author: MAUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. John W. HICKS, Defendant-Appellant.
    No. 11048.
    Missouri Court of Appeals, Southern District, Div. II.
    Nov. 26, 1979.
    Motion for Rehearing and for Transfer Denied Dec. 14, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      John Ashcroft, Atty. Gen., Steven D. Ste-inhilber, Donna Bowles, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
    James A. Miller, Springfield, for defendant-appellant.
   MAUS, Judge.

The defendant was charged with first degree robbery by a deadly and dangerous weapon in taking the automobile of Charles Roberds. On appeal the defendant does not complain of the sufficiency of the evidence. Only a brief summary is required.

On November 12, 1975, the defendant, David Joe Corona and Jerry Tim Corona were confined in the Dallas County jail. Bill Morrow was a deputy sheriff acting as jailor. When Morrow permitted the defendant to leave his cell to make a phone call, the defendant grabbed Morrow’s gun. The defendant was joined by the two Coronas. They then locked Morrow in a cell, took his revolver and automobile and left.

That evening Charles Roberds was City Marshall (also deputy sheriff) on duty patrolling Niangua. At about 8:00 p. m. he observed Morrow’s car with a flat tire. Ro-berds stopped to give assistance. Roberds saw one man sitting in the driver’s seat. When Roberds got out, this man got out and put a gun in Roberds’ stomach. Then two other men got out of the rear seat of the Morrow automobile. One had a shotgun. The other took Roberds’ revolver and pointed it at Roberds’ head. The three took Roberds’ car and left. They were apprehended together the next day. Roberds identified the Coronas as the white men involved, one as the man in the driver’s seat and the other as the man with the shotgun. He was not able to identify the defendant as the black man who took his revolver and pointed it at his head. A preliminary hearing was held. The defendant was then represented by the Public Defender. Morrow was a witness for the state. His testimony consisted of relating the events of the escape and the recovery of his car in Nian-gua.

The case went to Greene County on a change of venue. It was set for trial for the week of March 20, 1978. It was continued and reset for the week of May 1, 1978, when it was tried. At the trial, upon the state’s representation that Morrow was not available as a witness, and over the objection of the defendant, the state read a transcript of Morrow’s former testimony to the jury. It is the admission of this transcript as a denial of his right of confrontation guaranteed by the Sixth Amendment of the Constitution of the United States and Art. I, § 18(a) Constitution of Missouri, that forms the basis of three of defendant’s points on appeal.

In support of these points the defendant incorporates arguments that have been presented to appellate courts time and time again: The use of the transcript deprives the defendant of the right to have the jury observe the demeanor of the witness and the difference in the nature of cross-examination at a preliminary hearing as distinguished from a trial. Never have these arguments been more eloquently expressed than in the defendant’s brief set forth in State v. McO’Blenis, 24 Mo. 402, 69 Am.Dec. 435 (1857). Yet from that case to State v. Phillips, 511 S.W.2d 841 (Mo.1974) the appellate courts of Missouri have held that, when a witness is “unavailable” in the constitutional sense, a transcript of his testimony at the preliminary hearing is admissible at the trial. The answers to these contentions have been clearly expressed. The advantage, if indeed it be such, of having the jury observe the demeanor of the witness is not inflexibly established as a constitutionally established right but is “an incidental advantage which must sometimes give way to considerations of public policy and the necessities of the case”. Phillips v. Wyrick, 558 F.2d 489, 495 (8th Cir. 1977), cert. den. 434 U.S. 1088, 98 S.Ct. 1283, 55 L.Ed.2d 793 (1978). As to the possible difference in cross-examination: “We believe that the test is the opportunity for full and complete cross-examination rather than the use which is made of that opportunity.” United States v. Allen, 409 F.2d 611, 613 (10th Cir. 1969). Also, State v. Logan, 344 Mo. 351, 126 S.W.2d 256 (1939).

In 1965 it was determined that the Sixth Amendment to the Constitution of the United States “is ‘to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.’ ” Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923, 928 (1965). While the confrontation clauses of the state and federal constitutions are similar, under that decision the admission of former testimony must also meet the standards of the definitive decisions of the federal courts interpreting and applying the Sixth Amendment. The Sixth Amendment is not a codification of the common law rule pertaining to hearsay evidence, however, the two, even though not correlated, are interrelated. The Sixth Amendment is considered in the determination of the admissibility of out-of-court declarations which are exceptions to the hearsay rule because of their “indicia of reliability.” Whether former testimony is an exception to or outside the hearsay rule is a debated point. If it is hearsay, most of the cases admitting former testimony have done so without separately considering its “indicia of reliability.” Perhaps this has been premised upon the proposition that former testimony by reason of having been given in a judicial proceeding when the witness, under oath, is confronting the accused and is subject to cross-examination is thereby sufficiently reliable.

The history of the admissibility of former testimony before the Supreme Court of the United States has been appropriately summarized:

“This Court long ago held that admitting the prior testimony of an unavailable witness does not violate the Confrontation Clause. Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895). That case involved testimony given at the defendant’s first trial by a witness who had died by the time of the second trial, but we do not find the instant preliminary hearing significantly different from an actual trial to warrant distinguishing the two cases for purposes of the Confrontation Clause. Indeed, we indicated as much in Pointer v. Texas, 380 U.S. 400, 407, 85 S.Ct. 1065, 1069, [13 L.Ed.2d 923] (1965), where we noted that ‘[t]he case before us would be quite a different one had Phillips’ statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.’ And in Barber v. Page, 390 U.S. 719, 725-726, 88 S.Ct. 1318, 1322, [20 L.Ed.2d 255] (1968), although noting that the preliminary hearing is ordinarily a less searching exploration into the merits of a case than a trial, we recognized that ‘there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demand of the confrontation clause where the witness is shown to be actually unavailable . . . California v. Green, 399 U.S. 149, 165-166, 90 S.Ct. 1930, 1939, 26 L.Ed.2d 489, 501 (1970).

The admissibility of former testimony at a preliminary hearing was seemingly settled in California v. Green, supra, in which the court was confronted with a witness who was in court but whose loss of memory was tantamount to unavailability. In holding the witness’s former testimony to be admissible the court said:

“We also think that Porter’s preliminary hearing testimony was admissible as far as the Constitution is concerned wholly apart from the question of whether respondent had an effective opportunity for confrontation at the subsequent trial. For Porter’s statement at the preliminary hearing had already been given under circumstances closely approximating those that surround the typical trial. Porter was under oath; respondent was represented by counsel — the same counsel in fact who later represented him at the trial; respondent had every opportunity to cross-examine Porter as to his statement; and the proceedings were conducted before a judicial tribunal, equipped to provide a judicial record of the hearings. Under these circumstances, Porter’s statement would, we think, have been admissible at trial even in Porter’s absence if Porter had been actually unavailable, despite good-faith efforts of the State to produce him.” California v. Green, supra, 399 U.S. at 165, 90 S.Ct. at 1938-1939, 26 L.Ed.2d at 501.

While not dealing directly with former testimony because of its subsequent interrelation, Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), should next be noted. In that case a Georgia statute declared: “ ‘After the fact of conspiracy shall be proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.’ ” Dutton v. Evans, supra, 400 U.S. at 78, 91 S.Ct. at 214, 27 L.Ed.2d at 220-221. In holding an out-of-court declaration of a conspirator as related by a third party to be admissible the court reviewed the impact of the statement and circumstances under which the declaration was made. The circumstances were found to provide sufficient indicia of reliability to cause the declaration to be admissible even though there was no confrontation with the declarant. In so holding the court said:

“The decisions of this Court make it clear that the mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that ‘the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement.’ California v. Green, 399 U.S. at 161, 90 S.Ct. 1930, [26 L.Ed.2d at 499], Evans exercised, and exercised effectively, his right to confrontation on the factual question whether Shaw had actually heard Williams make the' statement Shaw related. And the possibility that'cross-examination of Williams could conceivably have shown the jury that the statement, though made, might have been unreliable . was wholly unreal.” Dutton v. Evans, supra, 400 U.S. at 89, 91 S.Ct. at 220, 27 L.Ed.2d at 227.

While not cited by counsel the subsequent case Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972) must be considered. Stubbs’ 1954 conviction for the murder of Mrs. Holm was overturned on the basis of an apparent rule of per se ineffective assistance of counsel because of the shortness of time between the time of appointment and the trial. In his 1964 retrial, again resulting in conviction, the state introduced the 1954 testimony of the victim’s husband, an eyewitness. In resisting a sentence for a 1966 offense as a second offender (the 1964 conviction being alleged as the basis therefor), the defendant asserted the invalidity of that 1964 conviction because of the admission of the transcript of the former testimony. In upholding the admission of that transcript, the Supreme Court held that the fact the husband was a permanent resident of Sweden, although a citizen of the United States, sufficiently established his unavailability. The court then stated: “Before it can be said that Stubbs’ constitutional right to confront witnesses was not infringed, however, the adequacy of Holm’s examination at the first trial must be taken into consideration.” Mancusi v. Stubbs, supra, 408 U.S. at 213, 92 S.Ct. at 2313, 33 L.Ed.2d at 301. The court further noted “the Court’s concern has been to insure that there ‘are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant,’ Dutton v. Evans, supra, at 89, 91 S.Ct. at 220, [27 L.Ed.2d at 227], and to ‘afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement,’ California v. Green, supra, 399 U.S. at 161, 90 S.Ct. 1936, [26 L.Ed.2d at 498].” Mancusi v. Stubbs, supra, 408 U.S. at 213, 92 S.Ct. at 2313, 33 L.Ed.2d at 301. The court then reviewed Holm’s examination and found “counsel at the retrial did not in his proffer show any new and significantly material line of cross-examination that was not at least touched upon in the first trial.” Mancusi v. Stubbs, supra, 408 U.S. at 215, 92 S.Ct. at 2314, 33 L.Ed.2d at 302. The defendant advanced the proposition that at the time of the shootings the kidnaping had terminated and the gun accidently discharged and he was not guilty of felony murder. It was then held that failure to cross-examine Holm concerning whether or not Stubbs had become a guest before he shot Holm and killed his wife was not prejudicial to any issue the jury was authorized to consider under the instructions on premeditated murder or murder during robbery. The court concluded by saying: “Since there was an adequate opportunity to cross-examine Holm at the first trial, and counsel for Stubbs availed himself of that opportunity, the transcript of Holm’s testimony in the first trial bore sufficient ‘indi-cia of reliability’ and afforded ‘ “the trier of fact a satisfactory basis for evaluating the truth of the prior statement,” ’ Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, [27 L.Ed.2d 213, 227].” Mancusi v. Stubbs, supra, 408 U.S. at 216, 92 S.Ct. at 2314-2315, 33 L.Ed.2d at 303.

