author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Gary HOLLAND, Appellant.
    No. 35931.
    Missouri Court of Appeals, St. Louis District, Division Four.
    June 24, 1975.
    Application to Transfer Denied Sept. 8, 1975.
    Charles D. Kitchin, Public Defender, John F. Bauer, James C. Jones, Asst. Public Defenders, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Julian D. Cosentino, Asst. Circuit Atty., St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Gary Holland was found guilty by a jury of robbery in the first degree by means of a dangerous and deadly weapon, § 560.135 RSMo 1969, V.A.M.S., and sentenced to the custody of the Department of Corrections for a term of ten years. We affirm.

There is no challenge to the sufficiency of the evidence. A jury reasonably could find that on April 9,1973, by means of a dagger shaped letter opener, appellant took money, something less than $10, from the person of Judy Buckman. Michael Fiddelke wrestled with appellant and attempted to capture him but he “started peeling clothing off” and escaped. He was subsequently identified as the robber by both Judy Buckman and Michael Fiddelke in a. lineup and at trial.

Appellant first contends that the trial court erred in refusing to suppress the testimony of Judy Buckman and Michael Fiddelke that they identified appellant at the lineup because it was conducted at the juvenile detention center while he was still in the custody of the juvenile court.

Appellant argues that the admission of the identification testimony violated the letter and spirit of the juvenile code. However, in State v. Richardson, 495 S.W.2d 435 (Mo. banc 1973), and State v. Thompson, 502 S.W.2d 359 (Mo.1973), it was expressly held that the results of a lineup involving a juvenile who at the time was in the custody of the juvenile court are admissible in a subsequent trial on a criminal charge. Appellant makes no other challenge to the lineup, and the one made is without merit.

Appellant’s remaining point in its entirety is that “The trial court erred in permitting the State to impeach its own witness.”

This “point relied on” is totally inadequate to present anything for appellate review. Under certain circumstances a party, including the State in a criminal case, may impeach its own witness. Wharton’s Criminal Evidence, 13 ed. § 455 et seq. Therefore, the mere assertion that impeachment of a witness occurred does not necessarily establish error. Rule 84.04, V.A.M.R., provides that “The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citation of authorities thereunder.” (Italics added). “The points and authorities in an appellate brief have the definite purpose of isolating and formulating the precise issue to be reviewed and that function, if observed at all, should not be relegated to written argument.” State v. Dennison, 428 S.W.2d 573 (Mo.1968). See also Griffith v. State, 504 S.W.2d 324 (Mo.App.1974); Anderson v. State, 493 S.W.2d 681 (Mo.App.1973); and Kansas City v. Garza, 493 S.W.2d 659 (Mo. App.1973). There is no attempt by the point to present a federal constitutional issue. See State v. Reynolds, 422 S.W.2d 278 (Mo.1967). At most there is a contention that a trial error occurred which would not rise to the dignity of plain error affecting substantial rights within the meaning of Rule 27.20(c).

The judgment is affirmed.

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


source: Caselaw Access Project

author: SIMEONE, Presiding Judge.

license: Public Domain

text:
    Samuel A. GOODWIN, Plaintiff-Respondent, v. S. J. GROVES & SONS COMPANY, Defendant-Appellant.
    No. 36209.
    Missouri Court of Appeals, St. Louis District, Division Three.
    June 10, 1975.

      Dearing, Richeson, Roberts & Wegmann, Hillsboro, for defendant-appellant.
    Gregory D. O’Shea, Lemay, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

This is an appeal by defendant-appellant, S. J. Groves & Sons Company from a judgment entered on April 3,1974, by the circuit court of Ste. Genevieve County in favor of the plaintiff-respondent, Samuel A. Goodwin in the amount of $5,000 for damages to respondent’s home caused by blasting operations conducted by the defendant-appellant. For reasons hereinafter stated, we affirm the judgment.

Since appellant, S. J. Groves & Sons Company makes only one point'on this appeal— that the court erred in giving Instruction No. 4, the damage instruction — it is unnecessary to detail all of the facts brought out at trial. We shall state only those facts necessary for the disposition of appellant’s contentions.

Mr. Samuel Goodwin acquired ownership of his home on January 5,1971. He moved into the house sometime in February, 1971. He purchased the property from one Jim Gibson. During December, 1970, he and Mr. Gibson were “batching” there. Prior to January 5, 1971, and subsequent thereto, S. J. Groves & Sons Company was engaged in the project of constructing Interstate Highway 55 in the County. In the course of the construction, it performed certain blasting operations to remove rock for the highway right-of-way. In tlie course of the construction, appellant Groves Company would drill and set off explosives at different sites and at different times. Blasting occurred on several occasions. There were two occasions in December, 1970 — December 7 and 9 — which took place within approximately 350 to 450 feet of the plaintiff’s home, and there were seven occasions in March, 1971, at approximately 130 feet from the home.

Before Mr. Goodwin purchased the property in January, 1971, he inspected it. He looked over the basement, the concrete block foundation, the fireplace and other parts of the house. “The house was well-constructed. I couldn’t see anything wrong with it, period.” There were no cracks in the foundation, the fireplace was “perfect,” the plumbing worked, and the “house was in good shape, as far as I was concerned.”

At one point during the March explosions, Mr. Goodwin was “knocked to the ground.” After the March explosions, according to Mr. Goodwin and other witnesses for the plaintiff, there was damage to various portions of his house. The foundation was cracked (in the opinion of one witness —“fractured”), the mantle of the fireplace was cracked, the front porch was cracked in two places, the ceiling tile had to be replaced, there were problems with the well, the line to the septic tank was ruptured and the doors and door frames had to be cut because the floor settled.

A professional engineer testifying for the plaintiff, Mr. Goodwin, testified that the damages were due to the blasting operations in March, 1971. Mr. Goodwin purchased the home for $9,700 and estimated that because of the damage it decreased in value some $6,000.00 to $7,000.00. Several neighbors testified for the plaintiff. The thrust of their testimony was that they also suffered some damage, but one neighbor noticed his damage in December, 1970.

The defendant’s defense was mainly based on the proposition that the blasting in March did not likely cause the damage, because the method of blasting — a series of “delays” — and the contour of the land were such that it was unlikely that damage to the plaintiff’s house was the result of the March explosions. One of defendant’s witnesses testified that he didn’t think the March explosions “would” cause the damage.

The trial court gave certain instructions. Instruction No. 2, plaintiff’s verdict directing instruction, informed the jury that the verdict must be for the plaintiff if you believe that “defendant exploded ammonium nitrate and other high explosives after January 5, 1971 ” and as a direct result plaintiff was damaged. (Emphasis added.)' Instruction No. 3, given at the request of the defendant, informed the jury: “Your verdict must be for the defendant unless you believe that plaintiff sustained damage from explosions occurring after January 5, 1971.” The court also gave Instruction No. 4, the damage instruction (MAI 4.02). This instruction did not specify any date, but told the jury that if the issues were found in favor of the plaintiff, then it must award “such sum as you may find from the evidence to be the difference between the fair market value of the property . . . before it was damaged and its fair market value after it was damaged.”

The jury returned a verdict in favor of the plaintiff, Goodwin, in the amount of $5,000.00. The defendant Groves Company duly appealed. On this appeal, defendant raises one point.

