holds that the final wording of § 544.-640 (“unless remitted by the court for cause shown”) vests the court with a judicial discretion to remit the penalty for cause at any time before final judgment on the recognizance, “subject to review if arbitrarily and unreasonably exercised either for or against the sureties.” 204 S.W.2d 1. c. 932, and see Savage, supra, 461 S.W.2d 1. c. 889.

8 Am.Jur.2d Bail and Recognizance § 169, p. 875: “The general rule is that, in the absence of the principal’s wilfulness in defaulting, the sureties may surrender the principal at any time before the entry of final judgment in a proceeding to enforce their liability, and the court may, at its discretion, remit the penalty in whole or in part.”

8 C.J.S. Bail § 91, p. 257, in dealing with the subject of remission of penalty on payment of costs, states: “Under statutes so providing, sureties are entitled to relief on surrender of the principal before final judgment against them on paying, or offering to pay all the costs; and, although sufficient grounds may exist for remitting the forfeiture, yet it is generally made a condition to the granting of such relief that the costs accruing up to the time of the granting thereof should be paid, including those taxable by the court and the sheriff’s fees, and in addition thereto the expenses, if any, legitimately incurred in the apprehension or recapture of accused, * *

In the bond forfeiture case of State v. Foster, 512 S.W.2d 448 (Mo.App.1974), in which the surety was relieved of paying the penalty of the bond for cause shown, it was held that all costs and expenses incurred by the state in traveling to a foreign state to apprehend, transport and produce the defendant in the Missouri court should be paid by the surety.

State v. Savage, supra, 461 S.W.2d 1. c. 890, recognizes that even where the default occurs by reason of the act of the state in holding the defendant elsewhere in Missouri “the surety may be required to pay the costs and expenses incurred by the state occasioned by the default.”

In this state of the law we rule as follows:

1. The St. Louis Court of Criminal Correction had jurisdiction to entertain the state’s motion for judgment in the proceeding to obtain a judgment of default based on the bond forfeiture.

2. The court erred in setting aside the bond forfeiture without giving the state notice and an opportunity to be heard on the question of the state’s right to judgment for the penalty of the bond or to secure reimbursement of legitimate expenses incurred by the state in effecting a return of defendant from California.

3. The surety was not entitled to complete exoneration as a matter of law upon surrender of defendant in open court because the surety defaulted in its obligation to produce defendant, thereby putting the state to the expense of bringing him back to this jurisdiction — an expense for which the surety may be held responsible.

4. The court erred in ruling that it had only power to render judgment for the entire amount of the bond or not to render any judgment thereon, for if in the exercise of its judicial discretion the court remits the penalty of the bond it has the power either to remit the penalty in whole or in part.

5. The court erred in not exercising its judicial discretion on the matter of remitting the penalty of the bond.

6. In case the court remits the entire $2,500 the court has the power to impose a condition that the surety pay all of the court costs and in addition pay the aforesaid expenses incurred by the state.

Accordingly, the order of May 23, 1975 is reversed and the cause is remanded to the St. Louis Court of Criminal Correction with instructions to set aside and vacate the order of May 23, 1975, and to exercise its judicial discretion in the matter of remitting the penalty of the bond and in the matter of attaching a condition or conditions to any order entered remitting the penalty.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Havard McLEMORE, Appellant.
    No. 37206.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 17, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.

      Terry J. Flanagan, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas M. Daly, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

A jury found defendant Havard McLe-more guilty of carrying a concealed weapon. The trial court found one prior felony conviction and sentenced defendant to three years’ imprisonment. He appeals.

Two patrolling police officers saw defendant and another man standing on the sidewalk behind a tractor-trailer. As the police car pulled alongside, the officers saw defendant remove a revolver from his front pocket, hold it briefly and then drop it to the curb.

Defendant’s sole contention on appeal is that the court erred in denying his pretrial motion to suppress evidence of the revolver, contending it was obtained by an illegal search and seizure. This contention has not been preserved for appellate review since it was not raised at the first opportunity consistent with orderly procedure. State v. Goforth, 535 S.W.2d 464[11] (Mo. App.1976). Defendant raised the issue in his pretrial motion to suppress evidence which was denied. When the revolver was offered in evidence at trial, defendant objected to its admission, not on the ground of illegal search, but because the identification and chain of custody of the weapon were improper. These objections did not preserve the issue of the illegality of the search and seizure of the revolver. State v. Stavricos, 506 S.W.2d 51[10] (Mo.App.1974). Though defendant in his motion for new trial again raises the suppression issue, he allowed this point to die at trial and cannot now seek to breathe life into it. State v. Farmer, 536 S.W.2d 748[10] (Mo.App.1976); State v. Johnson, 536 S.W.2d 851[1, 2] (Mo. App.1976).

Defendant urges us to review the issue of illegal search and seizure as plain error under Civil Rule 27.20(c), VAMR. A search involves “a quest for, a looking for, or a seeking out of, that which offends against the law. It implies a prying into hidden places for that which is concealed.” State v. Poor, 533 S.W.2d 245[7-8] (Mo.App. 1976); State v. Hawkins, 362 Mo. 152, 240 S.W.2d 688[3 — 5] (1951). There is no search when an officer merely looks at an object in plain view. State v. Rankin, 477 S.W.2d 72[4 — 5] (Mo.1972).

We find neither error nor manifest injustice nor miscarriage of justice.

Judgment affirmed.

DOWD and STEWART, JJ., concur.


author: DOWD, Judge.

text:
    Charles A. BROWN et al., Plaintiffs-Respondents, v. Sterling M. REDFERN et al., Defendants-Appellants.
    No. 37019.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 24, 1976.

      MeQuie & Deiter, Walter D. McQuie, Jr., Montgomery City, for defendants-appellants.
    Edwards, Seigfreid, Runge & Hodge, Jerome W. Seigfreid, Mexico, for plaintiffs-respondents.
   DOWD, Judge.

Defendants appeal from the order of the trial court enjoining any interference with plaintiffs’ use of a roadway crossing defendants’ land. The trial court found that plaintiffs had established an easement across defendants’ land which was a right of way giving plaintiffs access to their property.

