author: SHANGLER, Judge.

text:
    STATE of Missouri, Respondent, v. Daniel Lee ALLEN, Appellant.
    No. KCD 27343.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Dec. 8, 1975.

      Willard B. Bunch, Public Defender, Sixteenth Judicial Circuit, Philip H. Schwarz, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ. •
   SHANGLER, Judge.

The defendant was convicted by the court of the second degree murder of Robert Dennis, an infant of 18 months, and was sentenced to a term of imprisonment for 15 years.

At the time of the fatality and before, the defendant had been living with Shirley Dennis and her two children, Carol and Robert. The defendant attended them while she worked the graveyard shift at a local factory. Ms. Dennis was at work in the early morning of February 1, 1973, when the defendant appeared at the Richards-Gebaur Air Force Base Emergency Room with the boy Robert. The receiving physician, Dr. Joel Grossman, found the boy in severe distress with distended abdomen, bruised and contused about the head and face, and burned about the groin and left leg. In this condition, the boy was on the verge of death and was rushed by ambulance to Mercy Hospital, where he died later in the day. After he had delivered the boy to the emergency room at the Air Force Base, the defendant notified Ms. Dennis at her place of employment that the child had been taken to Mercy Hospital and accompanied her there.

At the trial, Dr. Grossman testified that the defendant had told him that the burns on the child had been caused by an electric hair dryer and the bruises from a fall the child had taken down a flight of stairs several days earlier. The doctor considered that the injuries, except for the burns, were consistent with trauma, such as a fall down the stairs, but could not definitely say the nature of the trauma. The bruises had been inflicted at different times; some, perhaps two or three days earlier.

The pathologist, who performed the autopsy, Dr. Fritzlen, described the bruises on the body of the boy and gave his opinion that death resulted from “a severe blunt type force injury to the upper abdomen”. The injury he observed was not caused by falling on the stomach, but from the force of “a rounded object of not particularly large size”, perhaps a human fist, and added that the injuries he found fit the battered child pattern. Dr. Fritzlen estimated that the injury was at least 18 hours old, but not older than 48 hours.

Ms. Dennis had been living with the defendant for about two months. They separated the month preceding the fatality when she discovered he had inflicted bruises on Robert, but they rejoined within days upon his promise that he would not hurt the children again. On the day before the fatality, Ms. Dennis had been home with the children until late evening, until time for work. The boy Robert then appeared in good health except for a slight fever and some old bruises on the stomach, which the defendant led her to believe had been the result of a fall.

The prosecution presented Ms. Chancellor, as a witness, a friend of Ms. Dennis. She had occasion to meet the defendant at the Air Force Base NCO Club in January of 1973 and inquired after Ms. Dennis. The defendant told her she was at home with the children, but that he had to get away for a couple of drinks because “they were driving him up the wall”. During the course of conversation, he told her he had spanked Robert because he would just lie around and bawl without reason.

In evidence, also, was the confession of the defendant taken by the police on the night of February 1, 1973. The statement contained unequivocal admissions that 1) the burns Robert suffered resulted when defendant placed the hair dryer in his diaper; 2) that night he had struck Robert across the cheek with a rubber spatula, and 3) he had struck Robert in the stomach with his fist three or four days before.

The defendant took the stand on his own behalf. At the time of the event for which he stands accused, he was attending college. He struck a liaison with Ms. Dennis, who, with her two children, soon moved into his quarters, with the result that he became babysitter while she worked. He admitted he had occasionally struck Robert to discourage mischievousness, and that on the afternoon before his death, he had struck the boy in the face with a spatula, but not with either the intent or the force to injure. After his return from delivering Ms. Dennis to her place of work that night, he found the children awake. Robert wanted to play with the hair dryer and to feel the air blowing on him, so the defendant inserted the device in his diaper as a means of keeping the dryer away from the sister, Carol, who was attempting to wrest it from the boy. The defendant went into the bedroom momentarily and when he returned saw the boy lying on the floor. He noticed a burn on the groin area, became alarmed, and rushed the child to the Air Force Base Hospital. The defendant acknowledged that he had told the police he had struck Robert with his fist, but contended that this admission was induced and that he actually never did.

The defendant offered evidence by other witnesses that Ms. Dennis was a slatternly, harsh and punitive parent.

The testimony of Ms. Dennis disclosed that she also had been charged with the death of Robert, but that the charge was dismissed after she testified against the defendant at the preliminary hearing. In response to the inquiry at the trial by the prosecutor:

“Now, were any promises or anything made to you, or any discussion with you, in connection with the dismissal of charges against you?”

the witness replied:

“No, sir”.

In response to the cross-examination:

“Didn’t your attorney come and tell you, ‘They are going to dismiss charges against you in return for testimony?’ ”

she answered:

“No, I didn’t know anything about it until after they had already dismissed the charges.”

The witness then attributed these damaging statements to the defendant, made to her during the course of the proceedings:

1. On the morning of February 1, 1973, when the defendant came to her place of employment to tell her the child had been taken to the hospital, he suggested “there would be less trouble if we just told the police that Robbie fell down the steps”. At that time, also, he admitted to her that he had struck the child across the face with a spatula.
2. Later, at the police station, the defendant told her that he had given the electric dryer to the infant for a plaything, but did not mean to harm him. Then, while still at the station, he had told her he was sorry he hurt Robert, but did not mean to hurt him that badly.
3. Finally, after the charges were filed and Ms. Dennis was released from accusation, the defendant called her to say “he was sorry that he did it, that he still cared about me, he didn’t mean to hurt Robbie, and he was sorry”.

The new trial motion of the defendant contended that the prosecutor misled the court by failing to correct the testimony of Ms. Dennis that she had been given no promise in return for her testimony in the prosecution against the defendant.

At the hearing on the motion, Mr. Pee-bles, attorney for Ms. Dennis, acknowledged that he had entered into an understanding with Forge [the prosecutor in charge at that stage of the proceedings] that the charge of murder against Ms. Dennis would be dismissed if she testified on behalf of the State in the prosecution for the same offense against the defendant. Accordingly, Peebles instructed Ms. Dennis to testify at the preliminary hearing, and the charge against her was subsequently dismissed. Peebles did not recall informing Ms. Dennis about the agreement with Forge and did not inform her of the dismissal until it was actually entered.

Forge testified that he had informed Pee-bles that he would recommend dismissal of the charge against Ms. Dennis in return for her testimony. Ms. Dennis, he said, was not present at these discussions and he was not sure if she was aware of the arrangement.

Ms. Dennis testified that she was neither aware of any agreement to dismiss the charge against her for her testimony nor even of the dismissal itself until after it had been entered. The only advice given by her attorney was to tell the truth.

Finally, trial prosecutor Williamson testified that he was not aware of any agreement between Peebles and Forge for the dismissal of the Dennis prosecution. His dismissal of the Dennis charge in the circuit court was prompted by a lack of evidence.

The trial court concluded that, indeed, the prosecution and the Dennis defense had arranged for a dismissal of the charge against her for her testimony against the defendant, but that Ms. Dennis was not aware of the arrangement. The denial of the motion for new trial rested upon the paramount consideration that the basis for the conviction was the testimony given by the defendant himself and his statement to the police. The court found the testimony of Ms. Dennis, in any event, was not critical to the conviction.