It contends that the trial court erred in giving Instruction No. 4 (MAI 4.02) “because the evidence revealed two separate occurrences which may have caused plaintiff’s damage [defendant being liable for only one] and Instruction No. 4 does not limit the assessment of damages to that one occurrence.” In expanding on this point, defendant argues (1) that there was some evidence from which the jury could have found that part of the damage to the plaintiff’s home occurred in December, 1970, when two explosions took place near the property of the plaintiff, (2) that in situations under MAI 4.01 where more than one “occurrence” could account for the damages to the plaintiff, MAI 4.01 must be modified to substitute some descriptive term which will properly limit the jury to the occurrence produced by the defendant; therefore MAI 4.02 in similar situations must likewise be modified, and (3) that MAI 4.02 must be modified in such situations even though a verdict director limits the jury’s consideration to the particular occurrence for which he seeks damage to his property.

Defendant relies on several decisions decided under MAI 4.01. Russell v. Terminal Railroad Ass’n of St Louis, 501 S.W.2d 843 (Mo. banc 1973) [personal injury]; Vest v. City National Bank and Trust Company, 470 S.W.2d 518 (Mo.1971) [malpractice], and Miller v. American Insurance Company, 439 S.W.2d 238 (Mo.App.1969) [property damage]. See also Jurgeson v. Romine, 442 S.W.2d 176 (Mo.App.1969), and Homm v. Oakes, 453 S.W.2d 679 (Mo.App.1970). In these decisions it was held that where the jury could believe that injuries or damage were produced by several occurrences or where two or more occurrences combine, either one of which could have produced an injury for only one of which the defendant is liable, the damage instruction MAI 4.01 must be modified in accordance with the Notes on Use so as to limit the jury to a consideration of the results of the specific occurrence for which defendant was liable in determining the amount of compensation to award plaintiff. Failure to so modify is error. And this is true even though a defendant’s verdict director limits the jury’s consideration to the occurrence for which the defendant may be held liable. Russell v. Terminal Railroad Ass’n of St. Louis, supra, 501 S.W.2d at 848.

Defendant argues therefore that where there is evidence of one or more occurrences, singly or in combination which occasion property damage to the plaintiff, the damage instruction MAI 4.02 must also be modified as required under MAI 4.01.

It is, of course, true that a plaintiff may not recover damages to his property which occurred prior to the purchase unless that right has been assigned. 92 C.J.S. Vendor and Purchaser § 318b(2), p. 209 (1955); Hoffmann v. City of Columbia, 76 Mo.App. 553 (1898).

“If the injury may have resulted from one of two causes, for one of which, and not the other, the defendant is liable, the plaintiff must show with reasonable certainty that the cause for which the defendant is liable produced the result; and, if the evidence leaves it to conjecture, the plaintiff must fail in his action.” Warner v. St. Louis & M. R. R. Co., 178 Mo. 125, 77 S.W. 67, 70 (1903), quoted in Miller v. American Insurance Company, supra, 439 S.W.2d at 240.

We hold, however, that, under the facts of this case, the trial court did not err in giving the damage Instruction No. 4, MAI 4.02, without modification, and hence affirm the judgment.

First, we perceive some differences between MAI 4.01 and MAI 4.02, MAI 4.01 [personal injuries and property damage] is framed in terms of damages suffered as a “direct result of the occurrence mentioned in the evidence.” Obviously, if the evidence reveals several occurrences which may have caused damage, the Notes on Use properly require a modification in order to substitute some descriptive term which will properly limit the jury to the occurrence produced by the defendant. This is the thrust of the holdings relied upon by the defendant— Russell, Vest, Miller, Jurgeson and Homm.

But MAI 4.02 is not framed in terms of damages suffered as a direct result of the occurrence (it does not use the word “occurrence”) but rather it is framed in terms of the difference between the fair market value before and after the property was damaged. It is significant that there is no such requirement of modification in the Notes on Use as exists in the Notes under MAI 4.01. If the evidence shows multiple causation, the precise damages for.which the defendant may be held liable may be explained to the jury in other instructions so that the jury is limited to a consideration of the damage suffered for which the defendant may be liable.

We cannot say that the trial court erred in giving Instruction No. 4 without modification especially in view of the admonition of Rule 70.01(b), V.A.M.R., that where an MAI instruction is applicable, it shall be given to the exclusion of all others.

Second, even if it could be argued that MAI 4.02 should be modified in a particular multiple causation case, we are convinced that under the facts here, the trial court did not err in giving Instruction No. 4. The plaintiff’s verdict director, Instruction No. 2, informed the jury that the verdict must be for the plaintiff “if you believe: First, defendant exploded . . . explosives after January 5, 1971 and Second, as a direct result of such explosion, plaintiff was damaged.” (Emphasis added.) The defendant’s converse also told the .jury that the verdict must be for the defendant “unless you believe that plaintiff sustained damage from explosions occurring after January 5,1971.” Instructions Nos. 2 and 3 therefore limited the incidents to those occurring after the plaintiff purchased the property.

Before reversible error can be predicated on the giving of MAI 4.02, the defendant need show that it was a misdirection under all the evidence and the other instructions. It is axiomatic that all the instructions are to be read together. We believe that when the instructions are read together the jury could not have been misled. Instructions Nos. 2 and 3 limited the plaintiff to recovery for injuries sustained after January 5, 1971; each instruction specified a time. When the instructions are read together we believe that the jury was limited to those- damages occurring after January 5, 1971, the date the plaintiff purchased his property, thus .precluding the jury from awarding damages which may have occurred prior to that date. Under these circumstances, therefore, we do not believe .the jury could have been misled and was not authorized to award damages for explosions which occurred in December, 1970.

None of the decisions relied upon by the defendant is factually or legally identical to the issue here. None of the decisions indicates that the plaintiff’s verdict director and the defendant’s converse set out a specific period of time for which the defendant was liable for damage. Defendant places principal reliance on Bussell v. Terminal Railroad Ass’n of St. Louis, supra. There are significant differences between the instructions given in Russell and those in the case at bar. In Russell, plaintiff’s verdict director did not limit liability to a specific occurrence. Instead plaintiff argued that defendant’s verdict director supplied the deficiency. In the case at bar, plaintiff’s verdict- director limited defendant’s possible liability to blasts occurring after January 5, 1971, the date plaintiff purchased the property.

Also, Russell dealt with MAI 4.01, “Measure of Damages — Personal and Property,” whose “Notes on Use” require the litigants to “substitute some descriptive term which will properly limit the jury to the occurrence produced by defendant.” A continuing theme of cases on this issue is based in large measure on the admonition in MAI that the Notes on Use “must be followed.”

See, e. g., Homm v. Oakes, supra, 453 S.W.2d at 681, and cases cited therein. The case at bar deals with MAI 4.02, “Measure of Damages — Property Only.” There are no “Notes on Use” relating to separate occurrences that must be “religiously followed.”

Therefore, under all the evidence and the instructions given, we cannot conclude that the trial court erred in giving Instruction No. 4.