The claimed roadway begins at Route 19, travels south over defendants’ land, and terminates on plaintiffs’ property. At trial, many of the area’s residents testified that the roadway had followed the same course and had been used by pedestrians and vehicles for as long as they could remember. There was testimony that the roadway was being used in the 1920’s and it is shown on a map prepared in 1942 by a United States Geological Survey. This roadway crosses three tracts of land from north to south which will be referred to as the Fitzwater Tract, the Allemann Tract, and Plaintiffs’ Tract. The land is located in Montgomery County, Missouri. Both the Fitzwater and Allemann Tracts are now owned by the defendants. These two tracts will be considered separately in this opinion because the tracts were held in different chains of title prior to acquisition by the defendants at different times in 1973.

The Fitzwater Tract was owned by George Meyer until 1956 when the property was conveyed to the Fitzwaters. The deed to the Fitzwaters reserved the use of a roadway across the tract as such roadway was then in existence, referring to the roadway now disputed by the parties. The Fitz-waters conveyed this property to the defendants in February of 1973. The defendants’ deed specifies that the property is subject to existing roadways over the premises.

The Allemann Tract adjoins the Fitzwa-ter Tract at the latter’s southern border and was owned by Oscar Saak until 1963. In that year, the Saaks conveyed the property to the Allemanns. The Allemanns conveyed the property to the defendants in November of 1973. Neither the Allemanns’ deed nor the defendants’ deed mentions any roadway. Oscar Saak testified that a roadway across the Allemann Tract existed before he acquired the property and that he had never formally or informally agreed with the owner of Plaintiffs’ Tract concerning use of the roadway. During Saak’s period of ownership, George Meyer owned Plaintiffs’ Tract. Saak’s testimony indicates that he merely acquiesced in the use of the roadway by Meyer and tenants on Plaintiffs’ Tract. The evidence before the trial court shows that Vernon Allemann reluctantly allowed the plaintiffs to use the roadway after they purchased their land, and communicated with the plaintiffs about sharing the expense of maintaining the road. In 1965, Allemann wrote to plaintiffs, “as far as to have any objection as to you using the road should not really matter, because it is the road to your farm

Plaintiffs’ Tract is located to the south of the Allemann Tract. The Meyers owned the property for approximately 30 years before they deeded the property to the plaintiffs on December 28, 1964. The Meyers never lived on Plaintiffs’ Tract, but George Meyer permitted tenants to occupy the land. The Doyles lived on this property until some time after 1947. During this tenancy, the Doyles used the roadway in question for access to their home. Ken Doyle moved onto the land again in late December of 1963 and also used the disputed roadway for access. George Meyer used the roadway whenever he went to Plaintiffs’ Tract. The plaintiffs have used the same roadway following their inspection and purchase of their property in 1964.

The case was tried before the court without a jury. The trial court found that plaintiffs had established an easement by prescription across the Allemann Tract and an easement by prescription and by implication across the Fitzwater Tract. We review this court-tried case upon both the law and the evidence, giving due regard to the opportunity of the trial court to have judged the credibility of witnesses. We are under an obligation to affirm the judgment of the trial court unless the judgment is not supported by substantial evidence or is against the weight of the evidence, the judgment erroneously declares the law, or the judgment erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).

THE ALLEMANN TRACT

The law and the evidence before the trial court support its conclusion that plaintiffs and their predecessor in title had established a prescriptive easement over the Allemann Tract. An easement by prescription is created by a use of property shown to be continuous, uninterrupted, visible, and adverse for a period of 10 years. Successive periods of adverse use may be tacked together if privity exists between the users. Guerin v. Yocum, 506 S.W.2d 46, 47 (Mo. App.1974); Trustees of Forestgreen Estates, 4th Addition v. Minton, 510 S.W.2d 800, 803 (Mo.App.1974). Privity exists between George Meyer and plaintiffs by virtue of Meyer’s conveyance of Plaintiffs’ Tract to plaintiffs. Meyer, his tenants, and the plaintiffs have used the roadway across the Allemann Tract for access to Plaintiffs’ Tract for 30 to 40 years prior to institution of this suit.

The use made of the roadway by owners and possessors of Plaintiffs’ Tract has been visible, continuous, and uninterrupted. Both Oscar Saak and Vernon Al-lemann testified that the roadway could be seen as it crossed the Allemann Tract. Al-lemann testified that he had shown the defendants the roadway before they purchased. Saak, Allemann, and defendants were aware that owners and possessors of Plaintiffs’ Tract used the roadway for ingress and egress. While the roadway was not travelled every day by owners and occupiers of Plaintiffs’ Tract, sufficient continuity of use was shown. Whenever Meyer, the Doyles, or the plaintiffs wanted access to Plaintiffs’ Tract, they used the roadway across the Allemann Tract. A use is continuous if it is “traveled at such times by the users as their convenience and business needs required.” Moravek v. Ocsody, 456 S.W.2d 619, 625 (Mo.App.1970).

The evidence does not show that use of the roadway was interrupted prior to institution of this suit. Several gates have been erected along the roadway in the past 10 years, but these gates never actually interrupted use of the roadway. Prior to 1964, only one gate crossed the roadway, and this gate was never locked against the tenants or owner of Plaintiffs’ Tract. Erection of gates on the roadway does not prevent creation of an unrestricted easement if the use is not interrupted or restricted by the gates. Chapman v. Schearf, 360 Mo. 551, 229 S.W.2d 552, 555 (banc 1950).

In the late 1960’s, one wire barrier was erected across the roadway which caused a deviation from the old roadway, but this was accomplished with the consent of the plaintiffs and did not interrupt their use of their easement. Plaintiffs merely agreed to a change in the course of their easement for the benefit of Vernon Allemann who wanted the roadway to go around his alfalfa field. None of defendants’ efforts to deter plaintiffs from using the roadway were successful in interrupting a use which originated at least 30 to 40 years earlier. In view of the fact that plaintiffs’ predecessor in title had established a prescriptive easement across the Allemann Tract, we are unable to find any action by Allemann or the defendants of sufficient quality or duration to have upset the plaintiffs’ easement. See Dalton v. Johnson, 320 S.W.2d 569, 574 (Mo.1959).