The import of Mancusi is not clear. In its first comment the court referred to the adequacy of the examination of Holm, not just his cross-examination. In its closing comment the court refers to the “adequate opportunity to cross-examine”. It has been cited for the following propositions. “Basically, the confrontation clause is not violated by the admission at a subsequent hearing of the prior testimony of the unavailable witness where at the prior hearing the opportunity for adequate cross-examination was afforded him.” State v. Ouimette, 110 R.I. 747, 298 A.2d 124, 131 (1972), which involved a bail hearing. “If a witness is unavailable to testify, it is not a denial of the right to confrontation to allow prior recorded testimony of a witness where the defendant has had an adequate opportunity to cross-examine the witness.” Sheehan v. State, 65 Wis.2d 757, 223 N.W.2d 600, 604 (1974), which involved a deposition. “The key to admissibility of former testimony of a witness is the unavailability of that witness at the subsequent trial.” State v. Jacob, 222 N.W.2d 586, 589-590 (N.D.1974), which involved a preliminary hearing and in which the court observed that if cross-examination was not extensive, that was counsel’s choice. “Where there is an adequate opportunity to cross-examine the witness at the prior proceeding and especially if counsel for the defendant availed himself of that opportunity, the prior testimony bears sufficient ‘indicia of reliability’ and affords the trier of facts at the later proceeding a satisfactory basis for evaluating the truth of the prior testimony.” People v. Simmons, 36 N.Y.2d 126, 365 N.Y.S.2d 812, 815, 325 N.E.2d 139, 142 (1975), involving a preliminary hearing at which attempted cross-examination was unduly restricted. “Once this determination is made, the law is clear that prior testimony may be admitted when given — as here — in court, under oath, subject to cross-examination and on the very issue (identification) for which it was offered at trial.” United States v. Bell, 500 F.2d 1287, 1290 (2nd Cir. 1974), involving former testimony at a suppression hearing.

In Mancusi the court cited with approval Dutton which approved the admission of a declaration concerning which there was never confrontation and never an opportunity for cross-examination. Mancusi did not overrule that case and cited with approval California v. Green, supra, which approved the admission of testimony at a preliminary hearing and emphasized the “opportunity for cross-examination.” If Man-cusi is to be considered restrictive upon the admission of testimony at a preliminary hearing, it must be only if the defendant demonstrates prejudice from an inadequate cross-examination. Since that question is directly related to the competency of counsel, ordinarily such former testimony should not be excluded short of a demonstration of facts which would constitute, in the constitutional sense, inadequate assistance of counsel. To hold it more restrictive would be a step toward the danger so clearly expressed by Mr. Justice Cardozo: “There is danger that the criminal law will be brought into contempt — that discredit will even touch the great immunities assured by the Fourteenth Amendment — if gossamer possibilities of prejudice to a defendant are to nullify a sentence pronounced by a court of competent jurisdiction in obedience to local law, and set the guilty free.” Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674, 687 (1934).

In this case, at the preliminary hearing Deputy Morrow testified succinctly concerning the escape. Cross-examination consisted of two questions to establish that the escape took place in Dallas County. The defendant asserts the transcript was inadmissible because of the brevity of the cross-examination. The defendant has not demonstrated he has been prejudiced by such brevity. Counsel was in no way restricted in cross-examination. Morrow’s testimony on direct was concise and unequivocal. Counsel familiar with the facts no doubt realized an extensive harangue on cross-examination would accomplish nothing. The best indicia of the reliability of direct testimony is often the brevity of, or even the absence of, cross-examination. To hold otherwise could defeat testimony recognized as accurate by all concerned. In a post Man-cusi case, it has been held that oral proof of former testimony at- a Missouri preliminary hearing may be properly admitted with the court stating: “Once the opportunity to cross-examine has been accorded, the confrontation requirement is fulfilled. . The actual use then made of the opportunity becomes a matter of defense strategy, and deliberate trial tactics do not ordinarily exact constitutional protection.” Phillips v. Wyrick, supra, 558 F.2d 489, 496. The former testimony of Morrow met all enunciated standards.

The defendant next contends the former testimony was inadmissible because it was not taken in compliance with Art. I, § 18(b) Mo.Const. (as amended 1972) and V.A.M.R. Crim. Rules 25.43 and 25.44. These provisions do provide a means whereby the state may by deposition, under the prescribed restrictions, present evidence which might otherwise be unavailable. They do not bar former testimony otherwise admissible.

Defendant also alleges the state did not make a good faith effort to produce Morrow at the trial. The hearing on that issue developed the following facts. The trial was initially scheduled for the week of March 20th and a subpoena was issued. At an undisclosed time Morrow had quit as deputy sheriff of Dallas County and moved from the community. He could not be found in Dallas County and had no family in the community. The sheriff of Dallas County was unable to locate Morrow through the forwarding address in Kansas City that Morrow left. The efforts of the Kansas City police department were fruitless. Morrow’s stepson was in detention in Marshall and no address was available through that institution. A lead that Morrow was working in Ponca City, Oklahoma, was pursued with no results. The sheriff of Webster County also attempted to locate Morrow. His efforts included seeking information through a law enforcement network. This produced the addresses of a Bill Morrow near Kansas City, but he was not the witness. The sheriff also sent messages and made phone calls to various law enforcement agencies in Kansas City, Oklahoma and Kansas. The trial was continued to the week of May 1st and additional subpoenas were issued. The sheriffs of both counties stated they made no subsequent efforts to locate Morrow as they had done all they could do.

The prerequisite for the admission of the transcript is that the state made a “good faith” effort to obtain Morrow’s presence at the trial. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). In speaking of reports a witness moved somewhere in New York or sought employment with a railroad in the midwest, it has been said: “A good faith search does not mean that every lead, no matter how nebulous, must be tracked to the ends of the earth, figuratively speaking.” Poe v. Turner, 490 F.2d 329, 331 (10th Cir. 1974). In this case every lead was pursued, even into Kansas and Oklahoma. Having exhausted all leads in March, the sheriffs were not required to retrace their steps in April. This does not compare to a situation where no effort was made to serve a subpoena until three or four days before trial, State v. Deyo, 358 S.W.2d 816 (Mo.1962) or to reliance upon the assurance of an out-of-state witness’s mother that he would appear, State v. Kain, 330 S.W.2d 842 (Mo.1960) nor to reliance on a report a witness left the state and a failure to pursue a last known address, State v. Gallina, 352 Mo. 557, 178 S.W.2d 433 (1944). A good faith effort was made to produce Morrow. Compare State v. Harp, 320 Mo. 1, 6 S.W.2d 562 (banc 1928); State v. Williamson, 343 Mo. 732, 123 S.W.2d 42 (1938).

Defendant’s next point is alleged error in the admission of the testimony of Morrow and former sheriff Cox concerning the separate crime of escape. Such evidence is not barred if it has some legitimate tendency to directly establish the accused’s guilt of the crime with which he is charged. This may be by such evidence tending to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial. State v. Wing, 455 S.W.2d 457 (Mo.1970), cert. den. 400 U.S. 1009, 91 S.Ct. 566, 27 L.Ed.2d 621 (1971). In this case evidence of the escape was necessary as part of the state’s case to prove the identity of the defendant as one of the three who at gun point took the Webster County officer’s car. It would also tend to establish motive. The testimony did not embrace details of an unrelated crime as condemned in State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (banc 1954). Here the crimes were related and such details as were shown were not presented in an inflammatory manner. Compare State v. Mitchell, 491 S.W.2d 292 (Mo. banc 1973). While the testimony of Morrow and Cox to some extent overlapped, the state was not necessarily confined to one witness to prove the defendant escaped with the Coronas. The trial court was required to consider the possible prejudicial effect of this testimony. State v. Cheesebrew, 575 S.W.2d 218 (Mo.App.1978). The trial court did not err in exercising its discretion in admitting this testimony.

Defendant’s last point is that the trial court erred in not giving a tendered instruction on the issue of whether or not the defendant acted under compulsion. Defendant testified he had no gun and that the Coronas gave the instructions at the time of the robbery. When asked if he tried to stop them, he replied, “Well, they had guns. I didn’t.” They didn’t make him get from the front seat of the first car to the back. He unequivocally testified he could have gotten away from them any time he wanted to do so. This does not establish the defense of compulsion. State v. Green, 470 S.W.2d 565 (Mo. banc 1971); State v. St Clair, 262 S.W.2d 25, 40 A.L.R.2d 903 (Mo.1953). The trial court did not err in refusing an instruction not supported by the evidence. State v. Brown, 561 S.W.2d 388 (Mo.App.1977). The judgment is affirmed.

All concur.

      . State v. Fleming, 451 S.W.2d 119 (Mo.1970); State v. Barnes, 274 Mo. 625, 204 S.W. 267 (1918); State v. Moore, 156 Mo. 204, 56 S.W. 883 (1900); State v. Logan, 344 Mo. 351, 126 S.W.2d 256 (1939).

      . “While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law.” California v. Green, 399 U.S. 149, 155, 90 S.Ct. 1930, 1933-1934, 26 L.Ed.2d 489, 495 (1970).

      . Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970).

      . McCormick on Evidence 2nd Ed. Handbook, § 254, pp. 614-616.

      . A witness who refuses to testify under the privilege of the Fifth Amendment is unavailable. State v. Phillips, 511 S.W.2d 841 (Mo.1974); Phillips v. Wyrick, 558 F.2d 489 (8th Cir. 1977); cert. den. 434 U.S. 1088, 98 S.Ct. 1283, 55 L.Ed.2d 793 (1978); State v. Brooks, 551 S.W.2d 634 (Mo.App.1977).