Third, we believe that the decisions relied upon by the defendant are not dispositive of the issue here. This cause is more akin to Kelso v. C. B. K. Agronomics, Inc., supra. There plaintiffs, owners of farm real estate, sought damages to their farms as a result of flooding allegedly caused by the construction of a concrete structure used as a bridge. A damage instruction — MAI 4.02— was given. The defendant claimed that the instruction did not advise the jury how the damages were to be apportioned among the various causes of flooding. Defendant claimed that there were two or more causes of damage suffered by the plaintiffs and the jury was not properly instructed so as to isolate the damages from each cause. Defendant relied on Vest v. City National Bank and Trust Company, supra, and Miller v. American Insurance Company, supra, which held that the word “occurrence” in MAI 4.01 was error where there were two occurrences for only one of which the defendant would be held liable. The Kansas City District in Kelso held that the giving of MAI 4.02 was not error under the circumstances. The plaintiff’s evidence'was such that recurring floods had never, prior to the construction, caused the damages now complained of. The court went on to state that it was apparent that a flood would cause some damage, but that the plaintiff’s evidence on the causation factor of the damages claimed was confined to the cause mentioned.

So too in this case. The theory upon which the plaintiff’s case was tried was that there was damage to the plaintiff’s home as a result of the explosions in March, 1971, rather than in December, 1970. The expert witness for the plaintiff testified in answer to a hypothetical question that the damages were caused from the March explosions. The daughter-in-law of plaintiff’s wife testified that immediately after one explosion in March, while she was cleaning the living room, a crack was noticed in the mantle of the fireplace. The neighbors, except one, noticed cracks in March, April or May, 1971. Mrs. Goodwin, who was not married to plaintiff until April, 1971, while cleaning the house in March and on the day of one of the explosions in March, noticed the fireplace was cracked. The plaintiff testified that on one occasion in March he was knocked to the ground. The plaintiff examined the home fairly carefully before he purchased it in January, 1971. The damages were found to exist after the explosions in March. Witnesses for the plaintiff indicated that the damage to the fireplace, porch and other parts of the house took place in March, 1971. The defendant’s expert witness testified as to the explosions in March that he didn’t “think it would” cause damage to plaintiff’s house.

From all the evidence, we believe it to be sufficiently clear that the damages to the plaintiff’s house were caused by the explosions which occurred after January, 1971, and that this does not present a situation as in Russell v. Terminal Railroad Ass’n of St. Louis, supra.

For the foregoing reasons, we hold that the trial court did not err in these circumstances in giving Instruction No. 4, and we therefore affirm the judgment.

The judgment is affirmed.

McMILLIAN and GUNN, JJ., concur.

      . ' INSTRUCTION NO. 4: “If you find the issues in favor of plaintiff, then you must award the plaintiff such sum as you may find from the evidence to be the difference between the fair market value of the property in evidence before it was damaged and its fair market value after it was damaged.”

      . INSTRUCTION NO. 2: “Your verdict must be for plaintiff if you believe: First, defendant exploded ammonium nitrate and other high explosives after January 5, 1971 and Second, as a direct result of such explo- - sion, plaintiff was damaged.” (Emphasis added.)

      . It is to be noted that the Notes on Use under MAI 4.01 require a modification where there is evidence that two different occurrences produced the injury with defendant being responsible for only one. “In such cases counsel will need to substitute some descriptive term which will properly limit the jury to the occurrence produced by defendant.” Notes on Use to MAI 4.01. There is no comparable language in MAI 4.02, Measure of Damages — Property Only.

      . In Kelso v. C. B. K. Agronomics, Inc., 510 S.W:2d 709, 726 (Mo.App. 1974), the Kansas City District stated that MAI 4.02 does not use the word “occurrence” and then said:
      “The fact remains, however, that this instruction, MAI 4.02, is the only instruction which states the rule for permanent damage to real property under the existing case law. . . . What has been said thus far is not intended as an expression of approval of the use of MAI 4.02 in any negligence case where an issue of multiple causation, in fact, exists. It would appear that in such cases MAI 4.02 should be so modified as to require the jury by its findings to separate or apportion the damages directly resulting from the negligence of the defendant.”


author: GUNN, Judge.

text:
    SOUTH SIDE PLUMBING CO., Plaintiff, v. Elmer H. TIGGES et al., Defendants. Oliver J. PELLOM d/b/a Oliver J. Pellom Real Estate Co., Defendant-Plaintiff-Respondent, v. Elmer H. TIGGES and Pearl L. Tigges, Defendants-Appellants.
    No. 36079.
    Missouri Court of Appeals, St. Louis District, Division Three.
    July 1, 1975.

      Harry J. Nichols, St. Louis, for appellant.
    Edward D. Weakley, St. Louis, for respondent.
    Joseph J. Becker, John R. Boyce, Clayton, for defendants.
   GUNN, Judge.

Defendants-appellants Elmer H. Tigges and Pearl L. Tigges have appealed from a money judgment in favor of plaintiff-respondent Oliver Pellom for construction costs and contractor’s fees arising out of the construction of the Tigges’ home in St. Louis County and the impression of a mechanics’ lien on the Tigges’ property for the payment of the money judgment

The issues which we consider on appeal as framed by the points raised by the Tigges and preserved for appeal are: 1) whether the judgment of the court-tried case is supported by substantial evidence; 2) whether the trial court erroneously permitted the alteration of a written construction contract in violation of the parol evidence rule. We find these issues in favor of the Tigges and reverse the judgment.

This case began with the filing of an equitable mechanics’ lien petition by South Side Plumbing Company against the Tigges and Pellom and several other defendants arising out of the construction of the Tigges’ home. Answers and cross-bills were filed, including a cross-bill by Pellom against the Tigges. Settlement and disposition has been made of all issues arising out of the original mechanics’ lien petition and cross-bills except those between Pellom and the Tigges. Their dispute is now left for our consideration and determination.

Pellom, whose business is residential construction and real estate sales, and the Tigges had been social friends for many years. The first step toward the termination of that friendship was taken when the Tigges requested Pellom to build a new home for them. According to Pellom, he and the Tigges entered into an oral agreement whereby Pellom was to serve as general contractor in the construction of the Tigges’ house. For his services as general contractor, Pellom was to be paid the customary fee of 10 percent of the total construction costs. Construction bids were received and architectural plans secured with the original cost of construction estimated to be $40,000. Although the Tigges initially indicated to Pellom that they had $18,000 with which to commence construction, as the bills came due, the Tigges did not have funds available for their payment, and Pel-lom arranged for a $20,000 loan for the Tigges with a lending institution. Funds from the $20,000 loan were soon exhausted. Due to construction change orders by the Tigges, total construction costs on the house based on bids had increased from the original estimate of $40,000 to $55,280.15. Pel-lom, once again, arranged for a loan for the Tigges, this time for $34,587.74 with a lending institution. The amount of the loan was placed in escrow. Critical to our determination of this case is the fact that on October 22, 1969, Pellom and the Tigges, along with the lending institution and the escrow agent, signed a construction and disbursing escrow agreement covering the construction of the Tigges’ house. Both the date of the agreement and the agreement itself share equal importance.