Ample evidence also supports the conclusion that the use of the roadway over the Allemann Tract was adverse. A use is adverse if, at the time the use is made, the user does not recognize any authority in those against whom the use is claimed to either prevent or permit its continuance. McDougall v. Castelli, supra; Benson v. Fekete, 424 S.W.2d 729, 738 (Mo.banc 1968). The plaintiffs have shown open, notorious, continuous, and uninterrupted use for more than 10 years, therefore raising a presumption the use was adverse under a claim of right. Guerin v. Yocum, supra, at 48. The defendants did not sustain their burden of proving that the use of the Allemann roadway was permissive or under a license. Defendants apparently assert that the use was permitted by the agreement of Vernon Al-lemann. We need not determine whether Allemann granted permission to use the land. Oscar Saak testified that no formal or informal agreement was reached concerning the use of the roadway during Saak’s ownership of the Allemann Tract. Saak testified that it had always been tacitly understood that the roadway would be used to reach Plaintiffs’ Tract. Saak’s testimony shows an acquiescence by the owner of the servient tenement rather than a grant of permission. Thus, by 1963 when Saak conveyed the Allemann Tract, an adverse use of the roadway had established a prescriptive easement which could not be converted to a permissive use by subsequently granting permission. Speer v. Carr, 429 S.W.2d 266, 269 (Mo.1968); McDougall v. Castelli, supra.

THE FITZWATER TRACT

The trial court need not have determined, as it did, whether or not plaintiffs had established an easement by prescription or implication. The evidence before the trial court was sufficient to prove an express easement by reservation across the Fitzwater Tract. The Meyers’ deed to the Fitzwaters in 1956 contained the following provision:

“Reserving, however, unto the said Parties of the First Party [George and Effie Meyer] a roadway over said property herein conveyed as now located.”

The parties do not argue that this provision referred to any roadway other than the right of way claimed by the plaintiffs, but the defendants have argued that George Meyer reserved only a personal right to use the roadway.

In interpreting the meaning of a clause in a deed reserving an easement, the intent of the parties is controlling. Stroup v. Johnson, 539 S.W.2d 711 (Mo.App. 1976); Stotzenberger v. Perkins, 332 Mo. 391, 58 S.W.2d 983, 986 (1933). The evidence introduced at trial indicates that George Meyer intended to create an appurtenant easement benefiting Plaintiffs’ Tract. An easement is never presumed to be a mere personal right if it can be fairly construed as an easement appurtenant to some other estate. Engelhardt v. Gravens, 281 S.W. 715, 718 (Mo.1926); Bradley v. County of Jackson, 347 S.W.2d 683, 687 (Mo.1961).

The evidence in the case before us justifies construction of the Fitzwater deed as reserving an easement appurtenant to Plaintiffs’ Tract. When the Meyers conveyed the Fitzwater Tract, they still owned Plaintiffs’ Tract. George Meyer’s most likely intent was to reserve a right of way benefiting his remaining land. The fact that the easement concerns a roadway long used for access to Plaintiffs’ Tract also indicates an intent to create an appurtenant easement. The only use George Meyer made of the easement was to gain access to Plaintiffs’ Tract. Meyer’s probable intent was to benefit Plaintiffs’ Tract, not to reserve a right which was personal. Residents of the area had long used the Allem-ann roadway to reach property in their possession lying south and southeast of the Allemann Tract. George Meyer would have had this knowledge in mind when he reserved his easement, indicating that the easement was reserved to benefit Plaintiffs’ Tract. The evidence in this case as to the nature and subject of the easement reserved suggests that the easement is an incident of possession of Plaintiffs’ Tract. It is thus an appurtenant easement. Lawrence v. Hennessy, 165 Mo. 659, 65 S.W. 717, 719 (1901). Although the easement reserved in the Fitzwater deed does not, by its terms, extend to the “heirs” or “assigns” of the Meyers, such words of limitation are not required to create an appurtenant easement. Stroup v. Jackson, supra; Stoutimore v. Quincy O. & K. C. R. Co., 215 Mo.App. 194, 256 S.W. 121 (1923); see § 442.460 RSMo 1969.

The fact that the Meyers’ deed of Plaintiffs’ Tract to plaintiffs included an easement over property lying to the southwest of the plaintiffs’ land does not prove that George Meyer intended to reserve only a personal right to use the northern roadway across the Fitzwater Tract. Defendants’ brief suggests that Meyer probably believed that he was powerless to convey use of the entire roadway to plaintiffs because he did not own the Allemann Tract. Therefore, defendants’ brief argues, Meyer intended to reserve a personal right when he conveyed his northern property to the Fitzwaters. While Meyer’s failure to appreciate the extent of his interest in the Allemann roadway may well have been Meyer’s motive in securing another access route to Plaintiffs’ Tract, we do not believe that such a motive negates an intent to create a perpetual easement across the Fitz-water Tract for the benefit of Plaintiffs’ Tract. The circumstances surrounding the reservation of the easement across the Fitz-water Tract indicate that Meyer intended at that time to create an appurtenant easement, and the fact that other estates lie between the dominant and servient tenements does not void the creation of the appurtenant easement. Benson v. Fekete, supra at 740.

Defendants have also argued that plaintiffs do not have the benefit of the Fitzwater easement because plaintiffs’ deed does not mention this easement. However, one of the chief characteristics of an appurtenant easement is that it runs with the dominant tenement. Downey v. Sklebar, 261 S.W. 697, 698 (Mo.App.1924). An appurtenant easement passes with the conveyance of the dominant tenement whether or not specifically conveyed in the deed. Beldner v. General Electric Co., 451 S.W.2d 65, 75 (Mo.1970).

Even though defendants purchased the Fitzwater Tract before they purchased the Allemann Tract, they had notice of the easement across the Fitzwater Tract. The grantee of a servient tenement takes the land subject to all duly recorded prior easements whether such easements are mentioned in his deed or not. Loumar Dev. Co. v. Redel, 369 S.W.2d 252, 257 (Mo.1963). The reserved easement in the Fitzwater deed was recorded. In addition, the deed from the Fitzwaters to the defendants stated that the property was subject to existing roadways.