      . In United States v. West, 574 F.2d 1131 (4th Cir. 1977) the court found great indicia of reliability in the unusual circumstance surrounding the grand jury testimony of a slain informant and found that former testimony was qualified for admission. A similar problem was considered in United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976).

        . In United States ex rel. Stubbs v. Mancusi, 442 F.2d 561 (2nd Cir. 1971) the Court of Appeals determined the former testimony was inadmissible because of an insufficient effort to return the witness and considered the adequacy of cross-examination in deciding it could not declare its reception to be harmless error.

      . Any such rule was disapproved in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

      .In State v. Kreck, 12 Wash.App. 748, 532 P.2d 285 (1975) the court found there had not been sufficient effort to secure the appearance of a witness who had moved to Germany and questioned this conclusion since the amendment of 28 U.S.C.A. § 1783; in State v. Kreck, 86 Wash.2d 112, 542 P.2d 782 (Wash. banc 1975) this decision was reversed and unavailability was declared to be a prerequisite for the admission of a laboratory report under the Uniform Business Records as Evidence Act.

      . The statute pertaining to preliminary hearings in cases of homicide requires a witness to sign the transcript of his testimony and in absence of such a signature it is inadmissible in a subsequent trial even though the witness is unavailable. State v. Luttrell, 366 S.W.2d 453 (Mo.1963).

      . In State v. Brookins, 478 S.W.2d 372 (Mo.1972) in dictum the court questions that the state could use the deposition of a witness taken by the defendant as it was not taken under this constitutional provision. State v. Granberry, 491 S.W.2d 528 (Mo. banc 1973), cited by the present defendant, does not militate against the use of former testimony, but condemns the use of an ex parte statement as substantive evidence, and the court summarized rules for the.use of a deposition taken by the state under this constitutional provision. In State v. Jackson, 495 S.W.2d 80 (Mo.App.1973) also cited by the present defendant, the court did not deal with testimony taken at a preliminary hearing where the defendant was present with counsel but condemned a deposition taken by his counsel without authorization by and the presence of the defendant.

      . In United States v. King, 552 F.2d 833 (9th Cir. 1976), cert. den. 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977) the court while noting the use of former testimony at a preliminary hearing where cross-examination was not restricted approved the use of depositions taken in Japan at the behest of the government under 18 U.S.C.A. § 3503.

      . In Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968) the Court held that merely showing that a witness was a prisoner in another state was, in view of modem procedures to secure the attendance of federal prisoners as witnesses, not a sufficient effort. Merely attempting to subpoena in Missouri a witness who said she was moving to Texas was not a good faith effort. State v. Brookins, supra, n. 11. See Uniform Law to Secure Attendance of Witnesses from Within or Without State in Criminal Proceedings: §§ 491.400 to 491.450, RSMo, V.A.M.S.


source: Caselaw Access Project

author: GREENE, Judge.

license: Public Domain

text:
    Troy Chad HOWARD, a minor, by Troy Howard and Marketta Howard, his wife, next friends; and Troy Howard and Marketta Howard, his wife, individually, Plaintiffs-Respondents, v. Leroy LUNDRY, d/b/a Lundry’s Custom Kitchens and Interior Home Center, Defendant-Appellant.
    No. 11007.
    Missouri Court of Appeals, Southern District, Division Three.
    Nov. 27, 1979.
    Motion for Rehearing or to Transfer to Supreme Court Denied Dec. 19, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      Harold B. Treasure, J. Michael Mowrer, Dalton & Treasure, Kennett, for plaintiffs-respondents.
    J. Lee Purcell, Glenn E. Easley, Hyde, Purcell, Wilhoit, Edmundson & Merrell, Poplar Bluff, for defendant-appellant.
   GREENE, Judge.

This case is a civil action for damages in which the jury’s verdict, and the trial court’s judgment, were in favor of plaintiff Troy Chad Howard on Count I of the petition in the sum of $50,000, and in favor of plaintiffs Troy Howard and Marketta Howard on Count II of the petition in the sum of $5,000. Defendant appeals. We affirm the judgment of the trial court.

Plaintiff Troy Chad Howard (Chad) is the minor child of Troy and Marketta Howard. Mr. Howard is a home builder in Kennett, Missouri. On March 14, 1977, he went to Lundry’s Custom Kitchens in Poplar Bluff, Missouri, to buy some cabinet tops and to talk to Leroy Lundry, the owner of the cabinet shop, about purchasing some custom-made cabinets. Chad, who was 28 months old at the time, accompanied his father. The store contained a showroom where built-in kitchen equipment was displayed. One of the items on display was a Chambers double oven. The oven weighed 175-180 pounds. It was mounted on steel runners and inserted into a wooden cabinet. The oven was not secured in the cabinet. There were holes in the interior of the oven for the express purpose of inserting wood screws through the oven into the cabinet to secure the oven in place, but Lundry had not used them, nor had he secured the oven in place by any other means. There was testimony at the trial that industry-wide practice and custom required that items, such as the oven, be secured in the display cabinet. This practice was for safety reasons.

Troy was talking to Lundry about buying some materials. Chad, who was an active child, had been walking and running around in the store. He was given a soft drink and a candy bar by Mrs. Lundry, who worked in the store. Chad went to the oven and tried to pull it open. The oven fell out, striking Chad on the left side of the head. Lundry and Troy rushed to the child. The oven was on top of Chad. Lundry removed the oven and Troy picked up his son. Chad had a “bad gash” on the left side of his head, part of his hair was pulled out, and he was bleeding from the right ear. His father took him to the emergency room at the Lucy Lee Hospital in Poplar Bluff, where he was given emergency treatment by Dr. Suvan, who was on call at the time. Chad vomited while in the emergency room. He was then taken by ambulance, at the instruction of Dr. Suvan, to the Children’s Hospital in Memphis, Tennessee. Chad had a seizure while on the way to Memphis, vomited again, and his blood pressure went up. He was admitted to the hospital in Memphis and stayed there for 2 days. Chad did not sleep well in the hospital and would “grab” his head.

When Chad was discharged from the hospital, his parents took him home and placed him under the care of their family doctor, Charles Cash. Dr. Cash had delivered Chad. Chad had been seen in Memphis by Dr. James and Dr. Cordell and was examined in Popular Bluff by Dr. Graham a few weeks before trial, at the request of defendant’s attorney.

After the accident, Chad began wetting the bed at night, stuttered a lot, and had difficulty standing. When Mrs. Howard ran the vacuum cleaner, Chad would hold his ears and cry. He was nervous, and complained about his ears and legs. Dr. James diagnosed Chad’s primary injury as a basal skull fracture, which is a fracture of the bone at the base of the skull. X-rays showed soft tissue swelling in the area. He also said the bleeding from the right ear was caused by the trauma from the blow on the head of Chad. Dr. James referred the child back to his local physician, Dr. Cash, so that the progress of the child could be followed.

Dr. Cash testified that, after the accident, the child was nervous, irritable and frightened, and that his reflexes were exaggerated. He saw Chad 4 or 5 times. He saw Chad the day before trial, which was February 22, 1978, over 11 months after the accident. The child still had hyperactive tendon reflexes and ankle jerks at that time. In answer to a hypothetical question, he related the bed wetting, stuttering, nervousness, hyperactive reflexes and leg pains to the skull fracture. Chad’s medical expenses totaled $762. In addition, Chad’s parents made 5 trips to Memphis and incurred expenses of approximately $150, which trips were occasioned by Chad’s injuries and treatment.

Defendant raises 5 points of error on appeal, which are that the trial court erred in 1) overruling defendant’s motions for directed verdict filed at the close of plaintiff’s evidence and at the close of all of the evidence for the reason that plaintiffs did not make a submissible case under the law, 2) giving erroneous verdict directing instructions, 3) admitting opinion evidence from Dr. Cash, 4) failing to grant defendant a new trial on the issue of damages for the reason that the verdicts were grossly excessive, and 5) overruling defendant’s motion for remittitur.

DID PLAINTIFFS MAKE A SUBMISSI-BLE CASE UNDER THE LAW?

Defendant alleges, in his first point, that plaintiffs failed to make a submissible case at trial and that the trial court erred in overruling defendant’s motion for directed verdict at the close of all the evidence. When determining whether or not a plaintiff has made a submissible case, the plaintiff’s evidence is presumed to be true, any of defendant’s evidence to the contrary is disregarded, and the plaintiff is given the benefit of all reasonable and favorable inferences drawn from the evidence. Larrea v. Ozark Water Ski Thrill Show, Inc., 562 S.W.2d 790, 792 (Mo.App.1978).

The general duty owed a business invitee by a property owner is the exercise of reasonable and ordinary care in making his premises safe. Albers v. Gehlert, 409 S.W.2d 682, 684 (Mo.1966). A storekeeper is not an absolute insurer of the safety of his business invitees. The true ground of his liability is his superior knowledge of the dangerous condition and his failure to give a warning of the risk. Bartling v. Firestone Tire & Rubber Co., 275 S.W.2d 618, 622 (Mo.App.1955). Thus, the standard of care, in Missouri, is that “A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they will discover the condition or realize the risk involved therein, and (c) invites or permits them to remain upon the land without exercising reasonable care (i) to make the condition reasonably safe, or (ii) to give a warning adequate to enable them to avoid the harm.” Harbourn v. Katz Drug Company, 318 S.W.2d 226, 228-229 (Mo.1958).

Conceding that Chad was a business invitee, defendant seeks to have this court apply the above standard to the evidence presented by plaintiffs. Defendant ignores, however, the fact that Chad was only 28 months old at the time of the accident. Where children are concerned, the exercise of ordinary care requires the exercise of more vigilance and caution than might be sufficient with respect to an adult. Conduct which might reach the standard of ordinary care with respect to an adult might, in the case of a child, amount to negligence or even gross negligence. Thus, ordinary care is a relative term, and the known characteristics of children must be taken into consideration in determining whether or not sufficient care for the safety of children has been exercised in a particular case. Bronson v. Kansas City, 323 S.W.2d 526, 531 (Mo.App.1959).