On this appeal, the defendant contends that the State owed a duty to correct the testimony of Shirley Dennis — allegedly false — that her evidence was not induced by promises of leniency, and that this lapse by the State affected the determination by the trial court of the credibility of the witness and thus deprived the defendant of a fair trial.

It has been declared by the United States Supreme Court as a matter of constitutional principle that when the reliability of a witness may determine guilt or innocence, the failure of the prosecution to correct false evidence which affects the credibility of the witness is a denial of due process. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); State v. McClain, 498 S.W.2d 798 (Mo. banc 1973). That the silence of the prosecutor was without guile or intent to prejudice does not diminish the force of the rule; if there is reasonable likelihood that the false testimony could have affected the judgment of the trier of fact, a new trial is required. Giglio, supra, 405 U.S. l. c. 153, 92 S.Ct. 763, Napue, supra, 360 U.S. l.c. 271, 79 S.Ct. 1173, McClain, supra, 498 S.W.2d l. c. 800.

The defendant here waived trial by jury, thus it befell the court to assess credibility, believe the facts and determine guilt or innocence. Whether the testimony of Ms. Dennis against the defendant was in consideration of a promised leniency or given without any such expectation bore on the credibility to be accorded the witness by the trier of fact. At the trial, in response to a direct question by the prosecutor, the witness Dennis denied she had been promised dismissal of charges for her testimony. In fact, a prosecutor at an earlier phase of the proceedings had not only concluded such an agreement with counsel for Dennis, but had also given it effect by the discontinuance of the murder charge after she had testified for the State at the preliminary hearing of the defendant. The failure of the prosecution to correct the testimony of the witness amounted to suppression of material evidence on credibility, notwithstanding the trial prosecutor was not aware of the agreement between his predecessor and the Dennis counsel, nor that the denial by the witness of knowledge of such an arrangement was not directly impeached.

The office of prosecutor is integral and binds the sovereign in criminal proceedings no matter through which agent it speaks. A promise to the defense made by one prosecutor is imputable to the State and controls the other prosecutors. Giglio v. United States, supra, 405 U.S. l. c. 154[4], 92 S.Ct. 763; State v. Koonce, 504 S.W.2d 227, 230[2] (Mo.App.1973). And evidence that a prosecutor has agreed with counsel for an accused for leniency in exchange for testimony against another defendant, which he then gives, imports the prior concurrence of the accused. If the testimony of the client denies knowledge of the promise of leniency, the prosecutor owes disclosure of the agreement, the issue becomes one of credibility, and falls within the pale of Giglio, Napue and McClain. See, also, State v. Brooks, 513 S.W.2d 168, 175[14] (Mo.App.1973).

The question remains whether the defendant was denied a fair trial. Otherwise stated, did Ms. Dennis give false evidence and, if so, was there a reasonable likelihood that it affected the judgment of the trier of fact? Giglio, Napue, McClain and cases of that ilk have ordered new trials where the suspect testimony was decisive — and not merely corroborative — on the issue of guilt and where that material evidence of credibility was withheld from the trier of fact. In this case, the defendant waived trial by jury and submitted his cause to the court for determination of the facts and rendition of judgment. On the motion for new trial, disclosure of the agreement for leniency between prosecutor and counsel was made to the court and the knowledge of witness Dennis probed. The court found expressly that Ms. Dennis had no knowledge of the arrangement between her counsel and the prosecutor, and that the witness had not given false testimony. The court concluded that in all but one respect, the testimony of Ms. Dennis was merely corroborative of the testimony and confession given by the defendant, himself, so that Ms. Dennis was not critical to the judgment of conviction entered.

Our review concurs with the finding of the trial court that the testimony of Ms. Dennis was not essential to the conviction, nor, in reasonable likelihood, affected the judgment of the court as finder of fact. The testimony of the witness Dennis that the defendant admitted he had struck the child across the face with a spatula, that he had given the electric hair dryer to the infant as a plaything, that he had hurt the child, were all matters otherwise confessed by the defendant. What remains of her testimony is the suggestion of the defendant that “there would be less trouble if we just told the police Robbie fell down the steps.” Although aspersive of innocence, that imputation is drastically offset by the corroborated admissions and by the confession of the defendant — most damaging of all — that he had struck the child in the stomach with his fist. The judgment of conviction was the result of a fair trial.

The defendant also urges that the trial evidence was insufficient for a conviction of second degree murder. The elements of that offense are a willful, premeditated killing of a human being with malice aforethought. State v. Anderson, 375 S.W.2d 116, 119[2,3] (Mo.1964). The intent to kill is an essential element of murder second degree [State v. Chamineak, 343 S.W.2d 153, 161[13—15] (Mo.1961) and the malice is the intentional commission of the wrongful act without just cause or excuse. State v. Williams, 323 S.W.2d 811, 813[5-8] (Mo.1959). The sense of the contention made by defendant is that there was no evidence of an intent to kill.

The evidence of the pathologist who performed the autopsy was that death resulted from a blunt force to the upper abdomen, such as a blow by a rounded fist, struck with such severity as to rupture the pancreas and to bruise near structures.

The State concedes that the first is not usually considered a deadly weapon, but under these circumstances, the assault by the defendant with his fist manifests an intent to kill. The rule is stated generally [40 C.J.S. Homicide, § 25 p. 876]

A blow with the fist does not ordinarily imply malice although there may be an inference of malice where such an attack has been made on an infant of tender years or on a person enfeebled by old age or worn out by disease.

And [40 Am.Jur.2d, Homicide, § 268, p. 532]

An intent to kill may, under the circumstances of the particular case, be inferred from an assault with the hands where there is great disparity in physical strength and ability as between assailant and victim .

Our decisions are in accord. The conviction of the second degree murder of a six year old child was sustained in State v. Lamborn, 452 S.W.2d 216 (Mo.1970) where the death blows were administered by the hands of the defendant [l. c. 218[1-4]]

It was as much murder for defendant to kill deceased in the manner described in evidence as if she had shot [the child] with a pistol or stabbed her with a knife . Murder may be committed with the hand or fist.

The intent to kill may be inferred from the circumstances. There was sufficient evidence to prove that the defendant struck the child in the abdomen with such force as to cause his death. The testimony of the defendant that he struck the boy in the stomach with his fist and the evidence of the pathologist that the blow was the cause of death support this thesis. Where in an assault one uses a weapon likely to produce death, and death ensues, the actor is presumed to have intended the death. State v. Hammonds, 459 S.W.2d 365, 368[1—4] (Mo.1970).

The judgment is affirmed.

All concur.

      . See, United States ex rel. Dale v. Williams, 459 F.2d 763 (3rd Cir. 1972), for the application of these principles in a court tried case.


source: Caselaw Access Project

author: WASSERSTROM, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Marshall J. GARNER, Appellant.
    No. KCD 27391.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Dec. 8, 1975.

      Gerald M. Handley, Acting Public Defender, Mark D. Johnson, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   WASSERSTROM, Presiding Judge.