The evidence before the trial court sustains the trial court’s finding of an easement by prescription over the Allemann Tract and establishes an easement by reservation across the Fitzwater Tract. Although the trial court’s findings noted the reservation of the easement across the Fitz-water Tract, the trial court concluded that plaintiffs had established an easement by prescription or implication across the Fitz-water Tract. We do not believe that such conclusions were necessary to find an easement across the Fitzwater Tract in favor of Plaintiffs’ Tract.

In setting forth the course of the easement across the Fitzwater and Allemann Tracts, the trial court relied upon a survey- or’s plat, plaintiffs’ exhibit number 11. This plat showed the route of the roadway and was prepared in May of 1974. At two points on the marked route, the roadway deviated from the old roadway because wire had been stretched across the old roadway. Evidence before the trial court shows that the northernmost barrier was a short stretch of wire which was not raised above the ground until shortly before this suit was instituted. Until the wire was raised, plaintiffs traveled over the old roadway. The course of plaintiffs’ easement has not been altered at this point. The southernmost barricade was a longer stretch of wire erected in the late 1960’s. The old roadway was changed with plaintiffs’ consent apparently to go around Vernon Allemann’s alfalfa field. Plaintiffs thus agreed to an alteration of the route of their easement.

The trial court ordered that the course of plaintiffs’ easement was the route followed by the old roadway, without deviation, as set out in the surveyor’s plat. This is correct, except for the alteration permitted by the plaintiffs. Accordingly, we set forth the correct easement with the deviation. The route of the easement commences at the northwest corner of the southwest quarter of the northwest quarter of Section 11, thence with the north line of said southwest quarter of the northwest quarter, south 87° 51' east, 700.1 feet to the point of the beginning of the centerline described in the surveyor’s plat, thence south 28° 06' east, 720.7 feet to a point, thence south 0° 11' west, 335.0 feet to a point, thence continuing in the same direction approximately 175 feet to a point, thence south 24° 11' east, 100.9 feet to a point, thence south 21° 22' west, 137.5 feet to a point, thence south 3° 11' east, 371.3 feet to a point, thence south 18° 50' west, 550.1 feet to a point, thence south 29° 01' west, 109.7 feet to the end of the centerline described by the surveyor.

The trial court’s judgment is correct insofar as the court found that plaintiffs have proven an easement across defendants’ property. The location of this easement is as set out above in this opinion. The trial court’s order enjoining defendants from interfering with plaintiffs’ use of the roadway across defendants’ property is affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.

      . From the transcript and exhibits, the relativ ; positions of the three tracts are as follows:

      . A tenant’s adverse use of an easement over a third party’s land inures to the benefit of the landlord so as to support the landlord’s right to an easement by prescription. McDougall v. Castelli, 501 S.W.2d 855, 858 (Mo.App.1973).


author: GUNN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ronald JOHNSON, Defendant-Appellant.
    No. 37612.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 24, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.
    Robert C. Babione, Public Defender, J. C. Jones, Asst. Public Defender, Joseph F. Beatty, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Robert M. Sommers, Jefferson City, Brendan Ryan, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   GUNN, Judge.

After trial by jury in St. Louis Circuit Court, defendant was convicted of two counts of first degree robbery by use of a dangerous and deadly weapon. On appeal, defendant challenges the in-court identification of him by his two victims, arguing that such identification was maculated by an unnecessarily suggestive lineup procedure. We find defendant’s contention is without merit and affirm the conviction.

The defendant’s two robbery victims were Michael States and LaVetta Jefferson. States was the proprietor of the Boogie Shack, a recreation center in St. Louis, and Ms. Jefferson was assisting him. On the night of the robbery, States clearly observed the defendant and a companion standing under flood lights outside the Boogie Shack immediately prior to their making an effort to sell States some merchandise. A few minutes after the unsuccessful sales effort, as a customer was leaving the Boogie Shack, defendant and his companion forced their way in. Defendant displayed a shotgun, and States leaped over a counter to escape, falling to the floor. Defendant shot at States with the pellets grazing States’ hair but not wounding him. As States lay on the floor behind the counter where he had fallen, defendant stood over him with States looking directly into the defendant’s face while the defendant’s companion removed items from the cash register, States and Ms. Jefferson. Defendant then ordered States out of the store, and States observed defendant leave the store and get into an automobile. During the entire episode — which lasted about five minutes in a well lighted room — defendant’s face was almost always within clear view of States.

LaVetta Jefferson also had initially seen defendant under the Boogie Shack flood lights prior to his entry and sales effort. Ms. Jefferson testified that from the time the defendant entered the Boogie Shack until the robbery was over she never took her eyes off defendant as he displayed the shotgun. Ms. Jefferson was at a distance of about three feet from the defendant when he shot at States, and she was struck in the leg by some of the shotgun pellets. After she was shot, Ms. Jefferson continued to watch the defendant as he ordered her from behind the counter and made her lie down.

Based on accurate descriptions of the defendant given to them by the victims, police investigating the robbery showed photographs of possible suspects to States and Ms. Jefferson. About two months after the robbery, States and Ms. Jefferson, separately, picked out a photograph of the defendant as the shotgun bearing robber. The day after the photographic identification, States and Ms. Jefferson, again separately, identified defendant in a five man police lineup as the robber. They also unhesitatingly identified the defendant in court.

No discussion is necessary as to whether the lineup or photographic identification procedures were unnecessarily suggestive. We find from the evidence that States and Ms. Jefferson each had strong independent basis for the in-eourt identification, and considering the totality of the circumstances, we find the in-court identification proper. No error of law appears, and, particularly, there was no error in admitting the identification testimony. State v. Madison, 537 S.W.2d 563 (Mo.App.1976); State v. Johnson, 536 S.W.2d 851 (Mo.App. 1976); State v. Proctor, 535 S.W.2d 141 (Mo.App.1976); State v. Arnold, 528 S.W.2d 164 (Mo.App.1975); State v. Rutledge, 524 S.W.2d 449 (Mo.App.1975).

It is apparent from the record that defendant had a fair trial. We find that this opinion is without precedential value, and the judgment is affirmed in compliance with Rule 84.16.

SIMEONE, P. J., and KELLY, J., concur.