Looking at the evidence, in the light most favorable to plaintiffs, the jury could have found that the holes placed in the back of the oven by the manufacturer were to provide a means for securing the oven to the cabinet; that defendant was aware of the existence and the purpose of those holes, but chose not to fasten the oven to the cabinet; that the industry-wide practice was to fasten the oven in place; that the practice followed by defendant, although possibly adequate for the protection of adults, was not adequate for the protection of children; that the presence of patrons’ children in defendant’s store was foreseeable; that there was no way for the plaintiffs to know that the oven was not securely fastened; and that the failure of defendant to either secure the oven or to provide plaintiffs with sufficient warning of the potential danger in opening the oven was negligence. The evidence introduced by plaintiffs on the issue of liability was sufficient to make a submissible case for the jury. It was not, therefore, error for the trial court to refuse to direct a verdict in favor of defendant.

THE INSTRUCTION ISSUE

Defendant, in his second point, alleges that the trial court erred in giving Instructions No. 2 and 4 on the grounds that those instructions submitted evidentiary facts to the jury and gave the jury a “roving commission” to speculate about the safety of defendant’s entire showroom, rather than limiting them to the question of the safety of the display oven.

Instructions No. 2 and 4 are identical with respect to their challenged paragraphs, which read, “Your verdict must be for the plaintiff(s) ... if you believe: First, there was an unfastened oven in a display cabinet in the show room (sic) in defendant’s store and as a result the show room (sic) was not reasonably safe for customers . . .” Defendant claims that, since it was undisputed that the oven was “unfastened”, the use of the term “unfastened” requires the finding of detailed evidentiary facts in violation of Rule 70.02(e). We conclude that plaintiffs have not included evi-dentiary facts in the disputed instructions.

From the beginning, plaintiffs have asserted that defendant’s failure to fasten the display oven, contrary to industry-wide practice, made defendant’s premises unsafe and directly led to the injuries suffered herein. There is no MAI instruction to cover the particular facts of this case. Plaintiffs, pursuant to Rule 70.02(e), chose to modify MAI 22.03 to fit the facts. In modifying the approved invitee instruction, they were, required to set out the nature of the dangerous condition and to state that the condition made the premises unsafe. Enloe v. Pittsburgh Plate Glass Company, 427 S.W.2d 519, 525 (Mo.1968). Since plaintiffs maintained that it was the unfastened condition of the oven which constituted the dangerous condition, they were obligated to set that condition out in the modified instructions.

Although defendant has never denied that the oven, which fell on Chad, was unfastened, he has denied that the unfastened condition of the oven made his premises unsafe, and he has insisted, throughout trial and on appeal, that the oven was displayed in a safe manner. This was a jury issue. The jury chose to believe otherwise. We fail to see where it was improper for plaintiffs to submit the instructions in question. See O'Connell v. Roper Electric Company, Inc., 498 S.W.2d 847, 856 (Mo.App.1973). The instructions submitted by plaintiffs leave open the possibility that the jury could find that, although the oven was not fastened, defendant’s premises were still safe for customers. Thus, the ultimate fact, to be decided by the jury, was not, “Was the oven unfastened?”, but rather, “Did the unfastened oven make defendant’s premises unsafe?” The challenged instructions correctly submit this issue to the jury.

Defendant also alleges that the use of the term “showroom” gives the jury a roving commission to speculate about the safety of his entire showroom. We disagree with this contention. The duty owed by a store owner to his customers is to maintain a safe “showroom” or “display floor”. That is the area into which the customer is invited and that is the area which the owner must keep safe. The store owner is not asking customers to use the appliances displayed there, but merely to examine and inspect them. In so doing, his duty is to maintain the display items in a safe manner, and that duty extends to all items in the showroom.

Looking at the disputed instructions in their entirety, the use of the term “showroom” does not give the jury a roving commission to speculate about the safety of the entire showroom. The instructions adequately focus the attention of the jury on the condition of the display oven, which fell on Chad, and its effect upon the showroom area which defendant was required to maintain. Defendant’s argument in favor of substituting the phrase “adequately secure the oven” in place of “fasten it”, in the fourth paragraph of the challenged instructions, is without merit since the meaning of the two phrases is essentially the same.

THE OPINION EVIDENCE

In his third point, defendant alleges that the trial court erred in allowing plaintiffs' medical witness to testify as to Chad’s medical condition, since that opinion was based, in part, on inadmissible hearsay evidence related to the doctor by Chad’s parents. The statements, about which defendant complains, were incorporated into the following hypothetical question presented to Dr. Cash by plaintiffs’ attorney. (The underlined portions indicate statements made by Troy and Marketta Howard concerning Chad’s condition.)

“Q. All right, Now, Doctor, assuming that an infant, Troy Chad Howard, two years and four months old was in good health, and had a normal speech pattern for his age: he did not wet the bed at night: that on March 14, 1977 he had an oven fall on him. Assuming further that the oven struck him upon the head in the left parietal temporal region. And assume further that the child began bleeding from the right ear; that the infant vomited twice; that the child was seen at the emergency room at the Lucy Lee Hospital in Poplar Bluff, Missouri, that the child further was transferred by ambulance to the LeBonheur Children’s Hospital in Memphis, Tennessee; and assuming further that he was admitted to the LeBonheur Children’s Hospital on March 14, 1977; assuming further that he was released from the LeBonheur Children’s Hospital on March 16, 1977, and released to the care of a local physician; and assume further that since the release from the LeBonheur Children’s Hospital the child has complained of leg pains and has started wetting the bed at night, and that the child now stutters: that upon being exposed to noises such as a household vacuum cleaner the child covers his ears with his hands and grimaces: and assuming further that this child often awakens at night and appears frightened: that after awakening from a nap he will scream that his legs hurt and that he will not stand and walk on his legs at that time: and assuming further that the child has hyperactive knee jerks bilaterally; assuming those facts are true, do you have an opinion based upon reasonable medical certainty as to the cause of these conditions; do you have an opinion?”

The general rule governing the testimony of a treating physician is set out in Schears v. Missouri Pacific Railroad Company, 355 S.W.2d 314, 317 (Mo. banc 1962).

“A physician, in stating his expert opinion on a patient’s condition, may testify to what he personally observed and also to what the patient said (an exception to the hearsay rule) concerning his present, existing symptoms and complaints. However, he may not base his opinion on or testify to statements of the patient with respect to past physical conditions, circumstances surrounding the injury, or the manner in which the injury was received.”

It is also well settled that an expert witness may base a competent opinion upon matters within his personal knowledge or observation, upon competent evidence in the case, or upon both. Oesterle v. Kroger Grocery & Baking Co., 346 Mo. 321, 326, 141 S.W.2d 780, 782 (1940). Generally, an expert witness may state the reasons for his opinion, but when the reasons are based in part on hearsay, the proper way to present an expert’s opinion is to present competent evidence of facts from a proper source and then submit those evidentiary facts to the expert in a hypothetical question along with other relevant matter. Schears v. Missouri Pacific Railroad Company, supra at 320. After carefully studying the record, we find no error in the hypothetical question presented to Dr. Cash.

Dr. Cash was not allowed to testify as to Chad’s past history or present complaints based on statements made by Chad’s parents to him. Prior to the hypothetical question, Dr. Cash testified only as to what he observed while treating Chad. Thus, the only question for review here is whether the testimony of Chad’s parents, at the time of trial, was competent evidence which could be properly incorporated into the hypothetical question asked of Dr. Cash.

As part of plaintiffs’ case, Troy Howard was asked on direct examination:

“Q. (by Mr. Mowrer) I will ask you to think back about the time period between Chad’s birth and March 14, 1977, and I will ask you whether you remember any problems at all concerning Chad Howard during that time period?
A. No, sir. Chad Howard was potty trained; he walked and talked normal; he didn’t have any physical problems.
Mr. Purcell: Now I object to that, the statement he had no physical problems and ask that it be stricken.
The Court: That portion of the answer may be stricken and the jury is instructed to disregard it.”

Both defendant’s objection and the trial court’s ruling clearly show that Troy’s statements about Chad’s toilet training and speech and walking patterns were not objected to by appellant.

Troy Howard also testified, without objection, that Chad had stopped wetting the bed by the time of the accident, but that since the accident Chad has started wetting the bed again; that Chad has trouble with his legs and awakes from naps screaming and hollering and wanting his legs rubbed; that Chad now stutters; and that Chad grabs his head when he hears any kind of loud noise, like a vacuum cleaner. Marketta Howard testified, without objection, that Chad would wake up from a nap and cry about his legs, that running the vacuum cleaner would make Chad hold his ears and cry, and that when Chad would get off the commode, he wouldn’t stand up. Since defendant neither specifically objected to this testimony by Chad’s parents, nor preserved a running objection to any testimony by the Howards concerning Chad’s condition, he has failed to preserve anything for review. Federal Deposit Ins. Corp. v. Crimson, 513 S.W.2d 305, 307 (Mo.1974); Stafford v. Lyon, 413 S.W.2d 495, 498 (Mo.1967); Rule 84.13(a).

Reversal on this point, under the plain error rule, Rule 84.13(c), is not warranted in this case, since no manifest injustice or miscarriage of justice resulted from the admission of this testimony. The statements made by the Howards concerning Chad’s behavior since the accident reflected personal observations and, by definition, were not hearsay. State v. Harris, 571 S.W.2d 443, 446 (Mo.App.1978). Their testimony concerning Chad's expressions of pain, under Missouri law, were admissible as original evidence. Squires v. City of Chillicothe, 89 Mo. 226, 230-231, 1 S.W. 23, 24 (1886); Haile v. Metropolitan Life Ins. Co., 96 S.W.2d 628, 629 (Mo.App.1936); Estes v. Missouri Pacific Railway Company, 110 Mo.App. 725, 731, 85 S.W. 627, 629 (1905); Bragg v. City of Moberly, 17 Mo.App. 221, 225 (1885). (Under the federal rules, the statements would be admissible as an exception to the hearsay rule. F.R.E. 803[3]) The testimony of Chad’s parents was competent evidence, properly admitted, and there was no error in incorporating it into the hypothetical question.