Pellom claimed that further change orders by the Tigges boosted the final construction costs from the construction contract cost figure of $55,280.15 to $59,552.28; that, in addition, Pellom was to receive a 10 percent commission on the total construction cost, or $5,955.23. Pellom acknowledged that $1,000 of his fee had been paid out of the escrow agreement leaving a balance due him for his fee of $4,955.23, plus increased construction costs above the construction agreement based on the change work orders. It is important.to note that according to the testimony of the contractors and Pellom all of the changes ordered by the Tigges took place before October 22, 1969, the date of the agreement. Over objection of the Tigges’ attorney, Pellom presented evidence of various subcontractors and his own testimony that costs of construction due to change work orders of the Tigges had increased the total construction cost of the house above the $55,280.15 as contained in the construction agreement. The testimony as to Pellom’s contractor’s fee was that at the time of the execution of the construction agreement on October 22 Pellom advised the escrow agent that he “had a 10% fee coming in there”, indicating that his 10 percent construction fee was included in the total construction price of $55,280.15. Later in his testimony, Pellom contended that the construction agreement did not reflect his 10 percent fee. The basis of the Tigges’ objection to Pellom’s testimony and that presented by the subcontractors was that it represented an attempt to vary a written contract by parol evidence in violation of the parol evidence rule. The trial court overruled the Tigges’ objection and entered a judgment for Pellom for $10,-230.38 with $4,955.23 of the judgment representing the balance due on Pellom’s fee and the remainder owing on increased construction costs due to the change work orders.

Before reaching the merits of the case, we comment on the argument raised by Pellom that the Tigges have not preserved their points of alleged error in their motion for new trial; that, therefore, we may not consider the Tigges’ appeal. We reject Pellom’s argument that deficiencies in the Tigges’ motion for new trial preclude us from considering the appeal. No motion for new trial is necessary for appellate review of a court-tried case. Timmerman v. Ankrom, 487 S.W.2d 567 (Mo.1972); March v. Gerstenschlager, 436 S.W.2d 6 (Mo.1969); Bussell v. Russell, 427 S.W.2d 471 (Mo.1968). As stated by Judge Laurance M. Hyde in Journal of the Missouri Bar, Vol. 26, No. 2, p. 72:

. . [A] court-tried case is not determined on appeal on allegations of error as a jury-tried case is. Instead, it is determined de novo on the facts and applicable law, with the appellate court having full authority to make its own findings of fact on the evidence that was or should have been considered by the trial court.”

Judge Hyde also noted, as an exception, that in the event a motion for a new trial were to be filed (even though not necessary) a constitutional question urged on appeal should be included in the motion to preserve the question on appeal. But that situation is not before us. The issue as to the need for a motion for new trial has been further clarified by the recently adopted Rule 73.01, subd. 2(b), V.A.M.R. It' provides that: “Neither a motion for new trial nor a motion to amend the judgment is necessary to preserve any matter for appellate review” in court-tried cases. Despite any deficiencies in the allegations stated in the Tigges’ motion for new trial, we shall determine the case on the merits in light of our understanding that a motion for new trial is not necessary to preserve matters for review. McIntosh v. Frisinger, 507 S.W.2d 419, 425 (Mo.App.1974). As a motion for new trial need not be made at all, the filing of one which is imperfect should not prejudice the appellant’s position on appeal.

We find that the controversy centers on the issue of whether the construction agreement of October 22, 1969 contains the complete agreement for the construction of the Tigges’ house and whether the terms of that agreement may be varied by parol evidence on Pellom’s behalf. The pertinent provisions of the contract as executed by the Tigges, Pellom, the lending institution and the escrow agent provide:

a) That the contractor (Pellom) agreed “to fully construct the improvements . according to construction contract, plans and specifications for the contract amount, as shown in Schedule under paragraph 33, with all claims for labor and materials paid in full, free and clear from mechanics and materialmens liens b) The construction contract amount as contained in the Schedule under paragraph 33 was shown to be $55,280.15, less $18,555.24 prepaid.
c) “That no changes in or additions to the plans, specifications and construction contract under which this escrow is established shall be made without the written approval of all parties.”
d) “That this agreement . . . shall comprise the entire agreement among the parties hereto. Any oral or written agreement between Owner [Tigges] and Contractor [Pellom] not presented to Es-crowee and approved in writing by it, shall be of no force and effect.”
e) The Contractor (Pellom) agreed “to furnish Escrowee with a detailed cost breakdown including names of all subcontractors and material suppliers, the amounts of their contracts, the amount of Contractor’s anticipated profit and all other items for which payments are to be made by Escrowee and to immediately notify Escrowee of any change in said contract amounts or estimated costs.” ■
f) “Not to permit any changes in or additions to said plans, specifications and contraction contract, without written approval of Owner, Mortgagee and Escrow-ee. . . .”
g) “If at any time during the term of this agreement, Escrowee should determine that the construction contract amount is not sufficient to pay all costs incidental to the performance of the construction contract, the Contractor will, within seven (7) days after demand by Escrowee, deposit with Escrowee such additional funds as are necessary to pay such costs.”
h) “To request payment of no portion of his profit until all costs of construction of improvements have been paid in full and the improvements have been accepted by Owner.”
i) The owner (Tigges) agreed “to pay, or cause to be paid to Escrowee, all funds shown in Schedule under paragraph 33, all funds required for all extras hereafter authorized, and all funds for payment of all other items required under this agreement.”

The only evidence as to any change orders authorized by the Tigges as testified to by Pellom and the subcontractors occurred pri- or to October 22, 1969, the date of the contract. There is no evidence that the Tigges authorized, in accordance with the terms of the contract, any changes other than those contemplated within the contract and for the contract price. It is the Tigges’ position that the construction agreement is a valid contract, containing the entire agreement between the parties; that all prior negotiations and agreements relating to the construction of the house were merged therein; that any changes in accordance with the terms of the contract had to have been in writing signed by the parties; and that testimony admitted by the trial court as to costs outside the provisions of the contract constituted an alteration of the written contract in violation oí the parol evidence rule. The question of whether the trial court erred in admitting testimony is a matter of law on appeal. Simpson v. Terminal R.R. Ass’n of St Louis, 357 S.W.2d 65 (Mo.1962). We find that it was error for the court in this instance to have admitted testimony which varied the terms of the construction contract.

Under the parol evidence rule, evidence of prior or contemporaneous agreements which varies or contradicts the terms of a written instrument is not admissible absent fraud, accident, or mistake. But the rule is applicable only where the instrument is a complete integration of the parties’ agreement and is unambiguous. Carroll v. Hahn, 498 S.W.2d 602 (Mo.App.1973); Freeman Contracting Co. v. Lefferdink, 419 S.W.2d 266, 274 (Mo.App.1967); Hardin v. Ray, 404 S.W.2d 764 (Mo.App.1966); Bittner v. Crown Shoe Mfg. Co., 340 S.W.2d 142 (Mo.App.1960). Where as here the agreement provides that the document plus any additional documents identified thereunder “shall comprise the entire agreement among the parties hereto” it is the intention of the parties on the face of the agreement to create a complete and integrated contract. Parol evidence of a prior oral agreement will not be admitted to modify or contradict the unambiguous terms of a written contract purporting to incorporate the whole agreement between the parties. Dutcher v. Harker, 377 S.W.2d 140 (Mo.App.1964). Prior and contemporaneous agreements are merged into the written agreement which operates in discharge and substitution of those agreements when such is, as here, manifestly the parties’ intention. Dill v. Poindexter Tile Co., 451 S.W.2d 365, 370 (Mo.App.1970); Hardin v. Ray, supra. Testimony concerning a prior or contemporaneous agreement, if consistent with the writing, may supplement a writing incomplete on its face, but should not, in any case, be permitted to vary or contradict the writing. Modine Mfg. Co. v. Carlock, 510 S.W.2d 462 (Mo.1974); Garden Park Homes Corp. v. Martin Marietta Corp., 507 S.W.2d 368 (Mo.1974); Beuc v. Morrissey, 463 S.W.2d 851, 853-4 (Mo. banc 1971); Freeman Contracting Co. v. Lefferdink, supra at 274-5. The parol evidence in controversy here clearly interferes with the terms of the written contract and adds to its written obligations.