      . “Q. When you put your hands back up in the air who were you looking at?
      A. [LaVetta Jefferson] The man with the shotgun. [Defendant]
      Q. All right. How far away from you is he?
      A. Was he at that time?
      Q. Yes, Ma’am.
      A. About three feet away.
      Q. Is he on the other side of the counter?
      A. He was right at the edge of the counter (indicating).
      Q. How long did you have to observe this man at this time?
      A. About a minute or so I guess.
      Q. All right. Did you take your eyes off of him at all during that time?
      A. No, I was watching him.”

      . We observe that within the 340 pages of transcript produced at a cost of $374.00 that the evidence was overwhelming as to defendant’s guilt.


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Randolph VANCE, Appellant.
    No. 36852.
    Missouri Court of Appeals, St. Louis District, Division Pour.
    Aug. 31, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.

      Robert A. Hampe, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Charles B. Blackmar, Robert M. Sommers, Asst. Attys. Gen., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Randolph Vance, charged by indictment under the Second Offender Act, § 556.280 RSMo 1969, was found guilty by a jury of robbery in the first degree by means of a dangerous and deadly weapon and was sentenced by the court to imprisonment for a term of twenty-five years. We affirm.

Appellant does not challenge the sufficiency of the evidence. A jury reasonably could find that about 10:30 o’clock in the evening of May 9,1974, in the 3500 block of Grand Avenue in the City of St. Louis, appellant robbed Richard Pruitt of $126 by use of a pistol.

Appellant first asserts that “the trial court erred in refusing to admit into evidence, on grounds of relevancy, medical records of the Atman Medical Health Clinic which showed that Richard Pruitt had twice been treated by that clinic’s ophthalmology department and that on at least one occasion, the condition treated was ‘blurred vision.’ ”

Richard Pruitt, the victim of the robbery, testified on direct examination that he observed appellant during the robbery, that he identified him in a lineup shortly thereafter, and that he wore glasses to “read with,” but that it was “only small reading” that he could not read. On cross-examination he testified that about eleven o’clock of the morning of May 9, 1974, he had been to a place, “up on Grand and St. Louis Avenues,” the name of which he could not remember, and a doctor had given him “a shot because [he] wasn’t feeling good.”

After appellant testified in his own defense, he offered in evidence certain medical records of the Atman Medical Health Center located at St. Louis and Grand Avenues. The records were not marked for identification, and neither the records nor copies of them are before us. In comments to the court in chambers in the form of an offer of proof, appellant stated that the records “would show that Richard Pruitt was not treated at the Atman Medical Health Center on May 9, 1974 as he previously testified.” The State objected to this offer, which was sustained by the court on the grounds that (a) “the offered evidence is [of] a collateral fact which would not tend to prove or disprove any real issue involved in this case,” and (b) the evidence “is not available to the defendant without a waiver” by Richard Pruitt. As a “further offer of proof,” appellant restated (a) above, and then asserted that the records would show that “on two occasions, January 21, 1974 and February 20th, 1974, Richard Pruitt was treated by the Ophthalmology Department of the Atman Medical Care Center and on one of these occasions * * [January 21, 1974] the reason for the request [for treatment] * * * was blurring of vision and the condition was an error of refraction.” Apparently the court examined the records en camera because it commented: “Let the record further show the Court is further excluding that record because it does not indicate whether that is a permanent condition or temporary or the circumstances of the examination and it would be of no probative value in this case.” Subsequently during the discussion appellant stated that the “medical privilege” was personal to Mr. Pruitt and that the State was not entitled to raise it for him. The court commented: “I’ll raise it for Mr. Pruitt,” and then stated that “Even if Mr. Pruitt were here, the Court is holding that the proffered evidence is not relevant to the issue involved in this case. It is not relevant to any impeachment of the witness on anything except a collateral matter; that it makes no difference whether he went to the Atman Clinic in the afternoon [Mr. Pruitt said it was about 11:00 o’clock in the morning] of a day in which he was robbed at 11:00 o’clock at night.”

Appellant now admits in his brief that he “does not challenge the ruling of the Trial Court that any evidence in contradiction of Mr. Pruitt’s testimony concerning his activities during those morning hours would be collateral to the issues of the case and thus inadmissible.” His point is directed solely to the contention that the court erred in refusing to admit the medical records into evidence “on the issue of relevancy.” He makes no reference in his point to the fact that the court also ruled that the medical records were subject to the physician-patient privilege. We note that appellant did not present the records to the court until after Mr. Pruitt had been excused as a witness and was no longer present.

Appellant argues that Richard Pruitt was the “sole identifying” witness, that the offered medical records would show that he had “twice been treated by the clinic for eye conditions,” and the fact that he had had “medical problems relating to his ability to see is relevant to the issue of credibility of [Mr. Pruitt’s] identification of [appellant] as the assailant.”

The State contends that the introduction of the medical records to show that Mr. Pruitt received treatment in January and February 1974 for “eye conditions” would have been impeachment on a collateral issue. We do not agree. Mr. Pruitt did not deny that he received the treatment, but he did testify, in effect, that his eyesight was good. The impeachment, if any, was of this testimony, and that would not have been a collateral issue because his ability to identify appellant by sight was one of the principal issues. But, prior to the offer of the medical records he was not asked the necessary warning question of whether he had received treatment at the Atman Medical Health Center. Therefore, the records could have been admissible only on the basis that they constituted substantive proof of an impairment of eyesight.

As previously noted, the medical records are not before us, and we do not know what they contain other than as indicated by the statements by appellant’s counsel and the court as above set forth. From these statements there is no indication that the treatments, one of which was over three months and the other over two months prior to the robbery, pertained to a permanent condition of impaired ability to see. In fact, it appears that the “blurring” resulted from an “error of refraction,” which would indicate something was wrong with his glasses, and for all we know from the record, the other treatment may have been to remove a foreign object from his eye. Assuming the records were otherwise admissible, there was no showing that they tended to establish a condition which would have impaired Mr. Pruitt’s ability to identify appellant at the time of the robbery.

The burden was on appellant to establish that the medical records were admissible in evidence, and he also has the burden in this court to establish error on the part of the trial court. Aside from the issue of the physician-patient privilege, the record before us does not permit a finding that appellant did either.

Appellant’s remaining point asserts prejudicial error in oral argument.