WERE EXCESSIVE DAMAGES AWARDED?

In his fourth point, defendant alleges that the trial court erred in failing to grant a new trial, on the ground that the jury’s award to Chad and his parents was so excessive that it must have resulted from the bias, passion and prejudice of the jury. In the alternative, appellant argues in his fifth point that, at the very least, the jury’s award to Chad should be reduced by $35,000 and the award to Chad’s parents should be reduced by $4,000, by way of remittitur.

An appellate court will not determine bias and prejudice of the jury from the amount of the verdict alone. Some other basis for making a determination of bias and prejudice must be shown. Webb v. Rench, 476 S.W.2d 570, 572-573 (Mo.1972). Looking at the record, we find no showing of anything which might indicate bias and prejudice on the part of the jury. We therefore rule against defendant on point four.

As for the question of remitti-tur, there is no precise formula for determining whether a verdict is excessive. Each case must be decided upon its own facts. Consideration is given to the nature and extent of the injuries, diminished earning capacity, economic conditions, plaintiff’s age, and a comparison of compensation awarded and permitted in cases of comparable injury (the rule of uniformity). The ultimate test is what fairly and reasonably compensates plaintiff for the injuries sustained. Graeff v. Baptist Temple of Springfield, 576 S.W.2d 291, 309 (Mo. banc 1978). In determining the issue of exces-siveness of damages, the reviewing court must consider the evidence, and favorable inferences arising therefrom, that uphold the jury verdict, and disregard conflicting testimony and inferences. Clark v. Portman, 357 S.W.2d 728, 731 (Mo.App.1962). The court should further consider that it is primarily the function of the jury to fix the amount of damages and that a trial court, in overruling the motion for new trial, has approved the amount of the verdicts. Joly v. Wippler, 449 S.W.2d 565, 570 (Mo.1970). The jury’s determination should not be disturbed “unless the amount is so grossly excessive that it shocks the conscience of the court.” Stimage v. Union Electric Co., 465 S.W.2d 23, 28 (Mo.App.1971).

Looking at the evidence, as outlined above, in a light most favorable to plaintiffs, it is clear that Chad was seriously injured when the oven fell upon him. Chad’s problems had not completely cleared up in the 11 months between the accident and the time of trial. This fact alone constitutes some evidence of permanent damages and the need for continuing treatment and observation. Due to double-digit inflation and the ever decreasing value of the dollar, it is useless to try and compare the jury awards here with jury awards in like cases in the early 1970’s and those prior to that time. The jury’s damage awards were not so grossly excessive as to shock the conscience of the court and are supported by substantial evidence. We rule against defendant on point five.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Jack Lee NOBLE, Defendant-Appellant.
    No. 10806.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 28, 1979.
    Motion for Rehearing and Application to Transfer Denied Dec. 18, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      John Ashcroft, Atty. Gen., Richard F. En-gel, Mary C. P. Pincus, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
    David Robards, Joplin, for defendant-appellant.
   MAUS, Judge.

The defendant was charged with armed robbery. The jury returned a verdict of guilty, but was unable to agree upon the punishment. The trial court imposed a sentence of 50 years imprisonment.

One of the appellant’s points upon appeal is the insufficiency of the evidence to support the verdict. This requires a summary of the evidence. Near the closing time of 11:00 p. m. of a convenience store, the husband of the operator arrived to take his wife home. While standing in the front of the store, he felt something in his back. He turned around and there stood a white male, wearing a ski mask, with a blue steel revolver. At the command of the assailant, the operator placed the store’s money in the money bag, the husband gave the assailant his billfold and the husband and wife lay down on the floor. The assailant left. As he was leaving he was seen by an approaching customer who then went into the store.

Neither the operator, her husband nor the customer were able to identify the defendant as the robber. They did give a general physical description and a description of the clothing worn, including a jean jacket with an observable white spot on the arm and off-white rubber gloves.

Within approximately two minutes after the robber entered the store, the police received a report of the crime. At 10:42 an alert was broadcast over the police frequency. Officer Nail was in the vicinity and was at the store within a minute after the broadcast. He obtained a description of the automobile and from the store put that description on the police frequency. Within another minute Officer Nail heard a transmission of a police unit pursuing an auto- ' mobile as the result of his alert.

Officer Wixon, who was in the vicinity in an unmarked police car, heard the alert and Nail’s description of the fleeing automobile. At about that time Officer Wixon met and passed an automobile. As they passed, he observed the passenger in the front seat duck. Officer Wixon then turned around and started to follow the automobile which then speeded up. Officer Wixon followed and at 10:48 reported that he was in pursuit. After approximately three blocks, Officer Wixon turned on his red' “Kojack light” and siren. He had affixed the Ko-jack light to the dash. Later Officer Wixon was joined by another unmarked police car with siren and Kojack light and two “black and white” police cars with conventional red lights and sirens.

The pursuit was along a circuitous route on the streets and alleys of Joplin reaching speeds of 80 m. p. h. During the chase when he was approximately 10 or 15 feet from the fleeing automobile, Wixon saw the passenger turn in the seat and point a gun at him through the back glass. At this point Wixon abandoned his effort to stop the automobile by crowding it to the side. Also during the chase at one point Wixon saw something thrown from the passenger side of the automobile. Later in the chase he saw the passenger open his door and throw from the car what appeared to be a “ski mask or hat of some sort”.

The chase came to an end when the fleeing vehicle attempted to make a turn at an intersection and was hit by one of the pursuing police cars. The fleeing automobile was driven by Linda Trease with whom the defendant had been living for approximately six months. The defendant was a passenger in the front seat. His jean jacket (which had a white spot on the sleeve and was unequivocally identified by the operator) and white plastic gloves were in the front seat. The money bag, the husband’s billfold, a ski mask and a blue steel .38 revolver were found at diverse points along the route of the chase. Phillip R. Whittle, Ph.D., Director of the Regional Crime Laboratory, whose qualifications were admitted, examined hairs from the ski mask as compared to hairs from the head of the defendant. He testified that the results of his examination were consistent with the hairs having come from a common source. He did admit there was a “slight possibility” that hairs of another person could be exactly the same' consistency as those of the defendant.

The defendant testified. It was developed that he had spent 27 years in the Missouri Penitentiary. He had been sentenced for a previous armed robbery and participation in a prison riot which resulted in murder. He stated that since his release from prison in March, 1975, he worked on construction. Concerning the evening in question, he stated that he and Linda had been at a house owned by her parents for the purpose of giving her father suggestions on how to improve it. He and Linda were returning home when they observed they were being followed by a car that “acted like it was trying to push us off the road at one point”. He was afraid this action resulted from enemies he had made in the penitentiary and he instructed Linda to keep going. Although they were in a chase, he said they first saw the red light and first heard the siren many blocks after the point at which the officer said he turned them on. He accounted for the subsequent failure to stop and efforts to elude four police cars in the multi-block chase at speeds up to 80 m. p. h. by the fact that Linda Trease did not have a driver’s license. He vigorously denied the robbery, pointing a gun at the pursuing officer and throwing anything from the fleeing automobile. He did say that the little boy (apparently the son of Linda) had a ski mask at least similar to the one recovered and that when he opened his door during the chase to see if a tire had blown out, the mask could have fallen from the car. He said he used the plastic gloves on the job and his jean jacket was used in climbing towers “where it got the paint and stuff on it, it’s all over it”.

In urging the insufficiency of the evidence he emphasizes alleged inconsistencies such as: the victim and her husband at one time said the ski mask had eye holes instead of a slot; the descriptions of the robber as compared to the defendant; and the customer’s description of the car as a dark Fairlane Ford when it was also described as a light tan, faded color, tan or brown. In considering this testimony the jury could conclude the ski mask was only briefly observed while under great stress; that the descriptions of the robber as taller than or about the same height as the victim’s husband (who was 5' lOVfe") and weighing 145-150 pounds were compatible with his own statement he was a little over 6 feet and under his normal weight of 187 pounds; that under the light at the store the Fairlane Ford could have appeared to the customer to be darker than it was. These alleged inconsistencies were not destructive of the state’s case and were for the jury to resolve, which they did against the defendant. State v. Smart, 328 S.W.2d 569 (Mo.1959).

On the other hand, to find the evidence insufficient the jury and this court would' have to accept as coincidences such facts as the following: the robber was of the same general description as the defendant; he fled in a Fairlane Ford of the same general vintage as the Fairlane Ford in which the defendant was riding; that the robber wore off-white plastic gloves and a jacket with white spots virtually identical to those of the defendant; that Linda’s little boy happened to have a ski mask similar to the one worn by the robber, which mask happened to be in the car in October and which happened to fall from the car; and that the robber drove at least a portion of the circuitous route of defendant’s flight and although not pursued, discarded a moneybag containing in excess of $360 and a billfold containing in excess of $50. On top of that to be accepted would be the proposition that Linda and the defendant attempted to flee from four police cars because Linda did not have á driver’s license. It is not necessary to have eyewitness identification. The sufficiency of the evidence to establish guilt is overwhelming. State v. Hatten, 561 S.W.2d 706 (Mo.App.1978).

Defendant’s next point is that the trial court erred in giving the jury a part of MAI-CR 4.50 (the Kerry Brown instruction). The instruction complained of was given under the following circumstances. The case was submitted to the jury at 5:16 p. m. At 6:30 p. m. the jury returned to the courtroom and the foreman in response to inquiries from the court said the jury had reached a verdict; “Well, I can give the verdict, yes. . . . No, we haven’t completed it yet. ... I feel that a few more minutes we can, yes.” The court then stated: “I see some difference of opinion on a couple of thé jurors.” The net effect of the questions and answers and observations of the court can best be summarized by the minutes of the trial judge: “Court calls jury back at 6:30 p. m. Jury indicates that they have not agreed upon the sentence.”