Thus, the unambiguous written document stating that its terms incorporated the entire agreement of its parties subject to subsequent written modification (and there were no written modifications) signed by the parties bars testimony as to Pellom’s contentions that he should be allowed to prove that the construction contract amount was greater than $55,280.15 because such amount: 1) did not include his 10 percent fee, 2) reflected only estimates and not final bills, and 3) did not reflect extra costs ordered by Tigges. The party offering testimony has the burden of establishing its admissibility. Liebow v. Jones Store Co., 303 S.W.2d 660 (Mo.1957). Pel-lom did not establish the admissibility of the parol evidence offered here.

Even if the parol evidence rule were not applicable here, Pellom, who as plaintiff has the burden of proof, did not bear his burden. The plaintiff must establish his case by substantial evidence of probative value or by inferences reasonably drawn from the evidence. Farnham v. Boone, 431 S.W.2d 154 (Mo.1968); Hancock v. Light, 435 S.W.2d 695 (Mo.App.1968). Pellom did not. In his first contention, Pellom states that he told the escrow agent at the time of the execution of the agreement that the $55,280.15 did not reflect his 10 percent fee. This is the only evidence given to support his contention. On the other hand, Pellom at another point in his testimony stated that he “had a ten percent fee coming in there.” (emphasis added, referring to the “construction contract amount.”) Further, Pellom applied to and received from escrowee $1,000 of his fee. In addition to this being in violation of express terms of the agreement, Pellom’s conduct is an admission that he expected to be paid from the escrowee’s fund. See Grissum v. Reesman, 505 S.W.2d 81 (Mo.1974). The contract also contains Pellom’s covenant that he would furnish escrowee the amount of his anticipated profit if such payments were to be made by the escrowee.

Pellom secondly alleges that the construction contract amount was an estimate and did not reflect final bills. Although Pellom testified that he told the escrow agent that the figures were not final, there was nothing in the agreement nor any addendum to the agreement to that effect. Pellom also covenanted to immediately notify the escrow agent of any change in contract amounts or estimated costs and agreed that no payments would be authorized in excess of estimated cost as represented to escrow-ee. Pellom had all the estimates for materials and labor by the time the agreement was signed on October 22, 1969 and expected to hold the subcontractors to that work. He testified that if the subcontractors’ bids were accepted they weré obligated to do the work at the price bid. Pellom presented absolutely no evidence as to the difference between the estimates and final bills in order to ascertain the Tigges’ alleged liability nor explain why he did not hold the subcontractors to their estimates except to say that the Tigges authorized the extra work.

Finally, to account for the cost overrun over the construction contract amount, Pel-lom alleges that the agreed amount did not include the cost of all the changes and extra work ordered by Mr. Tigges. Pellom listed a description of all the changes made by Tigges after construction began but before the agreement was signed on October 22, 1969. Pellom offered no explanation why these costs, having been incorporated into the building prior to contract date, were not reflected in the contract price. Further, when the Tigges’ counsel tried to determine precisely the amount of the changes and extra work Pellom replied: “I don’t have those figures”; “I can’t tell you definitely the amount in dollars and cents”; “I couldn’t give it to you until I got my bills.” Pellom never brought in his bills. We have no indication of the cost of the extras, separated from the originally estimated cost of the work contracted. Under these circumstances, it must be said that the contractor has failed to make his case. Tigges cannot be held liable for the difference between Pellom’s cost figure of over $65,500 and the contract amount of $55,280.15 in the absence of proof.

We review this court-tried case on both the law and the evidence in the record, de novo. The Court of Appeals makes its own independent findings of fact but will not set aside a judgment unless it is clearly erroneous, having given due regard to the trial judge’s advantage in determining the credibility of witnesses and deferring to the trial court’s findings on conflict-. ing evidence. Menos v. Hodges, 499 S.W.2d 427 (Mo.1973); R. L. S. v. J. E. S., 522 S.W.2d 5 (Mo.App.1975); Johnson County Post No. 2513, V. F. W., Inc. v. Jackson, 519 S.W.2d 335 (Mo.App.1975). In making its de novo review, the reviewing court will consider that evidence it deems admissible and will exclude from consideration improperly admitted evidence. Menos v. Hodges, supra; Martin v. Norton, 497 S.W.2d 164 (Mo.1973). Having excluded from our review all improperly admitted parol evidence, we find that there is no conflict in the record. Where, as here, the only admissible evidence was documentary, the issue of witness credibility does not arise. In re Estate of Wintermann, 492 S.W.2d 763 (Mo.1973); Delany v. St. Louis Union Trust Co., 518 S.W.2d 7Ó4 (Mo.App.1974). We only determine the legal effect of the documentary evidence — the construction and disbursing escrow agreement — which, being a matter of law, is reviewable by the Court of Appeals. Willis v. Robinson, 291 Mo. 650, 237 S.W. 1030 (1922); Idalia Realty & Development Co. v. Norman’s Southeastern Ry. Co., 219 S.W. 923 (Mo.1920); Hay v. Bankers’ Life Co., 207 Mo.App. 277, 231 S.W. 1035 (1921). We find that the $55,-280.15 construction contract amount stated the whole and complete agreement between the parties and was never modified in any way specified or allowed by the contract.

A final, ancillary matter is the Tigges’ claim that the trial court erred in failing to allow them set-offs and damages due to faulty and defective workmanship by Pellom. However, the Tigges made no mention of this claim in their pleadings and did not ask the trial court for relief on this issue. An issue not pleaded, proved nor even alleged in any motion for new trial at trial may not be raised for the first time on appeal. Starman v. John Wolfe, Inc., 490 S.W.2d 377 (Mo.App.1973). We will not review a legal proposition not presented to or expressly decided by the trial court. Stahlheber v. American Cyanamid Co., 451 S.W.2d 48 (Mo.1970); Ahlgren v. Colvin-Weber Realty & Investment Co., Inc., 507 S.W.2d 686 (Mo.App.1974). We therefore decide against the Tigges on this point.

We find that the construction contract embodies the complete agreement of the parties for the costs of construction of the Tigges’ house, including Pellom’s contractor’s fee. The amount of the contract was' $55,280.15. The judgment of the trial court awarding Pellom $10,230.38, representing fees owed of $4,955.23 based on total construction costs of $59,552.28, and the balance for additional construction costs, is reversed.

SIMEONE, P. J., and McMILLIAN, J., concur.

      . Mr. Tigges is now deceased.

      . Adopted March 29, 1974, effective January 1, 1975.