The transcript contains the opening argument by the State to the jury. It then shows the following: “At the conclusion of the opening argument on behalf of the State, Mr. Crouppen [appellant’s counsel] made his closing argument to the jury on behalf of the defendant. Mr. Crouppen’s argument has been deleted from this transcript of the record at his request.” There then follows the closing argument on behalf of the State, and the opening statement is as follows: “Mr. White: [Assistant Circuit Attorney] I’ll tell you one thing, ladies and gentlemen. I’d rather have Richard Pruitt walk down a dark alley with me than Randolph Vance.” Appellant’s general objection (“Object to that, Your Honor”) was overruled.

This statement, standing alone and taken out of context, might be considered to have exceeded permissible limits. But, it is reasonably apparent that it was made in response to something that was said in argument by appellant. In that event, even if the statement was otherwise improper it was invited error about which appellant is not entitled to complain. State v. Granberry, 484 S.W.2d 295 (Mo. banc 1972). The trial court has considerable discretion in its rulings pertaining to retaliatory arguments. State v. Smith, 431 S.W.2d 74 (Mo.1968). We do not know what appellant said in his argument, which apparently prompted the remark of the prosecutor, because appellant directed that the transcript before us not contain his argument, and for this reason we cannot conclude that there was an abuse of that discretion.

An additional reason exists why we cannot find prejudical error. Appellant now asserts that the remark “was a comment on the character of the accused inferring that the prosecutor knew more about the defendant’s guilt than the evidence might show.” As previously noted, appellant’s objection was general and no reason was stated. Unless the erroneous feature was perfectly obvious, which it was not in this case, such an objection was insufficient. State v. Lang, 515 S.W.2d 507 (Mo.1974). Also, the assignment in the motion for new trial was limited to the assertion that the court “committed error in refusing to sustain defendant’s objection.” Therefore, the reason now asserted was never presented to the trial court, and on appeal the ground of objection is normally limited to that stated at trial. State v. Johnson, 483 S.W.2d 65 (Mo.1972).

The judgment is affirmed.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.


author: SMITH, Chief Judge.

text:
    Wilbur HUMMELL, Plaintiff-Appellant, v. Donald L. BUTTON, Defendant-Respondent.
    No. 37166.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Aug. 31, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.
    Shaw, Howlett & Schwartz, Clayton, for plaintiff-appellant.
    Robert F. Ritter, St. Louis, for defendant-respondent.
   SMITH, Chief Judge.

Plaintiff appeals from an order sustaining defendant’s motion to dismiss on the basis that plaintiff’s suit is barred by limitations. We affirm.

The automobile accident giving rise to the litigation occurred on July 7,1969. Suit was filed on May 30, 1973, against Donald L. Dutton. Service was attempted on “Donald L. Dutton” on four occasions through February 28, 1975. All were unsuccessful. On April 9, 1975, plaintiff amended his petition changing defendant’s name from “Donald E. Dutton” to “Donald E. Button.” Donald L. Button was served on April 23, 1975.

We find this case to fall squarely within the cases of Western Casualty and Surety Co. v. Lamping, 507 S.W.2d 38 (Mo.App. 1974); Elrod v. Lafayette Elevator Co., 379 S.W.2d 852 (Mo.App.1974); Bruun v. Katz Drug Co. Inc., 359 Mo. 334, 221 S.W.2d 717 (1949); Daiprai v. Moberly Fuel & Transfer Co., 359 Mo. 789, 223 S.W.2d 474 (1949).

We do not find this a mere misnomer case as plaintiff contends. Defendant was never served until after the statute of limitations had run on July 7, 1974. This is not a ease where the correct defendant is timely served under the wrong name and subsequent amendment is made. While plaintiff may have intended to sue Button as the driver of the car, the petition and summons directed to Dutton does not properly distinguish the legal entity plaintiff intended to sue sufficiently to put Button on notice of the fact of suit. The subsequent amendment, therefore, was not the mere correction of a misnomer but was the introduction of a new defendant to the suit. In that situation the rule stated in Bruun v. Katz Drug Co. Inc., supra, is applicable:

“Where a plaintiff files an amended petition bringing into the case new defendants, and if between the time of the commencement of an action and the time when new defendants are brought into the ease the period of limitation prescribed by law for such an action has expired, the new parties may plead the statute as a bar of their liability, although the defense may not be available to the original defendants.” (l.c. 718).

The judgment is affirmed.

NORWIN D. HOUSER and ALDEN A. STOCKARD, Special Judges, concur.

      . In Maddux v. Gardner, 239 Mo.App. 289, 192 S.W.2d 14 (1945), relied on by plaintiff, the proper name of the train engineer was substituted for “John Doe” after the Statute of Limitations had run. The petition, however, made clear the legal entity intended to be sued and that “John Doe” was a fictitious name for a person whose name was unknown.


author: RENDLEN, JUDGE.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James Lee MORROW, Defendant-Appellant.
    No. 36669.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 7, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.
    Application to Transfer Denied Jan. 10,1977.

      Robert A. Hampe, St. Louis, for defendant-appellant.

      John C. Danforth, Atty. Gen., Preston Dean, Timothy J. Verhagen, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Neis C. Moss, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   RENDLEN, JUDGE.

Defendant James Lee Morrow appeals his conviction of first degree robbery by means of a dangerous and deadly weapon, § 560.-135 RSMo. 1969, Y.A.M.S. Having a prior conviction of burglary second degree and stealing, Morrow was sentenced to thirty-five years imprisonment, § 556.280 RSMo. 1969, V.A.M.S.

On September 30, 1973, Paul Pittman, attendant at a St. Louis automobile service station, was robbed at gunpoint of his wallet and eash-on-hand at the station. Curiously, he received an envelope in the mail, sans return address, containing his stolen wallet, in turn containing receipts bearing defendant’s name and address. These were delivered to the police resulting in defendant’s prompt arrest and later identification by Pittman at a lineup. On March 19,1974, Pittman again identified defendant at a preliminary hearing, attended by two unofficial stenographers, Roseann Montefelice and JoAnn Stowers.

Pittman, the only identifying witness, died in August 1974 prior to trial; however, his preliminary hearing testimony was substantively admitted at trial when witnesses Montefelice and Stowers were permitted to read from their transcribed notes of the preliminary hearing.