The court then gave the jury an additional instruction being that part of MAI-CR 4.50 that reads as follows:

“The court will now read to you an additional instruction which will be handed to you with an additional form of verdict.
If you unanimously find the defendant guilty you should fix the punishment. If however, after due deliberation, you find the defendant guilty, but are unable to agree upon his punishment, you will complete the verdict form so stating, and in that event the court will fix the punishment.”

The court then said: “I will give you that instruction together with the form of verdict that goes with it. If you will retire to your jury room and deliberate some more, ladies and gentlemen.” (Emphasis added).

The defendant first complains that the trial court should not have given this instruction because the foreman of the jury said: “I feel that a few more minutes we can, yes.” The defendant deals with the observation of the trial court that he observed some differences of opinion on a couple of the jurors by saying the foreman knew the likelihood that a verdict would be reached far better than the trial court. This is not acceptable. There can be no comparison of the ability of the foreman to that of the trial judge to gauge the atmosphere of the courtroom. The foreman’s misconception was demonstrated by the immediate response of at least two of the jurors. When MAI-CR 4.50 is to be given depends not only upon time but upon the circumstances. The circumstances of this case are remarkably similar to State v. Morris, 476 S.W.2d 485 (Mo.1971). That instruction has been approved after one hour and forty-five minutes deliberation, State v. Macon, 547 S.W.2d 507 (Mo.App.1977) and two hours, State v. Hubbs, 294 Mo. 224, 242 S.W. 675 (1922). There was no abuse of discretion. State v. McAllister, 468 S.W.2d 27 (Mo.1971); State v. Macon, supra.

The defendant next argues that the judgment must be reversed because the instruction did not include the last paragraph of MAI-CR 4.50. The omission of that paragraph in this case is not reversible error for two reasons. First, assuming it was error and that it had been properly preserved, its prejudicial effect is “to be judicially determined.” V.A.M.R. Crim. Rule 20.02(e). This case is not comparable to State v. McCracken, 518 S.W.2d 229 (Mo.App.1974), cited by the defendant, in which the court in initially submitting the case to the jury gave, without any further instructions concerning the assessment of the punishment, an alternative form of verdict by which the jury could find the defendant guilty but report they were unable to agree upon punishment. Here the case was initially submitted to the jury with no suggestion that they could reach a verdict without assessing the punishment. The instruction given did contain an admonition that the jury “should fix his punishment.” While oral communications to the jury are to be undertaken with caution, the trial judge added the jury should retire “and deliberate some more”. In no way was there coercion. The instruction given contains a stronger charge that the jury should fix the punishment than that contained in the pre MAI-CR “Kerry Brown” instruction which has been approved time and again. State v. Brown, 443 S.W.2d 805 (Mo. banc 1969); State v. Bolden, 494 S.W.2d 61 (Mo.1973); State v. Thompson, 465 S.W.2d 590 (Mo.1971). Such approval is tantamount to a determination the instruction as given was not necessarily prejudicial. The circumstances under which it was given further establish there was no prejudice. The jury had reported it had reached a verdict of guilty but could not agree upon punishment. Under these circumstances, the action of the trial court in immediately accepting the verdict has been approved. State v. Macon, supra. No prejudice resulted in giving them an opportunity to deliberate some more under the instruction that-was given. Second, the defendant did not preserve this point in his motion for a new trial. It may be properly considered as a basis for reversal only if the instruction was plain error affecting substantial rights when manifest injustice or miscarriage of justice has resulted therefrom. V.A.M.R. Crim. Rule 27.20. It did not. State v. Jones, 564 S.W.2d 930 (Mo.App.1978). Also, paraphrasing a recent case: “Even if the plain error rule is applicable, to warrant relief under that rule the court must find that a manifest injustice has occurred. In the present case, however, the [fifty] year sentence received by appellant was within the statutory limits . . . . Either the judge or the jury could assess such punishment. Appellant, therefore, cannot demonstrate prejudice resulting from the fact that the [judge] assessed punishment.” [changed from ten and jury] State v. Campbell, 543 S.W.2d 518, 520 (Mo.App.1976). Also see State v. Morris, supra.

The defendant next alleges the trial court erred in not declaring a mistrial following a statement by the customer who was a witness. On direct examination the customer identified the automobile leaving the store as a Fairlane Ford. On cross-examination he was asked if at the preliminary hearing he did not say he couldn’t tell whether it was a Ford or Chevrolet. He responded, he couldn’t remember; possibly, he didn’t know. When defense counsel then asked if the description of the car was “arrived at by your talking to the officer”, the customer asked to speak to the prosecutor and the attorney. Upon the court admonishing him to answer the questions and the customer saying that if the matter was pursued it would damage everything, the customer said: “The reason I don’t [sic] come forth with the direct statement before is because I have been getting telephone calls threatening my life.” Upon the basis the answer was not responsive, defense counsel moved for a mistrial which was refused. He then moved that the answer be stricken which was refused. Then, out of the hearing of the jury, the prosecutor advised the court he had no objection to the answer being stricken. Thereupon, the court instructed the jury to disregard the statement and asked defense counsel if that was all right. Defense counsel replied, “Thank you, Your Honor.”

For the purpose of this point, it is assumed but not decided that it was not responsive for the witness to so explain his apparently inconsistent testimony. But, this does not mean the court was compelled to declare a mistrial. The trial court could have considered the question and response to have been an abandonment of the request for a mistrial. Also, the declaration of a mistrial is largely in the discretion of the court. This was an isolated remark in a lengthy trial. In view of the strong evidence of guilt it cannot be said the jury was prejudiced and did not follow the court’s direction in reaching its verdict of guilty. There was no clear abuse of discretion. State v. Carlos, 549 S.W.2d 330 (Mo. banc 1977).

The defendant next alleges the trial court erred by admitting in evidence the revolver found on the path of flight because it was not directly identified as the weapon the robber held. As Officer Wixon pursued the fleeing car the defendant pointed a gun at him. Thereafter something was thrown from the automobile. The revolver was found in that vicinity. Under the circumstances, this was sufficient identification. State v. Johnson, 286 S.W.2d 787 (Mo.1956).

The last allegation is that the trial court erred in not granting a new trial because of newly discovered evidence. The newly discovered evidence was a confession of Mahan, who was confined in the Jasper County jail at the time the defendant was so confined. Mahan was called as a witness but upon claiming the protection of the Fifth Amendment refused to testify. His claim to this crime was established by the testimony of the defendant’s trial counsel and a deputy sheriff. His confession to counsel took place in the jail after the defendant told his counsel that a man in the jail admitted he had committed the robbery. Mahan related to counsel the event of the robbery and that after leaving he saw a police car chasing another car. Mahan then dodged through several streets and alleys, discarding the money obtained through the robbery. He disposed of his stocking cap later, and sold the revolver at a bar in Kansas City.

Assuming all of the other requirements are met, a new trial on the basis of newly discovered evidence should be granted only when that evidence is credible enough that it would probably produce a different result. State v. Lindley, 545 S.W.2d 669 (Mo.App.1976); State v. Nelson, 532 S.W.2d 806 (Mo.App.1975). The facts related by Mahan could easily have been supplied by the defendant. The strength of the state’s evidence at the trial is an important consideration. The trial court had an adequate basis to determine the newly discovered evidence that Mahan after obtaining approximately $410 by robbery, upon seeing the police chase someone else, discarded the money, but kept his stocking cap and gun, did not rise to the required level of credibility. State v. Woods, 577 S.W.2d 122 (Mo.App.1979).

The judgment is affirmed.

All concur.

      . Under the Notes on Use pertaining to MAI-CR 4.50 in MAI-CR (First Addition) that instruction could be given at the time of or after submission. Under these Notes on Use and How to Use This Book in MAI-CR (Second Addition) that instruction may be given, except in capital murder, “ ‘if after due deliberation by the jury the court finds the jury cannot agree on punishment.’ Section 557.036.2, RSMo.”

      .. The use of the “hammer” instruction has been approved after 2 hours and 3 minutes, including a lunch break. State v. Taylor, 508 S.W.2d 506 (Mo.App.1974).


text:
    STATE of Missouri, Plaintiff-Respondent, v. Raymond Glen KIPLINGER, Defendant-Appellant.
    No. 11075.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 29, 1979.
    Motion for Rehearing or to Transfer to Supreme Court Denied Dec. 19, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      John D. Ashcroft, Atty. Gen., Steven Scott Clark, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    W. Henry Johnson, Douglas, Douglas & Johnson, Neosho, for defendant-appellant.
   GREENE, Judge.

Defendant Raymond Glen Kiplinger was charged with the crime of burglary in the first degree, § 560.040, RSMo 1969, V.A. M.S. After jury trial, defendant was found guilty of the offense charged and was sentenced by the trial judge, pursuant to the provisions of the Missouri Habitual Criminal Act, to a term of 7 years in the custody of the Missouri Department of Corrections. This appeal followed. We affirm.

Two assignments of error are made on appeal, which are that the trial court erred in 1) allowing the complaining witness to make an in-court identification of defendant, over his objection, as the person who had broken into her home, for the reason that the pre-trial lineup procedure was im-permissibly suggestive and that there were not sufficient facts, independent of the lineup, on which to base a reliable in-court identification, and 2) overruling defendant’s motion for judgment of acquittal filed at the close of the state’s evidence, for the reason that the evidence was insufficient to prove the crime of burglary in the first degree.

Relevant facts necessary to decide the issues raised are as follows. Eithel Hayden and her husband, George, liv„ed in a farm home in the rural area of Newton County. The home contained furniture, lamps, a television set and other articles of value. The house was isolated, with the nearest neighbor being about one-half mile away. A lane led from the Hayden home to a county road. The lane was posted with a “No Trespassing” sign.

On January 20, 1978, at about twelve noon, Eithel was home alone. She heard a car enter her driveway, looked out the window, and saw the car stop behind her home. Two men were in the car. She did not know either of the men. As a rule, she did not answer the door when strangers came to the house. Mrs. Hayden became apprehensive, went to the living room and crouched down by the air conditioner. She heard someone knock at the back door, and then the front door. The back door was closed and bolted. This process was repeated five or six times until she finally heard the back door being “crashed into”.