      . As previously noted, Pellom his fee.' acknowledged receipt of payment of $1,000'toward


author: SWOFFORD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Jimmy Dale PURVIS, Appellant.
    No. KCD 27364.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.

      William G. Mays, II, Public Defender, Columbia, for appellant.
    John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special JJ.
   SWOFFORD, Presiding Judge.

Appellant was convicted by a jury of the crime of arson under Section 560.025- RSMo 1969, V.A.M.S. He was tried under the Second Offender Act and was sentenced by the court below to three years imprisonment.

On July 14,1973, at approximately 2:30 a. m., firemen responded to the scene of a burning fraternity house in Columbia, Missouri. The building was unoccupied at the time, and the origin of the fire was determined to have been in a smoldering mattress in a bedroom on the east side of the second floor and not to be the product of natural causes. At this time, the appellant (hereinafter referred to as “defendant”) was on probation from, a previous conviction of arson, upon a plea of guilty in the Circuit Court of Cooper County,. Missouri and was voluntarily under the care of the Mid-Missouri Mental Health Center (hereinafter referred to as “Center”).

On July 18, 1973, the defendant gave a written statement to one Carroll Highbar-ger, a police officer of Columbia assigned to the office of the prosecuting attorney of Boone County. In this document the defendant stated that on July 13,1973, he had left the Center at about 8:00 p. m., walked to the fraternity house at 601 East Rollins, gained admittance through an unlocked rear door, and had set fire to some paper in a cardboard box, which box was resting on a mattress in a second floor bedroom on the .east side of the house. The defendant recounted that after the contents of the box and the mattress were burning, he left the bedroom, went into the hallway, and started down the steps. He then decided that he “didn’t really want the place to burn” and took a fire extinguisher from the wall, went back to bedroom and put out the fire. He then placed the extinguisher on the floor, left the premises, went back to the Center to his room, and stayed there the rest of the night.

A motion to suppress this confession was filed and an evidentiary hearing had thereon prior to trial. The trial court overruled the motion and the confession was admitted into evidence and read to the jury.

The first point raised by defendant is a broadside charge that he was deprived of a fair trial by reason of the state’s failure to comply with Section 320.230 RSMo 1969 (Laws 1972), relating to the performance of investigations by the State Fire Marshal of fires where arson is suspected. This point has not been properly preserved for review since it does not conform to Rule 84.04(d), V.A.M.R., made applicable to criminal appeals by Rule 28.18, in that the point does not state “what actions or rulings of the court are sought to be reviewed” and “wherein and why they are claimed to be erroneous”. State v. Carr, 499 S.W.2d 788, 790[3] (Mo.1973).

Such procedural deficiencies aside, however, it may be gleaned from the argument portion of defendant’s brief that the thrust of his complaint is that the State Fire Marshal did in fact investigate the fire here involved in February of 1974, some six months after the event; did make a report, and that such report was inconclusive as to the cause of the fire. He asserts that it was the ethical duty of the state to furnish him a copy of this report, which he interprets as exculpatory and tending to negate the possibility of his guilt.

This argument loses all impact upon this appeal because the record is completely silent as to any such investigation or report, except the allegations contained in the defendant’s unverified motion for a new trial. Therefore, by any process of reasoning, this argument distills into the proposition that the trial court erred and abused its discretion in overruling the defendant’s motion for a new trial upon the ground of newly discovered evidence, i. e., the State Fire Marshal’s purported investigation and report. Yet, as a part of or at the hearing on the motion for a new trial, the defendant offered no evidence of any kind in support of this allegation in his motion. “It is a clearly established rule that unverified allegations in a new trial motion do not prove themselves.” State v. Underwood, 470 S.W.2d 485, 487[5] (Mo.1971); State v. Lay, 427 S.W.2d 394, 402[6] (Mo.1968).

Also contained in defendant’s argument on his first point is the charge that the court erred in admitting the testimony of Joe Bryson, Battalion Chief of the Columbia, Missouri Fire Department, as to the cause of the fire here involved. The basis for this claimed error is that Bryson was not shown to be a qualified expert as contemplated by Section 320.230 RSMo 1969 (Laws, 1972). The record is clear that Bry-son was, in fact, shown by experience and education to be a qualified expert, and his testimony was properly received. However, this point of alleged error is not properly presented for review in defendant’s “Points Relied On”, as required by Rule 84.04(d). Defendant’s first point is ruled against him.

The defendant’s second point is that the court erred “in failing to declare a mistrial upon defendant’s objection to statements made by the state in closing argument”. This point also fails to comply with the standards of Rule 84.04(d) and could be disregarded. However, it is wholly without merit.

The defense postulated by defendant was that of alibi. Through other witnesses (he did not testify), he sought to establish that he was physically present at the Center at the time the fire was set. He asserts that in closing argument the prosecuting attorney sought to place the burden upon him to prove his innocence. Of course, as a fixed and definite principle of criminal law, no burden rested upon the defendant to prove his innocence, and a jury argument permitted over proper objection to that effect would be reversible error, even though as a general rule the scope of permissible jury argument rests largely within the discretion of the trial court. State v. Schlagel, 490 S.W.2d 81, 85—86[5] (Mo.1973).

The exact portion of the prosecutor’s argument toward which this point is aimed is not made clear in defendant’s brief, either in his statement of facts or his argument under Point II. Since his point relates to the “state’s closing argument” and relates to burden of proof, it is assumed that the following trial incident is the basis for this alleged error:

(The Prosecuting Attorney discussing the testimony of the alibi witnesses):

“ * * * Even if you assume they’re all exactly on the nose on their times, there are still times when Jimmy Purvis could have left (the Center) and there is no proof he didn’t leave. The defense has produced absolutely no proof he did not leave—
MR. MAYS: (Defense counsel) The burden is not on the defendant.
THE COURT: Sustained. Jury will disregard counsel’s last comment.” (Material in parenthesis and emphasis supplied)

It thus is clear that defense counsel’s objection (if his statement above quoted is to be considered as an objection) was sustained and the jury was instructed to disregard the prosecutor’s remarks. No request for further action or for a mistrial was made by defense counsel. Defendant received more relief from the trial court than he sought. Error does not appear and cannot be predicated upon this record. State v. Woodard, 499 S.W.2d 553, 559-560[13, 14] (Mo.App.1973); State v. Baity, 494 S.W.2d 425, 429[13, 14] (Mo.App.1973).

Defendant’s third point on appeal attacks the admission of his confession on three separate grounds, A) the initial statement (oral) was illegally obtained and the subsequent statement (written) was tainted by it; B) the state failed to show that the defendant made a knowing and intelligent waiver of his constitutional rights; and C) the statements were not voluntarily made. Points B and C have not been preserved for review since neither was specified in defendant’s motion for a new trial nor otherwise urged upon the trial court. To the contrary, during the arguments on the new trial motion, the transcript discloses the following colloquy:

“THE COURT: Mr. Mays (counsel for defendant), let me ask you this question, because this does basically involve a question of whether as a result of one statement which you contend was illegally— you’re making no contention the statement taken by Mr. Highbarger was improperly taken, are you?
MR. MAYS: No.
THE COURT: Your contention is that it is the fruit of the poisonous tree, is it not?
MR. MAYS: Yes, sir.”