Points I and II of defendant’s brief fail to comply with Civil Rule 84.04, V.A.M.R., made applicable to criminal appeals by Criminal Rule 28.18, Y.A.M.R., in that they do not “isolate and formulate the precise issue[s] to be reviewed . . .,” State v. Murphy, 508 S.W.2d 269, 276[9] (Mo.App.1974); nor do they tell us wherein and why the rulings sought to be reviewed are claimed to be erroneous. Rule 84.04(d). These functions should not be relegated to the written argument. State v. Velas, 537 S.W.2d 881, 883[3] (Mo.App.1976); State v. Dennison, 428 S.W.2d 573, 579[8] (Mo.1968). Defendant claims the entire testimony of Montefelice and Stowers was inadmissible as hearsay. Though these points lack specificity, we have examined the related argument section and find it goes not to the matter of hearsay as suggested by the points but deals with questions of “best evidence” and “past recollection recorded” and whether the witnesses at trial could read from their transcribed notes of the preliminary hearing or should they be required to testify from memory or independent recollection? These pose issues different from those suggested in the points and will not be reviewed. State v. Schulten, 529 S.W.2d 432, 434[4] (Mo.App.1975); Rule 84.04(e). Conversely, issues developed for the first time in the argument section different from those in the points relied on preserve nothing on appeal. Blond v. Overesch, 527 S.W.2d 663, 668[5] (Mo.App.1975); Scott v. Home Mutual Telephone Co., 510 S.W.2d 793, 796[5] (Mo.App.1974).

Point III repeats the inadequately posited hearsay contention contained in Points I and II as to Montefelice’s and Stowers’ testimony but adds a general allegation that such testimony “was so prejudicial towards the defendant as to require its omission.” This is a bald assertion of error, a mere conclusion which tells nothing of wherein or why the evidence was prejudi-eial or how the action of the trial court constituted error. State v. Starkey, 536 S.W.2d 858, 865[7] (Mo.App.1976); Griffith v. State, 504 S.W.2d 324, 327[3] (Mo.App. 1974). Defendant has not isolated or defined the issue nor shown with specificity those portions of the witnesses’ testimony deemed prejudicial and in what manner he was prejudiced. See State v. Holland, 530 S.W.2d 730, 735[14] (Mo.App.1975). All adverse testimony may be considered prejudicial in the sense it harms the opposite party’s cause but this does not assist us in determining the issue presented for review. “We have no duty to seine the argument portion of appellant’s brief or the transcript on appeal to ascertain the whereins and whys of claimed errors . . . ” Griffith v. State, supra at 327. Further, appellant’s argument supporting Point III is subject to the criticism of Cady v. Kansas City Southern Railway Co., 512 S.W.2d 882, 886[9] (Mo.App.1974), that it contains only “cursory, unsupported, disjointed legal conclusions, devoid of any logical suasion . [and is] completely, unacceptable under either the letter or intent of the appellate rules.”

Defendant’s Point IV like III is a “bald assertion of error” failing to meet the Rule’s requirement and the accompanying argument is unrelated, going instead to Point V. Points I through IV preserve nothing for appellate review. State v. Ball, 527 S.W.2d 414, 415[1] (Mo.App.1975); State v. Brown, 535 S.W.2d 606 (Mo.App. 1976).

For his Point V, defendant contends the trial court erred by allowing witnesses present at the preliminary hearing to testify that Paul Pittman identified defendant by pointing at him. At that hearing Pittman, when describing his assailant, was asked:

Q. “Do you see that person [the robber] in court today?”
A. “Yes.”
Q. “Point him out please.”
A. “Right there. (Indicating)”

Four witnesses testified to the fact of Pittman’s identification of defendant at the preliminary hearing. Ms. Montefelice was asked about her notes and explained she used the phrase “indicating” to describe Pittman’s action following his verbal answer, “Right there.” She remembered Pittman pointed at a defendant present at the preliminary hearing but could not identify Morrow as that defendant; however, she testified her notes were from preliminary hearing “number 31, James L. Morrow, March 19, 1974.” Ms. Stowers, the other unofficial stenographer, testifying to much the same effect, corroborated that Pittman pointed toward the place where the defendant (who she could not confirm was this James Morrow) and defense counsel at the preliminary hearing were seated. Witnesses Darville Jefferson, owner of the service station, and Officer Kleinsorge were present at the preliminary hearing and each testified Pittman identified his assailant by pointing toward defendant James Lee Morrow.

Defendant, citing State v. Lynn, 184 S.W.2d 760 (Mo.App.1945), contends such testimony constituted inadmissible conclusions. In Lynn the defendant, charged with felonious assault of one Lark Chandler, fired his pistol striking the left front fender of the car in which Chandler was seated. Defendant testified he intended to shoot the left front tire, not Chandler, but the trial court refused defendant’s witnesses’ testimony that defendant had shot at the “left front tire or wheel” of Chandler’s automobile.

This ruling was affirmed on appeal because “defendant’s intent was an issue to be determined by the jury from all the relevant facts and circumstances in the case not to be shown by the mere opinion or conclusion of any witness.” Lynn, supra at 765. There defendant’s intent was a specific issue to be proved. The jury convicted Lynn of common assault, which required a finding that his intent was not to shoot at Chandler. Had the jury found he fired at Chandler, Lynn’s offense “would have risen to the grade of assault with intent to kill . . . .” State v. Lynn, supra at 767[14-17]. In effect, Lynn held that to permit a witness to state what defendant intended, when intention was a central issue, “would have been an invasion of the special province of the jury.” Lynn, supra at 765[6].

Defendant here asserts that “[sjinee there were a number of people located in the courtroom at the time of the hearing and at least the defense attorney would have been sitting very close to the defendant and since these witnesses could only have seen Mr. Pittman raise his hand in a certain direction, there is no way these witnesses could testify as to whom Mr. Pittman pointed.”

But unlike Lynn, testimony of the witnesses in the ease at bar did not go to Pittman’s intent. The matter to be shown was whether Pittman communicated an identification to those present at the preliminary hearing. These witnesses were competent to describe Pittman’s actions, that he “indicated” or “pointed” and to relate the general direction in which he pointed and toward whom or who was seated in the direction of his gesture.