She ran into the kitchen, at which point she saw someone “lunging” through the back door. The door bolt bent, and the screws holding it in place pulled out, allowing the intruder to force his way into the home. At trial, Mrs. Hayden identified the defendant as the intruder. Defendant stopped inside the door when he saw Mrs. Hayden. She was only a few feet from him when he saw her, and she was facing him. When defendant saw Mrs. Hayden, he said he “thought something was wrong.” Defendant had a slip of paper in his hand and said he was “looking for that address.” He repeated the statement two more times. The face-to-face confrontation lasted two to three minutes. About that time, Mrs. Hayden heard the sound of the mailman’s car. Defendant went out the back door and left the premises. Defendant did not take anything from the Hayden home. He did not stop to talk to the mailman.

When defendant left, Mrs. Hayden began crying, and then called her husband, who was at the Neosho Senior Citizen’s Center. Her husband went to the sheriff’s office to report the break-in. Deputy Sheriff Charles R. Barnett went to the Hayden home and obtained a description of the intruder from Mrs. Hayden.

Barnett testified that Mrs. Hayden told him the intruder was short and stocky, approximately 5'4" to 5'6" in height, that he had long hair, and that he was in his middle 20’s. At trial, Mrs. Hayden testified that she told Barnett that the intruder was between 5' and 5'4" tall, that he had red hair, and that he had a red bandana tied around his head. Later in the day, after defendant had been apprehended, Deputy Barnett called Mrs. Hayden, told her he thought they had caught the person who had broken into her home, and asked her to come to the courthouse to see if she could identify the suspect. She went to the courthouse where she viewed a lineup. The lineup, which was reminiscent of a scene from the television show Saturday Night Live, consisted of the defendant, who bore a resemblance to a diminutive look-alike of country singer Willie Nelson, red bandana and all, five other men, the shortest of whom was 5'11" fall, and a red Coca-Cola machine. Defendant was the only person in the lineup who had red hair and who was wearing a red bandana as a headband. At the motion to suppress hearing, Mrs. Hayden was asked if defendant was the only person in the lineup with red hair. Her reply was, “I didn’t notice the other ones because when I saw him, I knew it was him.” The lineup viewing was held less than five hours after the break-in.

• THE LINEUP ISSUE

Convictions based upon eye-witness identification at time of trial may be set aside if the pre-trial identification procedure, such as a lineup, was so impermissi-bly suggestive as to give rise to a substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Even if the pre-trial identification procedure was unnecessarily suggestive, the conviction will be upheld if, under the totality of circumstances, the in-court identification is reliable. In determining reliability, the court balances the possible suggestive influence of the pre-trial identification procedure against the totality of the circumstances giving rise to the in-court identification in question.

Several factors of reliability to be considered by the court are 1) the opportunity of the witness to view the criminal at the time of the crime; 2) the witness’ degree of attention at the time of the crime; 3) the accuracy of the witness’ prior description of the criminal; 4) the level of certainty demonstrated at the confrontation; and, 5) the time period between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, supra, 409 U.S. at 199, 93 S.Ct. 375; State v. Armbruster, 541 S.W.2d 357, 360 (Mo.App.1976).

On review of this question, we must determine if the pre-trial lineup was so suggestive that an independent basis must be shown to support the reliability of the in-court identification, and, if suggestive, whether the in-court identification was firmly grounded on observations made by the witness at the time of the crime and whether her in-court identification testimony at time of trial was positive. State v. Bivens, 558 S.W.2d 296, 299-300 (Mo.App.1977).

We observe that the lineup in question left a great deal to be desired, even when recognizing the difficulty of a rural county sheriff producing, on short notice, five or six adult suspects who were 5'4" tall or less, with long red hair, held in place by a red bandana. However, we believe that any possible imperfections in the lineup procedure were removed by Mrs. Hayden’s untainted in-court identification of the defendant. State v. Gillum, 540 S.W.2d 167, 168 (Mo.App.1976).

Mrs. Hayden had an excellent opportunity to observe defendant at the scene of the crime. She stood face to face with him in the middle of the day for two or three minutes. During part of that time, she conversed with him. She gave a description of the intruder to the sheriff’s deputies. .This description accurately described the defendant, as evidenced by his photograph, .which was introduced into evidence at the motion to suppress hearing as defendant’s exhibit 7. The time lapse between Mrs. Hayden’s initial confrontation with defendant and her identification of him at the sheriff’s office was less than five hours. She made an unequivocal identification of the defendant, at time of trial, as the man who broke into her home. The evidence demonstrated adequate independent grounds for the in-court identification, and the facts and circumstances brought out in evidence gave such identification a reliability warranting the admission of such evidence. The assignment of error is denied.

THE INSUFFICIENT EVIDENCE ISSUE

Defendant filed a motion for judgment of acquittal at the close of the state’s case, alleging insufficiency of evidence to support the charge. The motion was overruled. Defendant then presented evidence and did not renew his motion for judgment of acquittal at the close of all of the evidence. By offering evidence in his own behalf, defendant waived any claim of error by reason of the overruling of his motion for judgment of acquittal. State v. Garrett, 518 S.W.2d 97, 99 (Mo.App.1974); State v. Hill, 438 S.W.2d 244, 247 (Mo.1969).

We have not been asked to review this assignment of error under the plain error doctrine, Rule 84.13(c), V.A.M.R., and decline to do so sua sponte, as a consideration of the facts and circumstances as a whole, supports the conclusion reached by the jury that defendant broke into the Hayden home with the intent to steal. State v. Washington, 484 S.W.2d 267, 269-270 (Mo.1972); State v. Powell, 357 S.W.2d 914, 917 (Mo.1962).

The judgment is affirmed.

All concur.


author: HOUSER, Senior Judge.

text:
    MERRILL LYNCH, PIERCE, FENNER AND SMITH, INC., Respondent, v. Robert L. SHACKELFORD, Appellant, The First National Bank of St. Joseph, Missouri, Garnishee, Mary Alice Shackelford and Mrs. Ann Long, Appellants.
    No. KCD 29739.
    Missouri Court of Appeals, Western District.
    Dec. 3, 1979.

      Gregory O. Grounds, Jones, McDaniel & Frankum, Kansas City, for appellant.
    William H. Utz, III, St. Joseph, for First National Bank of St. Joseph.
    Michael W. Lerner, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, for Merrill Lynch, Pierce, Fenner & Smith.
    Before WASSERSTROM, Chief Judge, Presiding, WELBORN, Special Judge, and HOUSER, Senior Judge.
   HOUSER, Senior Judge.

First National Bank of St. Joseph was summoned as garnishee under a general execution issued to satisfy a judgment obtained by Merrill Lynch, Pierce, Fenner & Smith, Inc. against Robert L. Shackelford in the sum of $8,473.89. The bank filed a pleading alleging that it had on its books a checking account in the names of Mr. and Mrs. R. L. Shackelford, and had in its possession a $100,000 U.S. Treasury Note registered to Robert L. Shackelford or Mrs. Alice Shackelford or Mrs. Ann Long, or the survivors or survivor; that the bank had no claim against the note; that as stakeholder the bank wanted to pay into court the amount of the checking account and deliver the treasury note to await final determination of the garnishment action and thereupon be relieved of any liability, and prayed that Mrs. Shackelford and Mrs. Long be made parties and required to plead. The Shackelfords will sometimes be referred to as “Mr. S” and “Mrs. S.” In Mr. S.’s answer and in the answers of Mrs. S. and Mrs. Long, filed pursuant to order of interpleader, all three defendants claimed an ownership interest in the treasury note as joint tenants with rights of survivorship, and that the note was not subject to garnishment by Merrill Lynch.

Following trial to the court on the merits, without a jury, the trial court concluded that whatever interests Mrs. S and Mrs. Long might have in the treasury note, that interest was insufficient to prevent execution thereon for the indebtedness of Mr. S to the extent of the judgment plus interest; that, accordingly, Merrill Lynch had an immediate right to $9,164.80 of the proceeds from the treasury note. Judgment was entered for Merrill Lynch and against Mr. and Mrs. S and Mrs. Long, directing that the treasury note be liquidated to this extent, and that the balance remaining be paid to Mr. S. The Shackelfords and Mrs. Long appealed.

Robert and Mary Alice Shackelford are husband and wife. Mrs. Ann Long is their daughter. In April, 1973 Mr. and Mrs. S sold a farm, which they had owned as joint tenants for about eighteen years, for approximately $140,000. On May 15,1973 Mr. S, using approximately $100,000 from the sale proceeds, purchased the U.S. Treasury Note. It was issued in the face amount of $100,000 in the names of “ROBERT L SHACKELFORD ([ XXX-XX-XXXX ]) OR MRS MARY ALICE SHACKELFORD OR MRS ANN LONG OR THE SURVIVORS OR SURVIVOR”. Asked how much money she contributed toward the purchase of the treasury note, Mrs. S answered, “Well, we had sold the farm we owned jointly. I would guess half.” There is no evidence that Mrs. Long contributed anything to the purchase of the treasury note. Asked if he made a gift of any of the value of the treasury note to his wife or daughter Mr. S answered in the negative, stating that “[i]t wasn’t (his) to make a gift.”

On February 19, 1976 Mr. S signed a promissory note to the bank in the sum of $37,220. Mrs. S did not sign the note. Mr. S deposited the $100,000 U.S. Treasury note with the bank as collateral security for the $37,220 note. The promissory note recited that upon nonpayment of the note the bank could sell the collateral and that “The surplus, if any, after payment of this note and all other indebtedness whether due or not, owing now (or hereafter while any part of this note is unpaid) by the undersigned to the said Bank, for the payment of which other indebtedness the undersigned does also hereby pledge said collateral, shall be paid to the maker of this note.”