The defendant’s position, therefore, is that his initial inculpatory statements to Valentine and Forlow were obtained illegally and, therefore, the subsequent formal confession to Highbarger was tainted thereby. The gist of his argument is that the locale of the initial interview and the presence of his probation officer, Forlow, made the interrogation “in-custodial”, accusatory rather than investigatory in nature, and, therefore, required the giving of a Miranda warning. There is no dispute that such warning was not given at the initial meeting.

The resolution of this problem requires a brief summary of the facts and circumstances giving rise to defendant’s claim.

At the time of these occurrences, as has been heretofore noted, the defendant was on probation from a former conviction of arson. His then probation officer was one Arthur Forlow. The defendant was a voluntary patient at the Center and had previously received treatment at Reality House in Columbia, a rehabilitative institution for probationers and parolees, supported in part by grants from the national government through the Law Enforcement Assistance Administration. While the evidence presents some conflict on this point, there was ample evidence from which the jury could conclude that the defendant was under- little or no, custodial restraint at the Center.

The fire here involved occurred on the night of July 14, 1973 or early morning of July 15, 1973. On July 16, 1973, one Becky Naderie, a counsellor at Reality House who had worked with the defendant, called Carroll Highbarger, the police officer connected with the prosecutor’s office, and asked him if arson was being considered in connection with the fire and suggested that defendant might possibly have had some connection with it. She also discussed the matter with her coworkers, George Brown and William Valentine.

Valentine testified that a few days later, he contacted Arthur Forlow and that on July 18, 1973, he and Forlow went to the Center to see how the defendant was progressing. Dutton was a psychiatric social worker at the Center. Dutton told Valentine and Forlow that the defendant had mentioned the fire the evening of July 17, 1973. Valentine testified that he, Dutton and Forlow then talked to the defendant, who indicated to them that he had been involved in setting the fire. Valentine then asked the defendant if he wanted to talk to a police officer or someone from the prosecutor’s office. The defendant stated he did so desire.

Forlow’s version of this conversation was that the defendant told them he had set the fire and “wanted to get that off his chest”. He stated that he was empowered as a probation officer to arrest the defendant, but that at no time did he place the defendant under arrest. He further stated that he did not go to the Center to check on a possible probation violation or to specifically talk about the fire; that he did not take an active role in the interviews; and that there was no intimidation or coercion employed by anyone.

After defendant’s admission and expression of desire to talk to a police officer or other official, Valentine called Highbarger, who came to the Center within a few minutes. Another meeting then occurred. Present were Valentine, Forlow, Dutton, Highbarger, the defendant, and his attending physician, Dr. Richard Newman, M.D. Highbarger identified himself to the defendant as a police officer, gave him the full Miranda warning; the defendant stated he understood his rights; and then High-barger interrogated him about the fire in the presence of the others above named. As a result, he wrote out a confession “as Jimmy (defendant) gave it to me”, the defendant initialed each paragraph, and both defendant and Highbarger signed the last page. Highbarger then asked defendant if he would go to the site of the fire and show him what happened. The defendant agreed and he, Valentine and Highbarger went to the fraternity house where the Miranda warning was again given by Highbarger, and the defendant reenacted his activities with reference to the fire.

All of the witnesses, including Dr. Newman, testified there was no coercion or force exerted, or threats made, by anyone to compel the confession and later reenactment.

Defendant relies on Miranda v. Arizona, 384 Ü.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and State v. Williams, 486 S.W.2d 468 (Mo.1972). In Williams, the defendant had been arrested by uniformed police officers, taken to the police station in the early morning, and interrogated by parole officers respecting the commission of a separate offense. A complete Miranda warning was not given, and the court held appellant was questioned (l.c. 473-474):

“in a police department atmosphere after having been deprived of his freedom as a parolee, and after the constructive custody on parole had been transformed into actual physical custody under circumstances involving the ‘inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely,’ thus requiring adequate, effective and full appraisal of his constitutional rights . . ..”

The court below expressly distinguished Williams from the case at bar, and its conclusion was correct. There were none of the “inherently compelling pressures” undermining appellant’s will to resist. From the evidence it may be concluded that appellant’s statement was of the voluntary variety, i. e. he seemed most willing to get the matter “off his chest” and responded without ■ apparent hesitation to what at most was a simple, straightforward inquiry. The record however, is not abundantly clear whether any specific inquiry was ever made at the initial interview or whether defendant’s admission was entirely spontaneous. Thus, it seems that the circumstances which are likely attendant to custodial interrogation were not present, nor does it readily appear that appellant'was indeed in “custody”. He was certainly not formally in custody, and such a brief investigative encounter could not be characterized as in any way depriving him of his freedom of action or choice in any significant way.

Reference is also made by defendant to State v. Evans, 439 S.W.2d 170 (Mo.1969) wherein a suspect was questioned by a police officer while he was in the hospital. In holding that a custodial interrogation' did take place, the court emphasized the existence of sufficient cause to arrest without a warrant, the accusatorial nature of one question, and the' certain deprivation of freedom. None of these factors exist at bar.

This court’s review of such questions is limited to whether there was sufficient evidence to support the lower court’s ruling. State v. Alewine, 474 S.W.2d 848, 852 (Mo.1971); and State v. Stubenrauch, 503 S.W.2d 136 (Mo.App.1973). Given the low-keyed and brief nature of the confrontation, plus the lack of anything but speculation as to guilt (prior to defendant’s admission) as well as appellant’s readiness to confess, the subsequent written confession was properly admitted into evidence.

Defendant’s final point is the claim that the trial court erroneously failed to instruct the jury on the offense of attempted arson, Section 560.035 RSMo 1969. The trial court was not requested to so instruct the jury, but the defendant asserts that the court was required to give this instruction, whether requested to do so or not, under Rule 20 and Rule 26.02(6). Nor does the ‘ point set out in defendant’s brief offer any “ enlightenment as to why the instruction on attempted arson should have been given in this case, and hence also violated Rule 84.-04(d), State v. Watson, 511 S.W.2d 890, 892-893[4, 5] (Mo.App.1974). In any event, the point is. without merit.

As heretofore discussed, the statement of the defendant, together with the testimony of the firemen as to the source of the fire, and the complete absence of any physical evidence of any cause thereof other than defendant’s admitted arso-nous activity, afforded, substantial evidence for the jury to conclude (as it did) that the defendant was guilty of arson, Section 560.-025 RSMo 1969. In this state of the record, there was no room for an instruction on attempted arson. Section 556.160 RSMo 1969, first adopted in 1855 and remaining substantially unchanged, provides in pertinent part:

“When crime committed, punishment for an attempt cannot be inflicted No person shall be convicted of * * * any * * attempt to commit any offense, when it shall appear that the crime intended or the offense attempted was perpetrated by such person * * * in pursuance of such attempt.”

This statute, so far as research discloses, first received the attention of the Supreme Court in State v. White, 35 Mo. 500 (1865) where the defendant was charged with rape and assault with intent to commit rape. The court said, l.c. 501:

“ * * * But, if full faith and credit are to be given to her (prosecutrix’s) statement, then the act was fully consummated, and the jury were not warranted, under our statute, in convicting the defendant of an assault with intent to commit a rape.”