Defendant appeals after being convicted of robbery in the first degree by means of a dangerous and deadly weapon and sentenced to twelve years imprisonment.

From the evidence the jury could reasonably find the following facts. At about 1:30 a. m. on January 31,1974, a cab, driven by Mr. Leon Eskina was parked at the cab stand near the Continental Bus Station in downtown Kansas City. A man in civilian clothing approached Eskina, identified himself as a soldier, and arranged to be taken to the airport. Two other men, later identified as defendant Garner and Willie McDowell, overheard their conversation and asked if they could split the fee to the airport. All three got in the cab, defendant and the soldier in the back and McDowell in front.

Shortly thereafter, defendant produced a revolver, held it to Eskina’s neck, asked for his money, and then took money from his shirt pocket and wallet. Next, McDowell, after pulling out a gun, demanded the soldier’s money. A scuffle between McDowell and the soldier ensued; Eskina was ordered to get out of the cab and lie down in the street. After more scuffling and conversation, defendant and McDowell fled, taking the soldier’s coat with them.

Defendant raises two points on appeal. The first charges that the prosecutor’s closing argument went outside the evidence, and the second challenges the admission of certain evidence.

I.

The portion of the closing arguing complained of was as follows:

“ . . . The night this lineup was held the testimony revealed Mr. Eskina identified this defendant, Marshall Garner, and this fellow, Willie McDowell as the two persons that robbed him. Now as I pointed out or brought out yesterday, Willie McDowell has been sitting in this courtroom all during the course of this trial.
“MR. JOHNSON [Defendant’s attorney]: I object to that, your Honor, that is not the evidence.
“MR. DAKOPOLOS: And he was sitting in this courtroom this morning.
“MR. JOHNSON: Your Honor, I will object to continuing this.
“THE COURT: Let’s stay within the record, Counselor.”

In support of his contention that the argument quoted went outside the evidence, defendant urges first that no evidence identified McDowell as one of the robbers. That point is untenable. The evidence shows without dispute that a line-up was conducted at police headquarters three or four hours after the robbery. Defendant and McDowell along with three other men were put on view. Eskina identified number 1 and number 2 men in the line-up as being the persons who committed the robbery, and two photographs of the lineup were introduced as exhibits and passed to the jury. During the course of trial, defendant’s mother testified and pointed out McDowell sitting on the first bench in the spectator portion of the courtroom. Moreover, Eskina on cross-examination was asked if the robber other than defendant was in the courtroom, and he responded, “[t]he gentleman over there looks a little bit like him.” Identification of McDowell by Eskina as one of the robbers may at least be inferred from the evidence, and the prosecutor could legitimately argue that conclusion.

Defendant argues next that the evidence failed to show that McDowell was present at all times during the trial. The direct evidence with respect to this matter occurred in the testimony of defendant, himself, who testified:

“Q. He’s [McDowell’s] been sitting in the courtroom all day watching your trial?
“A. Yes. I be seeing him sit here watching my trial. He be in and out. * *

The prosecutor’s statement that McDowell had been present “all during the course of this trial” — a trial which lasted a day and a half — does not differ significantly from defendant’s testimony. Additionally, defendant’s mother identified McDowell as being present in the courtroom during her testimony; and the jury could have recognized from her identification and from the photographs of the police line-up that the man pointed out in the courtroom by Eskina during his testimony was again McDowell. This portion of the prosecutor’s argument must be held to be within the scope of the evidence. Even if the trial court did not rule specifically on the objection now under consideration, the omission could not have been prejudicial to defendant.

Finally, defendant argues under this point that the record contains no evidence that McDowell was sitting in the courtroom on the second day of trial. However, in this respect the trial court immediately admonished the prosecutor to “stay within the record”, and defense counsel was satisfied to leave the matter in that state without requesting anything further. The monitoring of closing arguments traditionally has been entrusted largely to the discretion of the trial judge. Under like circumstances to those here, numerous decisions in both criminal and civil cases have upheld similar trial court action as sufficient. State v. Jackson, 511 S.W.2d 771, 775 (Mo.1974); State v. Coleman, 441 S.W.2d 46, 53-54 (Mo.1969); State v. Wright, 319 Mo. 46, 4 S.W.2d 456, 458 (1928); State v. Stark, 148 S.W.2d 82, 85 (Mo.App.1941); Berger v. Huser, 498 S.W.2d 536, 540 (Mo.1973); Higgins v. Terminal R.R. Ass’n of St. Louis, 362 Mo. 264, 241 S.W.2d 380, 386 (1951); Hunt v. Hunt, 423 S.W.2d 682, 685 (Mo. banc 1968); Wendler v. People’s House Furnishing Co., 165 Mo. 527, 65 S.W. 737, 740 (1901); Gidionsen v. Union Depot Ry. Co., 129 Mo. 392, 31 S.W. 800, 802 (1895); Thompson v. Bi-State Transit System, Inc., 458 S.W.2d 903, 906 (Mo.App.1970). The handling of the situation in this case does not begin to approach an abuse of the trial court’s discretion.

II.

Defendant’s second point, that the trial court improperly admitted evidence of a second robbery (the taking of the soldier’s coat) for which defendant was not on trial, has no merit. The general rule is that proof of the commission of separate and distinct crimes is not admissible unless such evidence has some legitimate tendency to directly establish the defendant’s guilt of the charge for which he is on trial. State v. Mitchell, 491 S.W.2d 292, 295 (Mo. banc 1973); State v. Lee, 491 S.W.2d 317, 320 (Mo. banc 1973). However, one of several well-recognized exceptions to the general rule holds evidence of another crime admissible where the conduct is part “of a continuous occurrence intimately connected with the crime for which defendant is being tried.” State v. Gray, 478 S.W.2d 654, 669 (Mo.1972); State v. Griffin, 497 S.W.2d 133, 135 (Mo.1973); State v. Morris, 523 S.W.2d 329, 331 (Mo.App.1975); State v. Torrence, 519 S.W.2d 360 (Mo.App.1975).

The robbery of the soldier was perpetrated concomitantly with that of Eskina; it was “part of a continuous occurrence intimately connected with” the robbery of the cab driver. To allow Eskina to testify about what he saw and heard during the episode was not error. The trial court is “not required to nicely sift the evidence in order to delete any possible mention of other crimes occurring during this connected series of events.” State v. Morris at 331, supra.

Affirmed.

All concur.


author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. Glen D. SCHMIDT, Appellant.
    No. KCD 27442.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Dec. 8, 1975.
    Application to Transfer Denied Jan. 12, 1976.

      William E. Shull, Robert G. Duncan, Duncan & Russell, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   TURNAGE, Judge.

Defendant appeals his conviction of obtaining a check by means of the “confidence game” under § 561.450, RSMo 1969. After finding him guilty the jury assessed punishment at one year imprisonment and a fine of $1,000.

The jury could have reasonably found from the evidence that Robert Quick operated a livestock sale barn in Oregon, Missouri. For about five years prior to April 17, 1970, Quick and the defendant had established a practice by which defendant purchased certain cattle and Quick would reimburse defendant for the purchase price. The cattle would then be delivered to Quick’s Sale Barn for sale. After the sale at the barn, defendant and Quick would then divide equally any gain or loss.