Between February 19, 1976 and April 1, 1976 Mr. S made payments on the $37,220 note. On the latter date Mr. S made the final payment on the note, and the bank delivered the $100,000 treasury note to Mr. S. Four days later, on April 5, 1976, Mr. and Mrs. S went to the bank with the $100,000 treasury note for the purpose of cashing it. At the bank the two assigned the treasury note in blank on the reverse side, by writing their names: “Robert L. Shackelford” and “Mrs. Mary Alice Shack-elford.” Mrs. Ann Long did not accompany the Shackelfords to the bank. Mrs. Long did not assign her interest in the treasury note. The assignment form was not completed by an officer of the bank in compliance with the instructions for assignment printed on the treasury note. The only writings on the assignment forms are the signatures of Mr. and Mrs. S. Instead of cashing the treasury note as requested, the bank, which had been served with garnishment process, held the note subject to the summons in garnishment.

Appellants make the point that in entering judgment for Merrill Lynch the trial court erred as a matter of law for the reason that the treasury note was held by the Shackelfords as tenants by the entirety and therefore the note was immune from execution to satisfy the claims of a creditor of one of the spouses.

Citing Wilson v. Frost, 186 Mo. 311, 85 S.W. 375 (1905), appellants contend that when Robert and Mary Alice Shackelford purchased the U.S. treasury note they held it in their joint names and therefore, being husband and wife, a presumption arose that they held it as tenants by the entirety, there being no language limiting the conveyance to a joint tenancy; that neither spouse had a separate interest in the property, under Otto F. Stifel’s Union Brewing Co. v. Saxy, 273 Mo. 159, 201 S.W. 67 (1918), and that under United States v. Hutcherson, 188 F.2d 326 (8th Cir. 1951), the property could not be attached by a judgment creditor of one of the individual spouses.

In this-jury-waived, court-tried case, the appellate court is obliged to sustain the trial court unless there is no substantial evidence to support it; unless it is against the weight of the evidence; unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

Where two persons who are husband and wife become joint owners of personal property a presumption arises that they hold the property as tenants by the entirety. The presumption is that each spouse owns an undivided interest in the whole of the property. 15A Mo.Dig., Husband and Wife «=» 14.(2).

Presumably the form in which the treasury note was issued created an estate by the entirety unless, as Merrill Lynch contends, (1) the inclusion of the third party (their daughter, Mrs. Long) in the designation of ownership, or (2) the listing of the names of the three owners in the disjunctive rather than in the conjunctive, or (3) the failure to include the words “his wife” after Mr. S’s name indicates an intention that each of the three owners have an equal right to the proceeds of the note, or unless (4) the presumption of tenancy by the entirety has been rebutted by acts and conduct of the Shackelfords evincing an intention to create some other estate. None of these contentions may be sustained.

(1) The inclusion of Mrs. Long as one of three owners did not put the presumption to flight or dictate the conclusion that this is a conveyance of one-third shares. “Deed to husband and wife and another person creates one undivided half in husband and wife as tenants by entirety, and the other undivided half in the other person as tenant in common * * Gill, The Missouri Law on Title to Real Property, 4th Ed., Vol. I, § 568. “A conveyance or devise to husband and wife and another, under the common law rule and insofar as such rule has not been changed by statute, vests the husband and wife with one moiety and the third person with the other moiety,” 41 Am.Jur.2d Husband and Wife, § 63; Daniel v. Wright, 352 F.Supp. T (D.C.D.C.1972); Adamson v. Adamson, 273 Or. 382, 541 P.2d 460 (banc 1975). “Where real property is conveyed or devised to husband and wife and a third person or persons, the husband and wife, being but one person in law, will together take only an undivided moiety or half of the estate, * *. As between themselves, husband and wife are tenants by entirety of their share, but as to the third person they are together a joint tenant or tenant in common with him.” 41 C.J.S. Husband and Wife, § 31, f. p. 454. The same rules apply to estates in personal property.

(2) The use of the connective word “or” was not fatal to the creation of an entirety estate. In Fulton v. Fulton, 528 S.W.2d 146 (Mo.App.1975), a checking account in the names of “J. C. Fulton or Grace L.” (they being in fact husband and wife) was held to create an estate by the entirety. “ * * * [A]ll choses in action, payable to husband and wife or to husband or wife are presumed to be estates by the entirety.” Cullum v. Rice, 236 Mo.App. 1113, 162 S.W.2d 342 (1942), in which a bank account appeared under this designation: “Mrs. R. W. Rice, R. W. Rice,” with the following stamped on the card, “Either of them, or to survivor in case of death of either.” In Hanebrink v. Tower Grove Bank & Trust Company, 321 S.W.2d 524 (Mo.App.1959), a savings account listed as “Hanebrink, Ida or Mark, either or surviv- or” was held to give rise to the presumption that the account was held by the entirety. A bank account styled “Mrs. Viola Pavlik or William A. Pavlik (husband) either or the survivor” made the named parties hold the account as tenants by the entirety. Feltz v. Pavlik, 257 S.W.2d 214 (Mo.App.1953).

(3) The failure to include the words “his wife” or “husband and wife” does not destroy the presumption, where the two persons in question are in fact husband and wife. “It matters not that the account did not' designate them as being husband and wife, for they were that in fact at all times herein concerned. State Bank of Poplar Bluff v. Coleman, 241 Mo.App. 600, 609, 240 S.W.2d 188, 190 ([Mo.App.] 1951).” Fulton v. Fulton, supra, 528 S.W.2d l.c. 157. “An estate by the entireties arises from a conveyance or devise to husband and wife, though the deed, will, or other instrument does not describe them as husband and wife or refer to their marital relationship, * 41 Am.Jur.2d, § 57, p. 63. “Where the grantees are husband and wife, it is not essential to the creation of an estate by entirety that they be so described in the deed; * * *.” 41 C.J.S., § 31, b. (1), p. 446. And see Gill, The Missouri Law of Title to Real Property, 4th Ed., Vol. I, § 565.

We conclude that a valid tenancy by the entirety was created as between Mr. and Mrs. S, who, together, held a one-half interest in the treasury note in joint tenancy with their daughter, Mrs. Long, who owned the other one-half interest.

The next question is whether the presumption of tenancy by the entirety was rebutted by acts and conduct of the parties inconsistent with that estate. “Personal estates held by the entirety can be changed to other types of estates by consent, agreement or acquiescence.” Coffey v. Coffey, 485 S.W.2d 167, 170 (Mo.App.1972); Cooper v. Freer, 385 S.W.2d 340, (Mo.App.1964), wherein the court said, l.c. 345: “The husband and wife can by consent, agreement, or acquiescence change the character of entirety property.” A tenancy by the entirety may be severed during the lifetime of the parties by agreement, actual or implied, Community Federal Sav. & Loan Assoc. v. Luckenbach, 436 Pa. 472, 261 A.2d 327 (1970), “or by any conduct or course of dealing sufficient to indicate that all parties have mutually treated their interests as belonging to them in common.” 48 C.J.S. Joint Tenancy, § 4, p. 928. The change, however, cannot be effected by the unilateral act, understanding or conduct of one of the spouses. To cause such a change the husband and wife must act together in a joint and mutual effort. “ * * * [Neither the husband nor the wife owning personalty by the entirety can dispose of the whole or any part thereof without the consent, agreement or acquiescence of the other. * * * ‘One of the incidents of a tenancy by the entirety is that any act affecting the title to property thus held must be by joint act. * * * ’ ” Coffey v. Coffey, supra, 485 S.W.2d l.c. 170.

Merrill Lynch contends that by pledging the treasury note as collateral for a personal loan to him Mr. S treated the note as if he had a separate and divisible interest therein, and acted in a manner inconsistent with his present claim that the entirety interest is immune to creditor claims. The alleged inconsistency is at once apparent. That Mr. S considered his interest separate and divisible is confirmed by the provision in the promissory note he signed that if the bank took over the collateral on default and sold the treasury note the surplus over the debt owed the bank should be paid to the maker of the note — Mr. S. The husband, acting alone, however, cannot change an entirety estate to some other estate. Acting alone, Mr. S could not bind his wife by his individual act. Leuzinger v. Merrill Lynch, Pierce, Fenner & Smith, 396 S.W.2d 570, 580 (Mo.1965); Bank of Jasper v. Langford, 459 S.W.2d 97, 100 (Mo.App.1970). There is no evidence that Mrs. S had knowledge of, or that she consented, agreed, acquiesced in, or ratified, the act of Mr. S in pledging the treasury note to the bank.

Merrill Lynch had the burden of proving that Mrs. S joined Mr. S in or approved that-act. Merrill Lynch has failed to meet the burden of proof of this vital fact. Merrill Lynch boldly asserts in its brief that Mrs. S “consented to the pledging of the Treasury Note as security for the individual debt of her husband”, and that when she did so she “acted in a manner inconsistent with a tenancy by the entirety interest. She now urges that her interest protects the Treasury Note from being levied upon by her husband’s creditors, whereas earlier she had been willing to give one creditor that very interest as security for her husband’s debt.” This assertion, of controlling importance if true, is not supported by evidence of record.

Accordingly, the tenancy by the entirety remained intact, and the case is governed by the rule that “[wjhere a judgment and execution are against the husband alone such judgment cannot in any way affect property held by the husband and wife in the entirety. Neither can it affect any supposed separate interest of the husband, for he has no separate interest, (citing cases) * * * [Tjhere could have been no valid order on the garnishee to pay the amount of the savings account into court in the absence of evidence overcoming the presumption that the account was held by the entirety.” Hanebrink v. Tower Grove Bank & Trust Co., 321 S.W.2d 524, 527 (Mo.App.1959); Flesher v. Carter, 467 S.W.2d 276, 278 (Mo.App.1971). In Cullum v. Rice, supra, the bank account was in the names of “Mrs. R. W. Rice, R. W. Rice,” with the following stamped on the bank card: “Either of them, or to the survivor in case of the death of either.” A judgment creditor of the husband garnished the bank. Holding that the agreement between the husband and wife and the bank created an estate by the entirety, the court ruled that “ * * * the same is not subject to garnishment under execution to satisfy a judgment had against Mr. R. W. Rice.” Cullum v. Rice, 162 S.W.2d l.c. 344.

For lack of evidence to support the judgment, in the rendition of which the court erroneously declared and applied the law, the judgment is reversed. Cause remanded with directions to order the $100,000 U.S. Treasury Note released and returned to Robert L. Shackelford, Mary Alice Shackel-ford and Mrs. Ann Long.