Under the present statutes governing the crime of arson there are no degrees or grading of the felony. A person charged, if convicted, is either guilty of arson (Section 560.025 RSMo 1969) or of attempted arson (Section 560.035 RSMo 1969), and if evidence of arson is before it, the only choices open to a jury are conviction or acquittal for that offense.

The rule first enunciated in State v. White, supra, has remained unchanged in this state for 110 years. State v. McCaffery, 225 Mo. 617, 125 S.W. 468 (1910), arson; State v. Gadwood, 342 Mo. 466, 116 S.W.2d 42, 55-56[17-18] (Mo.1938), murder-felonious assault; State v. Baker, 276 S.W.2d 131,134[4, 5] (Mo.1955), rape; State v. Pigques, 310 S.W.2d 942, 945[1] (Mo. 1958), burglary; State v. Grant, 394 S.W.2d 285, 289-290[10] (Mo.1965), rape; State v. McDaris, 411 S.W.2d 126, 127-128[1] (Mo.1967), rape; and many other decisions.

The defendant seeks to avoid the application of this statutory and decisional principle by reference to that part of his confession in which he recounts the fact that after he had started the fire in the box on the mattress in the east bedroom on the second floor of the house, he experienced a change of heart and abandoned his criminal intent, “I thought that I needed to come back to the hospital and talk my anger out and I didn’t really want the place to burn.” His confession then relates that he obtained the fire extinguisher and “went back to the room and put the fire out.” In this area, two things clearly emerge from the confession and the state’s evidence.

First, defendant’s original intent when he set the fire was that “the place” burn. Second, he did not, in fact, “put the fire out”. At best, he may have delayed its action. The state’s evidence showed that the fire was confined to the east second floor bedroom for a considerable period of time; was a very “hot” fire; burned through a double floor of hard wood, heavy supporting joists, plaster and lath, and finally burst through into other parts of the house, causing extensive damage. While defendant “confessed” that after his change of heart he “put the fire out”, the jury, under this record, could, and did, reject this premise. The weight to be given to this (or any) part of the confession was for the jury. The corpus delicti of the crime with which the defendant stands convicted was clearly established; the criminal act of setting the fire with the intent that “the place” burn, and the defendant’s “agency in the production of that act.” State v. Celmars, 399 S.W.2d 145, 147[1] (Mo.App.1966); State v. Varnell, 316 Mo. 169, 289 S.W. 844, 845[3] (1926).

The question remains as to what affect, if any, his change of heart and attempt to “undo” his crime has upon his responsibility for that crime.

The general rule is thus stated in 22 C.J.S. Criminal Law § 29, p. 99:

“ * * ⅝ If, however, the requisite criminal intent exists at the time of the commission of the act, the crime is committed and a subsequent change of intent will riot relieve the actor of responsibility, since he cannot abandon what he has already done. * ⅞ ~ ”

A refined statement of this principle, applicable in this case, is found in 22 C.J.S. Criminal Law § 37, p. 127, where it is stated:

“One may be guilty of a crime where the prohibited act is committed through the agency of mechanical or chemical means, as by instruments, poison, or powder, and where one puts in force an agency for the commission of a crime, he, in contemplation of the law, accompanies the agency to the point where it becomes effectual.” (Emphasis supplied)

See also: Perkins on Criminal Law, 2nd Edition (1969), Chapter 6, Section 3 — D, pp. 588-591; Hackney v. Commonwealth, 186 Va. 888, 45 S.E.2d 241, 242[2] (1947); Beausoliel v. United States, 71 App.D.C. 111, 107 F.2d 292, 297[17] (1939); Wharton’s, Criminal Law and Procedure (1957), Vol. 1, Section 76, p. 161.

Of interest here is the ancient case of State v. Hayes, 78 Mo. 307 (1883) in which the defendant was convicted of attempted arson. The evidence showed, in substance, that he had arranged to have one McMahan set fire to certain premises which had been saturated with coal oil-by defendant. All plans were made and McMahan was in position to commit the arson. All he lacked was a match, which defendant offered to supply. Defendant did not follow through with his part of the arrangement, but apparently abandoned the scheme, in that he disappeared (ostensibly to obtain the match) and did not return. The fire therefore did not occur, but the defendant was convicted of attempted arson. In affirming the conviction, the court recognized- the doctrine of locus poenitentiae (place of repentance) and said, l.c. 317:

“ * * * Anywhere between the conception of the intent and the overt act toward its commission, there is room for repentance; and the law in its beneficence extends the hand of forgiveness. But when the evil intent is supplemented by the requisite act toward its commission, the statutory offense is completed. ‘A crime once committed may be pardoned, but it cannot be obliterated by repentance.’ 1 Bishop Crim.Law, § 732. * * * ” (Emphasis added)

The logic of this declaration is apparent and was succinctly stated in the case of People v. Claborn, 224 Cal.App.2d 38, 36 Cal.Rptr. 132 (1964). In that case, the defendant was charged with an assault with a dealdy weapon (an automobile), the claim being that he intentionally r,ammed a police vehicle with the automobile he was driving. The defendant argued that since he had laid down 21 feet of skid marks before impact, this demonstrated an abandonment of his criminal intent prior to the commission of the assault and operated as a defense tó the charge. In rejecting this theory, .the court said (36 Cal.Rptr. l.c. 134):.

“ * * * Moreover, even though the skid' marks did indicate a last moment change of intent * * * guilt for the consequences of the force defendant had set in motion was not thereby absolved. Abandonment of intent is only a defense if the attempt to commit the crime is freely and voluntarily abandoned before the act is put in the process of final execution. (People y. Von Hecht, 133 Cal.App.2d 25, 36, 283 P.2d 764.) As stated in 15 American Jurisprudence, section 333, pages 22 — 23: ‘There is in every design or plan to commit a crime a place of repentance or locus poenitentiae whereby the one planning to commit it may abandon the idea and thus avoid criminal liability. * * * It is obvious, however, that where the crime is consummated, there is no field for an application of the doctrine.’ (See also Miller on Criminal Law, p. 100.) * * * ” (Emphasis the Claborn court’s)

The court then quoted from 22 C.J.S. Criminal Law § 37, p. 127, supra, and concluded:

“ * * * This language, applied in a poisoned candy case, has equal application to belated and ineffectual attempts to recontrol the criminally unloosed force which causes the harm. (See People v. Jones, 112 Cal.App. 68, 75, 296 P. 317; People v. Stewart, 97 Cal. 238, 32 P. 8.)” (Emphasis supplied)

See also: LaFave & Scott, Criminal Law, p. 240, § 34 (1st Ed. 1972); Hackney v. Commonwealth, supra.

Since so far as the briefs of the parties and independent research have disclosed, this precise situation has not heretofore been ruled in Missouri, the principles above discussed are adopted as controlling. here. As applied to the case at bar, the defendant’s alleged abandonment of his confessed intention to destroy the fraternity house by arson does not fall within the doctrine of locus poeniténtiae and his “belated and ineffectual attempts to recontrol the criminally unloosed force” which resulted in the fire did not afford him a defense to the charge of arson nor permit him to request nor require the trial court to instruct upon the charge of attempted arson. State v. McDaris, supra, at 128[2] (Mo.1967). The defendant’s final point is ruled against him.

For the reasons herein stated, the judgment is affirmed.

All concur.