Quick testified that on April 17, 1970, the defendant came to him and told him he had purchased 168 head of cattle from four farmers — Valdron Hannah, John Price, Dale Owens and Curtis Pitzenbarger — for a total of $30,360. Quick stated the defendant told him he had already paid for such cattle and he needed a check from Quick in order to cover such amount. Quick gave the defendant a check in the amount of $30,360. This check was dated April 17, 1970. When this check was admitted in evidence it showed a stamp on its face bearing the notation: “Paid April 20, 1970, Citizen’s Bank, Oregon, Missouri.” The check also bore the endorsement of the defendant.

Quick testified the sale at the Sale Barn was held on Thursday afternoon. The defendant had told him the cattle which he had already purchased were to be delivered to the Sale Barn on the Wednesday and Thursday following the Friday on which Quick paid the defendant for the 168 head. When no cattle arrived on the following Wednesday, Quick began making inquiries and learned the defendant was in the hospital with an apparent heart attack. None of the cattle were ever received by Quick nor was he ever given any explanation as to why the cattle were not delivered.

The four people from whom the defendant stated he had purchased the cattle all testified. Mr. Hannah stated he had been approached about April 17 by the defendant concerning the sale of some cattle. He said after negotiations were completed he had agreed to sell defendant 35 head and received a down payment of $100. He stated, however, that no one ever came to pick up the cattle nor was he paid the balance of the purchase price. Mr. Price stated he had been contacted by the defendant and had agreed to sell some cattle to him but he had never been paid any amount and none of the cattle were ever delivered by him. The other two persons, Mr. Owens and Mr. Pit-zenbarger, both testified they had never talked with the defendant about the sale of any cattle at any time near April 17, 1970.

The defendant’s evidence consisted of three witnesses who testified they had either picked up cattle for the defendant or had accompanied him for the purpose of picking up cattle prior to April 17, 1970, to be delivered to the Quick Sale Barn. One witness testified he had gone to defendant’s home on April 23, 1970, to meet the defendant to pick up some cattle, but on arrival learned he was hospitalized with a heart attack.

The defendant then sought to show by an accountant, George Williams, that on April 17, 1970, Quick was actually indebted to defendant in an amount in excess of the $30,360. This attempt was refused by the trial court and will be examined in more detail presently.

Defendant’s first complaint is the failure of the trial court to instruct upon the question of good character as defendant contends was required by Rule 26.02(6). That Rule requires the court to “instruct the jury in writing upon all questions of law necessary for their guidance in returning their verdict which shall include whenever necessary the subject of good character and reasonable doubt.” The defendant argues that Quick stated he had dealt with defendant for a number of years and had always found him to be honest up to the instance involved here. The defendant also brought out from other witnesses the fact the defendant had dealt with them honestly for a period of time. “The term ‘whenever necessary,’ as used in the statute and rule, ‘means that such an instruction is necessary only when there is substantial evidence tending to show the good character of the defendant.’ State v. Moore, 303 S.W.2d 60, 70 (Mo. banc 1957).” State v. Antwine, 506 S.W.2d 397, 399[1] (Mo.1974). It was further stated in Antwine at p. 399: “[i]t is only the knowledge of the witness of an accused’s reputation in the community that is material, and questions to the witness should be framed to call for answers as to that issue.”

Here the defendant made no attempt to elicit evidence concerning either the character of the defendant or the reputation which the defendant bore in his community. The defendant only showed specific acts of honest dealing. It is well settled that character, good or bad, is to be established by proof of general reputation and not by evidence of particular acts, either good or bad. State v. Carson, 239 S.W.2d 532 (Mo.App.1951).

Here it is not a matter of the use of “magic words” as defendant urges, but a fundamental omission to prove defendant’s general reputation and character. Since the defendant failed to follow the only recognized method of proving defendant’s character, there was no substantial evidence of his good character which required the giving of an instruction on this subject.

Defendant next contends there was no substantial evidence to show defendant violated the provisions of § 561.450, but rather shows at most a violation of § 560.156, the stealing statute. The recital of the evidence above makes it abundantly clear the defendant had obtained the confidence of Quick over a period of years. Defendant took advantage of this confidence by the statement that he had purchased cattle and needed a check from Quick to cover the purchase price the defendant had already paid for such cattle. There is no doubt the confidence Quick reposed in defendant caused him to believe defendant’s statement and formed the base for Quick to give his check. There is no precise definition of the type or class of scheme which falls under this Section, which is designed to prosecute the perpetration of the “confidence game”. In State v. Weber, 298 S.W.2d 403 (Mo.1957) the court stated at p. 406[1, 2]: “[generally speaking, a confidence game is any trick, device, or swindling operation by means of which advantage is taken of the confidence reposed by the victim in the swindler, or any scheme whereby a swindler wins the confidence of his victim and swindles him out of his money or property by taking advantage of such confidence.”

It is beyond question the combination of confidence and defendant’s statement caused Quick to act. Since the confidence Quick had in defendant enabled the scheme to succeed, it follows the jury was justified in finding defendant guilty of obtaining the check by the “confidence game”.

The defendant makes some argument that the evidence fails to show the defendant obtained the amount of $30,360 because the evidence did not show the bank paid this check. On the contrary, the record clearly disclosed Mrs. Quick testified such amount came from their personal bank account. As noted, the check admitted in evidence also shows it was paid by the bank on the Monday following the Friday on which it was given. The evidence thus revealed defendant not only obtained a check from Quick, but that such check was paid by the bank and defendant received the full amount of the check in cash.

Defendant further argues the evidence failed to show any intent on his part. This argument is based largely on the argument that Quick and defendant had dealt over a period of years with no difficulty. It is elementary that intent to cheat and defraud may be shown by circumstances from .which such intent may be inferred. State v. Scott, 230 S.W.2d 764 (Mo.1950). There were sufficient circumstances, as outlined above, from which the jury was justified in drawing the conclusion that defendant’s acts were designed to cheat and defraud Quick out of the $30,360.

The question of whether or not the heart attack excused defendant’s nonperformance was for the jury to resolve. Quick stated defendant told him the cattle had already been purchased and paid for prior to his attack. The jury could find, as they must have, the swindle was conceived and executed before the attack occurred.

Defendant next argues under the lack of evidence argument that he and Quick were partners and, therefore, any money received by the defendant was from the partnership in which defendant had an interest, and, therefore, any money the defendant received would be his. Defendant then states that these facts being true, to convict him in this case would be convicting him of stealing from himself.

The difficulty with defendant’s argument is that Quick testified the check given to defendant came from Quick’s own personal bank account. There is no hint or suggestion that the defendant had any interest whatever in that bank account. Thus, the funds which the defendant obtained did not come from any partnership property, but came wholly from Quick’s personal funds. In this circumstance there could be no partnership funds involved and defendant’s argument must be rejected.

The defendant’s last point concerns the refusal of the court to allow George Williams to testify that he had conducted an audit and in his opinion Quick was indebted to the defendant on April 17, 1970, in an amount in excess of $30,360. When Williams was called as a witness, the State objected to his testimony. The court then allowed Williams to be examined and cross-examined out of the presence of the jury for the purpose of determining the admissibility of his evidence. This revealed that Williams had examined the defendant’s bank account from January 1,1970, to April 17, 1970, and had examined the bank account of Quick, through which Quick stated his dealings with the defendant had been conducted, for the period of January 1, 1970, to April 17, 1970.