Generally, “a witness must state facts, from which the jurors are to form their opinion.” Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601, 606[8] (1946); Adams v. Carlo, 84 S.W.2d 682, 684[2, 3] (Mo.App.1935). When a witness has personally observed events, he may testify to his “matter of fact” comprehension of what he has seen in a descriptive manner which is actually a conclusion, opinion or inference, if the inference is common and accords with the ordinary experiences of everyday life. Brawley v. Esterly, 267 S.W.2d 655, 662[9] (Mo.1954); see Whitney v. Central Paper Stock Co., 446 S.W.2d 415, 419[6] (Mo.App.1969); Pedigo v. Roseberry, 340 Mo. 724, 102 S.W.2d 600, 606[4-7] (1937); Adams v. Carlo, supra at 684[3]. We hold the trial court did not err admitting this testimony describing Pittman’s actions when pointing out defendant. Testimony that he “pointed” was a “ ‘matter of fact’ comprehension” of what the witnesses had personally observed. It was for the jury to believe or disbelieve the testimony and decide if defendant had been identified as the robber. Testimony that an identifying witness pointed at defendant is equally admissible as the attorney’s testimony that a juror had given him a “dirty look” when challenged on voir dire in Buchanan v. Scott County Milling Co., 157 S.W.2d 810, 812[1] (Mo.App.1941). The point is denied.

In his Point VI defendant contends the trial court erred in allowing the State to establish witness Pittman’s death by a coroner’s report because a death certificate was available and the coroner’s report was “prejudicial” to defendant. We disagree. Death need not be proved by a death certificate, thus availability or nonavailability of the certificate is not controlling. Section 193.170 RSMo. 1969, V.A.M.S., makes the certificate of death prima facie evidence of the facts stated therein, but it is given no greater force than any other prima facie evidence of that fact. Turner v. National Benev. Soc., 224 Mo.App. 463, 28 S.W.2d 125, 126[5, 6] (1930); Accord, Pfingsten v. Franklin Life Ins. Co., 330 S.W.2d 806, 815[6] (Mo.1959). Death, like any other fact, may be shown by many types of circumstantial or direct evidence. State v. Jackson, 495 S.W.2d 80, 87[8] (Mo.App. 1973); Prudential Ins. Co. of America v. Sutton, 368 S.W.2d 522, 527[6] (Mo.App. 1963). The coroner’s report was relevant to establish the fact of Pittman’s death, an indispensible prerequisite for offering the record of his testimony from the preliminary hearing. Defendant concedes that the substance of the testimony from the employee of the coroner’s office “was that Mr. Pittman was dead.” Such relevant evidence is admissible unless there is a particularly overriding ground for its exclusion. State v. Medley, 360 Mo. 1032, 232 S.W.2d 519, 524[4] (1950); State v. Poacher, 303 S.W.2d 197, 198[2] (Mo.App.1957). Appellant cites Conley v. Kaney, 250 S.W.2d 850, 353[3, 4] (Mo.1952), to the effect that if evidence pertaining to collateral matters brings into the case a new and controversial matter which “would result in confusion of issues, constitute unfair surprise, or cause prejudice wholly disproportionate to the value and usefulness of the offered evidence, it should be excluded.” However, merely because it may tend to prejudice the jury against a party does not necessarily render otherwise admissible evidence inadmissible. State v. Mullen, 528 S.W.2d 517, 523[15] (Mo.App.1975); State v. Tillett, 233 5.W.2d 690, 691[9] (Mo.1950). Assuming ar-guendo that the use of the coroner’s report was prejudicial to defendant, we cannot say that its prejudicial effect was wholly disproportionate to its usefulness. Conley v. Kaney, supra at 353; Jones v. Terminal R. R. Ass’n of St. Louis, 242 S.W.2d 473, 477[7] (Mo.1951). Appellant argues a coroner’s report is usually made only when the circumstances surrounding the death suggest violence, but he does not explain and nothing appears in argument or proof to show how or why defendant would thereby be prejudiced sufficiently to require exclusion of the testimony. As stated by the court in Mulliken v. Presley, 442 S.W.2d 153,158[8] (Mo. App.1969), this was not “so prejudicial that we can say with clear conscious” that its use deprived defendant of a fair trial. Cf., State v. Moore, 435 S.W.2d 8, 11[1] (Mo. banc 1968). The admissibility of potentially prejudicial evidence is within the trial court’s discretion and we find no abuse of that discretion here. State v. Richardson, 515 S.W.2d 557, 560[4] (Mo. banc 1974); State v. McCabe, 512 S.W.2d 442, 443[9] (Mo.App.1974). The point is denied.

Defendant’s Point VII fails to preserve any issue for review. It does not tell us wherein or why the action to be reviewed was erroneous. Rule 84.04(d), V.A.M.R.; State v. Dennison, supra at 579[8].

The judgment of the trial court is affirmed.

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

      . Ms. Montefelice was employed at the Public Defender’s Bureau and Ms. Stowers by the Parole Office. Both were regularly required to record such testimony for their respective offices.

      . Defendant’s Points I and II are as follows: I. The Learned Trial Court erred in denying Defendant’s Motion to Quash Subpoena Duc-es Tecum and in allowing Roseann Montefel-ice to testify, because the testimony constituted hearsay and did not fall under any recognized exception to the hearsay rule.
      II. The Learned Trial Court erred in allowing JoAnn Stowers to testify, because the testimony constituted hearsay and did not fall under any recognized exception to the hearsay rule.

      .There is only one argument section covering Points I and II.

      . Defendant’s Point IV is as follows:
      IV. The Learned Trial Court erred in allowing Roseann Montefelice and JoAnn Stowers to testify, because the testimony was irrelevant and immaterial.

      . Montefelice’s testimony was to the effect that Pittman pointed in the direction of defendant. Stowers stated, “He [Pittman] pointed to the man seated next to the defense counsel.” Jefferson stated, “He [Pittman) pointed in the direction of this gentleman [Morrow] sitting here.” Kleinsorge testified that Pittman “pointed in the direction of defendant.”

      . Defendant’s Point VII is as follows:
      VII. The Learned Trial Court erred in failing to grant Defendant’s Motion for a Mistrial after a State’s witness had testified to an out-of-court identification.