Williams further testified he formed his opinion as to the relationship between Quick and the defendant based on a deposition he had read but which was not in evidence in this case. Williams further stated he did need to know more about the business arrangement between Quick and the defendant in order to justify his conclusion of a debt running from Quick to the defendant. Williams also stated he could not find that Quick had paid for ten cows obtained from defendant, but later, in apparent contradiction, stated all of the cattle had been accounted for. Williams further stated he had not examined any other books or records. Williams was not asked any hypothetical question nor was he asked to assume any facts which had been introduced in evidence.

It is axiomatic that the opinion of an expert must be supported by a substantial factual evidentiary base, even though it must not rise to absolute certainty. State v. Maxie, 513 S.W.2d 338 (Mo.1974). It is obvious a conclusion or opinion as to an indebtedness between these parties could not be founded upon an examination of bank statements for a short period. There are many factors to be considered beyond such statements, such as the balance, if any, between the parties as of the starting date, an examination of all of the records of the sale barn, and an examination as to how much the defendant was called upon to pay to cover losses sustained through the sale of the cattle. All of these matters were ignored prior to the invitation to the accountant to give his opinion. In this circumstance the proffered evidence was lacking in the substantial evidentiary base required.

Furthermore, the accountant based his opinion, at least in part, on an examination of a deposition which was not in evidence in this case. The opinion of an expert must be based on facts in evidence. State v. Johnson, 504 S.W.2d 334 (Mo.App.1973). For these reasons the opinion sought to be elicited was properly refused.

Finding no error, the judgment is affirmed.

All concur.


author: SWOFFORD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Tyrone ROBERTS, Appellant.
    No. KCD 27608.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Dec. 8, 1975.

      Thomas Larson, Public Defender, E. L. Messina, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SWOFFORD, Presiding Judge.

The appellant (hereinafter referred to as “defendant”) was tried by a jury upon a charge of first degree robbery, was convicted and sentenced to five years imprisonment. The defendant did not testify nor did he offer any evidence in the trial. The facts pertinent here, as disclosed by the state’s evidence, may be summarized as follows:

Charles D. Burt and Kevin Furst were tending store at the Rhinocerous Leather Shop, 4509 Pennsylvania, Westport Square, Kansas City, Jackson County, Missouri, at approximately 2:30 p.m. on March 14, 1974, when the defendant entered the store with a “bundle” of money in his hand and asked to look at some leather pants. Furst accompanied the defendant to the lower level of the shop, where the leather pants were kept in a stockroom. Burt remained behind the sales counter on the upper level.

A minute or so later, another man entered the store, proceeded more than halfway down the stairs to the lower level, then returned to the upper level. When Burt asked if he could help this man, he pulled a gun and ordered Burt to accompany him downstairs. The gunman, later identified as Willard Carr, ordered Burt to lie face down on the bathroom floor located in the lower level. When Furst saw what was going on, he followed suit. Carr ordered the two shopkeepers to remain there, and then one of the two men closed the door.

Four to ten minutes later, “Ace” Dickinson, the proprietor of a shop across the street, whose suspicions were aroused, entered the store and summoned the prostrated Burt and Furst. They went upstairs and immediately called the police, who arrived within four to five minutes. It was then that Burt and Furst noticed that approximately 25 leather coats and some $30.00 from the cash register were missing.

Mrs. Dickinson testified at trial that she had seen two Negro males come from the direction of the Leather Shop with arms loaded with coats, pass by the restaurant next to the Leather Shop and carry them down an alley. When the second male began to run, she suspected a holdup and alarmed her husband, who investigated.

Wesley Brown testified that he saw Roberts and another Negro male carry the coats down the alley and place them in the trunk of a white over red 1974 Cadillac with the Maryland license plate MR 1124. He gave this information to the police.

Witness Bowles, a fellow employee of Brown’s testified that on March 14,1974, at about 2:30 p.m., he was walking across Broadway toward the alley right in front of Wolf burger’s restaurant when a large white over red automobile “brushed right by” him. It did not hit him because he “stepped aside”.

The following events transpired between 4:00 and 5:00 p.m.:

Two detectives from the Kansas City Police Robbery Unit, Thurman and Luther, went to the scene of the crime, and in the process of their investigation they obtained the description and license number of the automobile. Before their arrival, Officer Todd of the Kansas City Police Department had attended the scene and had broadcast a pickup, describing the robbers and the car. While at the scene, Thurman and Luther received a broadcast dispatching them to 4006 Forest, where the car had been spotted. When Thurman and Luther arrived at this address, tactical unit crew policemen already had arrested Carr when he came out of the three-story apartment house at that address and headed for the car.

The two detectives questioned some children playing in the yard as to whether they knew where the people went who arrived in the red Cadillac. The children directed them to an apartment on the third floor. The detectives proceeded to the front entrance of the third floor apartment, knocked, identified themselves as police and demanded entry, to no avail, despite hearing indications that someone was inside. Luther went around the building and up the stairs to the back door of the apartment in order to prevent an escape. Through the large-windowed back door, he observed the defendant and a female companion standing in a dining area-hallway near a two-foot high pile of leather, suede and cashmere coats on hangers and with price tags attached. When Luther knocked and hollered “police officer”, the defendant closed an inner door, thus obstructing Luther’s view. Luther heard “scuffling and carrying-on” and ran down the stairs and started around the side of the building. It was then that he noticed the windows of the apartment being opened. Fearing that the evidence would be destroyed or disposed of, he advised a Sergeant Etzenhouser of what he observed and what had transpired. The decision was made to forcibly enter the apartment. Sergeant Etzenhouser and his men went to the back door, identified themselves as police officers several times, threatened to kick in the door if the occupants didn’t open it, and then entered forcibly. Luther and Thurman were then admitted through the front door by the other officers and observed the defendant being placed under arrest in the dining area-hallway. He was arrested as he came out of one of the bedrooms by an officer who saw numerous leather coats strewn about. The coats had been moved from the position in which Luther had originally observed them. However, when he looked into one of the bedrooms off the dining room-hallway area, he saw four or five coats on hangers and with tags attached lying on the bed; he found more under the bed, and stuffed in an open closet. In another bedroom off the dining area-hallway, he found more coats lying on the bed, under the bed and in a green trash bag in the closet. The coats were inventoried and returned to the owner.

Carr and the defendant were identified in a lineup at the police station thereafter by Burt, Furst and Brown.

Prior to trial, defense counsel filed a motion to suppress all physical evidence procured by the police at the apartment. A hearing on this motion was held, at which Detective Luther testified as to the circumstances of the seizure of the coats and a handgun in the apartment at the time of defendant’s arrest. The motion to suppress was overruled and the case proceeded to trial. At the trial, the state offered as exhibits two leather coats recovered at the apartment, which were identified by witness Burt as among the coats taken in the robbery. These coats were received in evidence without objection from defense counsel. The handgun was not offered into evidence by the state. Counsel for defendant did assert as one of the grounds in the motion. for a new trial the denial of the motion to suppress the physical evidence recovered in the apartment.

The defendant’s sole point on this appeal is that the trial court erred in overruling his motion to suppress the evidence seized at the scene of his arrest because the search of the apartment was conducted in violation of his constitutional rights under the Fourth and Fourteenth Amendments.

To properly preserve any alleged error by reason of the admission of evidence allegedly obtained as a result of an illegal search and seizure, the objection must be raised at the earliest possible opportunity by motion to suppress, kept alive by timely objection to the introduction at trial, and preserved by the motion for a new trial. State v. Fields, 442 S.W.2d 30, 33[2, 3] (Mo.1969); State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878, 887[14, 15] (1942); State v. O’Brien, 252 S.W.2d 357, 359[2] (Mo.1952); State v. Thompson, 490 S.W.2d 50, 52[2] (Mo.1973), and cases cited therein.

While the defendant here filed a motion to suppress the physical evidence seized from the apartment at the time of his arrest and raises the point in his motion for a new trial, he did not, as previously noted, object at trial to the introduction of the two leather coats when they were offered by the state. To the contrary, when so offered, counsel for the defendant unequivocally stated “No objection”. Under this state of the record, the defendant’s contention cannot properly be reached on this appeal.

While not requested to do so, this court has, sua sponte, carefully reviewed the entire record to determine whether or not the “plain error” provision of Rule 27.20(c) should be applied. This review of the record and transcript of testimony has resulted in some definite conclusions.

The search and seizure here involved was proper under the facts and circumstances of this case and does not fall within any proscription of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); or State v. Witherspoon, 460 S.W.2d 281 (Mo.1970), cases cited by the defendant. Rather, the facts bring this case within the permissive warrantless search and seizure rules of “plain view” and “incidental to arrest”, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Gott, 456 S.W.2d 38 (Mo.1970); State v. Cobb, 484 S.W.2d 196 (Mo. banc 1972); State v. Hawkins, 482 S.W.2d 477 (Mo.1972), and State v. Henderson, 510 S.W.2d 813 (Mo.App.1974).

Further, it is apparent that no manifest injustice or miscarriage of justice has resulted from the introduction of the two leather coats as evidence in this case. Such must appear before the provisions of Rule 27.20(c) may be properly invoked. State v. Hurtt, 509 S.W.2d 14, 15[2, 3] (Mo.1974); State v. Caffey, 457 S.W.2d 657, 660[4, 5] (Mo.1970). The defendant’s guilt of the crime charged was established by strong, believable and, indeed, overwhelming evidence.

The judgment is affirmed.

All concur.


author: DIXON, Judge.

text:
    STATE of Missouri, Respondent, v. Jack Lee HUNTER, Appellant.
    No. KCD 27707.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Dec. 8, 1975.
    Thomas M. Larson, Public Defender, Sixteenth Judicial Circuit, Douglas N. Merritt, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Andrew Rothschild, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   DIXON, Judge.

The appellant, Jack Lee Hunter, having been charged by information with the crime of carrying a concealed weapon, waived a jury trial, was tried to the court sitting without a jury, and was found guilty. Defendant was sentenced to serve five years in the Missouri Department of Corrections. This timely and direct appeal raises a single issue of claimed unlawful search.

At the trial, it was shown that on the morning of February 25, 1974, police officer Tom Noel of the Kansas City, Missouri, Police Department entered Willie’s Tavern at 7140 Prospect, walked over to where Hunter was seated, and advised him that he was under arrest for fraud. Hunter was asked to stand up, which he did, was placed in a wall search position, and was patted down. The officer, in searching Hunter for weapons, found and removed a loaded .38 caliber revolver from the right front pocket. Prior to the pat-down, there was no weapon in plain view, nor did the officer know that Hunter was carrying a revolver. The defendant did not testify and presented no evidence.

The defendant’s single point on appeal is that the court erred in admitting the revolver into evidence because it had been found in a search incident to an illegal arrest. Prior to the trial, defendant filed a motion to suppress the revolver, claiming that he had been arrested at Willie’s Tavern on February 25, 1974, without a warrant and without probable cause, that the arrest was therefore illegal, and that the fruits of the subsequent search incident to this illegal arrest should be suppressed. This motion was heard in another Division by another judge. After hearing evidence on the motion, it was overruled by the court. The statement of facts in both briefs refers to evidence taken on this motion. At the request of the defendant, such a transcript was, after the trial, ordered by the judge who heard the trial. The transcript discloses it was to be separately filed, but this has not been done. The failure to file the supplemental transcript is not critical since the issue presented cannot be reached on the merits.

During the trial, the prosecuting attorney had the revolver and the bullets therefrom marked for identification as State’s Exhibits 1 and 2, respectively. These exhibits were then identified by the arresting officer as the revolver and the bullets taken from appellant in Willie’s Tavern on February 25, 1974. When the prosecutor offered these exhibits into evidence, defense counsel stated that he had no objection to them, and they were duly received into evidence by the trial judge hearing the case. It is the settled rule of procedure in Missouri that to keep alive the issue of the improper search and seizure, an objection must be made when the evidence is offered. State v. Thompson, 490 S.W.2d 50 (Mo.1973); State v. Yowell, 513 S.W.2d 397 (Mo. banc 1974). Notably, this case falls within the reasoning of the Supreme Court in Yowell, based on State v. Bryson, 506 S.W.2d 358, 361 (Mo.1974), for here, as in Bryson, the trial judge hearing the evidence had not heard the motion nor the evidence in support.

Here, however, not only was there a failure to object to the revolver and bullets when offered into evidence, but also defense counsel affirmatively stated that he had no objection to them. The admission into evidence of items claimed to be unlawfully seized cannot form the basis for invalidating a criminal trial when the defendant affirmatively stated that he had no objection to the admission into evidence of such items. The statement of, “No objection,” by defense counsel when the allegedly illegally seized revolver and bullets were offered Into evidence constituted an express waiver of the contentions made in the motion to suppress and was a waiver of any error on the part of the trial court in refusing to suppress the evidence. State v. Simone, 416 S.W.2d 96 (Mo.1967); State v. Holbert, 416 S.W.2d 129 (Mo.1967), reversed on other grounds; State v. Holt, 415 S.W.2d 761 (Mo.1967). There was a colloquy between defense counsel and the court after the trial that indicates there may have been some discussion in chambers regarding the prior ruling on the .motion to suppress. The record does not indicate when this occurred, and it cannot affect the plain waiver contained in the trial transcript.

The judgment and' conviction are affirmed.

All concur.

      . The fact that a Federal District Court opinion [See Yowell v. Wyrick, 387 F.Supp. 421 (Western Dist. Mo.1975)] holds that the Missouri rule of procedure cannot deprive the Federal courts of the power of review of the constitutional issue does not change this court’s obligation to follow the last controlling decision of the Missouri Supreme Court. Mo. Constitution, Art. 5, § 2.


text:
    STATE of Missouri ex rel. Allan R. HOFFMAN and Sun Swept Apartment Company, Relators-Respondents, v. PUBLIC SERVICE COMMISSION of Missouri, Respondent-Appellant, Laclede Gas Company, Intervenor-Appellant.
    Nos. KCD 27739 and KCD 27784.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Dec. 8, 1975.
    Leland B. Curtis, David L. Smith, Jefferson City, for respondent-appellant.

      Richard L. Eckhart, St. Louis, for inter-venor-appellant (Laclede).
    Dominic Troiani, Mark T. Keaney, St. Louis, for relators-respondents (Hoffman & Sun Swept).
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   DIXON, Judge.

This is an appeal by the Public Service Commission from a judgment of the Circuit Court of Cole County reversing an order of the Commission denying to Allan R. Hoffman and the Sun Swept Apartment Company a variance under General Order # 51 of the Commission prohibiting payments for promotional purposes by public utilities. Laclede Gas Company, the affected utility, intervened as a party in the writ of review proceedings in the Circuit Court.

The parties align themselves in this court with the individual and corporate applicant in support of the Circuit Court order and the Commission and the Laclede Gas Company seeking a reversal.

The ultimate issue to be resolved is the jurisdiction of the Commission to entertain and decide the application for a variance from General Order # 51.

So far as relevant to the issues to be decided, the factual background of the dispute is as follows. Allan R. Hoffman and William Seltzer entered into a joint venture or partnership to construct an apartment project of 200 units referred to as the Flower Valley apartment project. Seltzer has assigned to Hoffman all his interest in the project and Sun Swept Apartment Company is a limited partnership added as a party before the Commission. Hoffman is the principal partner in Sun Swept Apartment Company and the interest of all the promoters of the project, the respondents here, can be encompassed by reference to Hoffman. Laclede Gas Company entered into an agreement with Hoffman to pay $30,000 in cash, furnish 50 gas lamps and pay 75 per cent of certain advertising costs. In return, Hoffman agreed to build a 200-unit apartment complex by April, 1972 and to install gas appliances and not to install electrical outlets permitting the use of electrical kitchen appliances. This agreement was made in April of 1971. In May and June, FHA financing arrangements were made, and in early June, 1971, footings were poured for sixty units.

On June 28, the Public Service Commission entered General Order #51 which prohibited any such promotional payments as were contemplated by the agreement between Hoffman and Laclede. There were no exceptions to the original order.

Certain litigation then ensued between some affected utilities and the Commission as to the validity and effect of General Order # 51. That litigation resulted in an order issued by the Circuit Court which stayed the enforcement of General Order # 51 where contracts had been substantially performed prior to July 8, 1971, the effective date of the original General Order # 51. Several amendatory proceedings as well as a number of requests for variance from compliance including Hoffman’s were pending before the Commission during 1971. The Circuit Court litigation concerning General Order # 51 terminated in July, 1972, with a judgment of the Circuit Court validating General Order # 51 as lawful and not arbitrary. The Commission then took up and determined the issues relating to the applications for amendment of General Order # 51 and issued an Amended General Order # 51.

This amended order which the parties agree applies to this case incorporated an exception to the order where footings were poured prior to July 8, 1971, and contained an additional exception which gives rise to the instant dispute. That exception is as follows:

“Notwithstanding the provisions of paragraph (1) and (2), the Commission does hereby authorize until November 1, 1972, the filing of applications praying that certain promotional payments which are otherwise prohibited under the provisions of this rule, be permitted, on a proper showing, in verified form, that Applicant would otherwise suffer a substantial legal detriment, and on further finding by the Commission that said detriment occurred pursuant to a legally binding and enforceable contract entered into prior to July 8, 1971.”

Following the adoption of amended General Order No. 51 in September, 1972, the Commission heard on the merits in October, 1972, the request for a variance filed by Hoffman. That application filed in 1971 was in very general terms but it is clear from the record and the statements of counsel that the hearing before the Commission in October, 1972 was on the theory that Hoffman was entitled to a variance from the application of General Order No. 51 (to the contract with Laclede) under the proviso of the amended order set forth above.

In support of that theory Hoffman offered his own testimony concerning his arrangements for financing and his compliance with the Laclede contract as well as offering in evidence the basic contract documents. In view of the posture of this appeal, that evidence may be very briefly stated.

Hoffman asserted he relied upon the additional funds from the Laclede contract to add certain “frills” to the apartment project, further that these “frills” were a part of the plans and specifications and that the loan commitment for financing the project as well as the FHA agreement to insure required compliance with these specifications. Among the provisions of the commitment to insure was a provision permitting a decrease in the cost of the project of not more than 2 per cent of the total without prior consent. There is no evidence in the record that Hoffman, who was acting as his own general contractor, ever made any request of the lender or FHA to permit him to omit the “frills” he had contemplated financing with the promotional payments from Laclede. There was testimony from an employee of Laclede that Hoffman fully performed his agreement as to installation of gas appliances.

The Commission Report and Order was issued denying the variance. The Report and Order after recitation of findings of fact not in dispute reads as follows:

“Applicant contends that he used more costly appliances because he relied upon the Laclede promotional program. Yet, the Commission finds that by his own admission, Applicant could have changed to less expensive appliances. Indeed, all evidence indicates that Applicant did not in fact purchase its appliances until some considerable time after July 8, 1971. Numbered paragraph 6 of the Commitment of Insurance of Advances by FHA found in Applicant’s exhibit number one clearly states how and under what conditions changes could be made in the project without violating the terms of the FHA Insurance commitment.
Applicant could have reduced its project costs by eliminating or changing the type of appliances or by making other changes in the project after July 8, 1971. Instead, Applicant proceeded at its own peril after making a business judgment as to what was the best plan for it.
Conclusion
The Missouri Public Service Commission has arrived at the following conclusions:
The Commission concludes that there was no legally binding and enforceable contract entered into prior to July 8, 1971, which could cause Applicant to suffer substantial legal detriment if not paid the promotional allowances in question.
The Commission is of the opinion and concludes, therefore, that Applicant, Allan R. Hoffman Developers and Sun-swept Apartment Company has not met the requirements set forth in General Order No. 51 and General Order No. 51 as amended that would enable the Commission to grant variance and permit Laclede Gas Company to make certain promotional payments. The Commission also concludes that Applicant has not met this burden as to advertising allowances and award credits.”
Hoffman filed a motion for rehearing before the Commission and, when that was overruled, a petition for review in the Circuit Court of Cole County.
The judgment and decree of the Circuit Court abridged to essential part is as follows:
“The Public Service Commission, in its Order concluded that there was no legally binding and enforceable contract . , which could cause the Applicant to suffer substantial legal detriment
Whether or not the contract entered into between the Relators and the Lac-lede Gas Company, . . . is a legally binding contract is a question to be determined by the Courts, and the amount of any liability is to be determined by the Courts.
This Court concludes that the Public Service Commission is without jurisdiction to entertain and determine the Application filed by the Relators; .
. the Order of the Public Service Commission is reversed . . .”

Against this factual background, Hoffman makes a welter of assertions of error. As noted, the essential issue is one of the jurisdiction of the Commission which is apparent from the Circuit Court Order. Preliminary to a consideration of that issue, some disposition needs be made of some of the contentions briefed and argued.

Hoffman, the Commission and Laclede all argue that if the jurisdictional issue is resolved in favor of the Commission, that this court undertake a determination of the issue of whether or not the Commission’s order is supported by substantial evidence, an issue of the Circuit Court did not decide in its review. The argument is that since that issue, once decided by the Circuit Court, is reviewable here, that this court should, in effect, short circuit the matter and determine the issue on this appeal.

The simple and direct answer to this argument is the language of the statute. Section 386.510 in relevant part is:

“No court in this state, except the circuit courts to the extent herein specified and the supreme court or the court of appeals on appeal, shall have jurisdiction to review, reverse, correct or annul any order or decision of the commission . . . ” RSMo 1959. (Emphasis added.)

The jurisdiction to review the circuit court is appellate only and such jurisdiction does not arise until the circuit court has made its finding. No determination of that issue will be made prior to the appropriate finding by the circuit court.

The Commission also contends that the circuit court erred in concluding that the Commission was without jurisdiction because Hoffman did not raise the issue of the Commission’s jurisdiction in the motion for rehearing filed before the Commission. The circuit court is an appellate court when it reviews Public Service Commission rulings. Section 386.510 RSMo 1959; Lusk v. Public Service Commission, 277 Mo. 264, 210 S.W. 72 (Banc 1919), reversed on other grounds, 254 U.S. 535, 41 S.Ct. 192, 65 L.Ed. 389 (1921); State v. Public Service Commission of Missouri, 339 Mo. 469, 97 S.W.2d 116 (Banc 1936). It is a settled rule of appellate practice that at any time the parties can challenge jurisdiction (Bailey v. American Life and Accident Ins. Co., 96 S.W.2d 903 (Mo.App.1936)) or the appellate court sua sponte can raise the issue of jurisdiction (Kelch v. Kelch, 450 S.W.2d 202 (Mo.1970)). If there is no jurisdiction in the Public Service Commission to grant a variance under Section 10(3), the circuit court properly raised the issue and remanded the case.

Thus shorn of extraneous issues, the fundamental question emerges. Did the Commission, in refusing Hoffman’s request for a variance, exceed its jurisdiction?

The Commission first argues that the circuit court misconstrued the order of the Commission in the portion of the circuit court judgment reading:

“Whether or not the contract entered into between the Relators and the Lac-lede Gas Company, . . . , is a legally binding contract is a question to be determined by the Courts, and the amount of any liability is to be determined by the Courts.”

This language of the circuit court was likely enough invited by the equally ambiguous language of the order of the Commission in its conclusion which reads:

“The Commission concludes that there was no legally binding and enforceable contract entered into prior to July 8, 1971, which could cause Applicant to suffer substantial legal detriment if not paid the promotional allowances in question.”

That last quoted language may very well be read as a conclusion by the Commission that the Laclede promotional contract was not binding and enforceable. In any event as the Commission points out in its brief, from the evidence and the issues considered and the entire order, it is apparent that the Commission was not declaring the Laclede contract void or unenforceable. Applying the same analysis to the circuit court judgment, however, it appears that the circuit court’s basis for decision is not aptly expressed in terms of finding that the Commission declared a contract void but rather that the Commission construed a contract to find no detriment. Put another way, the circuit court was holding that the determination of whether the contracts in issue created a “legal detriment” is an issue of law which the Commission is without authority to resolve.

The rule does, in fact, exist that the Commission “has no power to declare or enforce any principle of law or equity.” Lightfoot v. City of Springfield, 361 Mo. 659, 669, 236 S.W.2d 348, 352 (1951).

Hoffman’s brief pursues this issue, citing cases that hold that the Commission cannot assume judicial powers. However, these are cases where a cause of action on a contract existed independent of any Commission rule. If the circuit court was saying the builder possibly has a cause of action on the contract for promotional payments independent of Section 10(3), it is now clear that such a contention is wrong. This issue was litigated and resolved against the party claiming a right to promotional payments prohibited by General Order 51 as amended. McBride & Son Builders v. Union Elec. Co., 526 S.W.2d 310 (Mo.1975).

In its order denying the Commission jurisdiction over claims under Section 10(3), of Amended General Order 51, the circuit court did not invalidate the order. It held only that the Commission had “misconstrued the legal effect” of the amended order. Thus, the reasoning of the circuit court again appears to be not that the Commission was construing contract rights independent of Section 10(3), but that the Commission was construing contracts when interpreting Section 10(3).

The root of this controversy then is that the Commission used the language and concepts of contract law to create a category for variance in writing Amended General Order 51. Apparently the circuit court reacted to the Commission’s use of contract terms and decided that in spite of the fact one’s claim to a variance arises out of 10(3) and not independent of 10(3), the Commission is without jurisdiction because it is attempting to litigate law issues. Had the Commission, for example, created an additional variance for builders who poured footings before January 1,1972, presumably there would be no question of Commission jurisdiction. Whether footings were poured is not a law issue.

Thus the critical question in this case can be restated as follows: Did the Commission, by creating a category for variances using the language and concepts of contract law, assume judicial powers in excess of its jurisdiction? (Laclede and the Commission cast this issue generally, arguing that the Commission was merely interpreting and applying its own rule.)

McBride, supra, implies that the Commission has jurisdiction to determine variances under Amended General Order 51. There, the court recited that the Commission made certain contentions with which the court agreed. Among these as stated in the opinion was the following:

“Third: In State ex rel. Cirese v. Ridge [345 Mo. 1096], 138 S.W.2d 1012, 1015 (Mo. banc 1940), we said: ‘[W]e have consistently adhered to the rule that matters within the jurisdiction of the commission must first be determined by it, in every instance, before the courts will adjudge any phase of the controversy.’ Plaintiff made no application to the Commission for a variance after General Order No. 51 as amended was adopted September 15, 1972 but sought payments authorized by it.” (1.c. 314)

This holding in McBride is in direct conflict with that portion of the circuit court order which asserts that the courts must first determine the rights of Hoffman and then the utility must seek relief from the General Order # 51 before the Commission.

No case precisely in point has been found, but a federal case is persuasive on the issue. In N. L. R. B. v. Marcus Trucking Co., 286 F.2d 583 (C.A.2d, 1961), the N.L.R.B. determined that an employer had entered into a certain labor agreement and that he was bound by that agreement rather than by one executed at a later date. On appeal, the court held that the N.L.R.B. finding that a first agreement was in fact made was a finding of fact subject to the substantial evidence rule rather than a question of law. To reach the decision that an agreement existed, the N.L.R.B. agreed with its hearing examiner that certain conduct constituted ratification of the first agreement and that the authority of the employer’s agent had not been revoked. The N.L.R.B. application of “undisputed legal terms” to “raw facts” was held to be subject to the review standard for questions of fact — the substantial evidence rule. Similarly, “whether an agent has acted within the scope of his authority, actual, inherent or apparent, is a ‘question of fact’ within § 10(e) of the Labor Relations Act . . . ” N. L. R. B. v. Local 815, Internat'l Bro. of Teamsters, Etc., 290 F.2d 99 (C.A.2d, 1961).

There is no question but that the Public Service Commission can make orders based on findings of fact, subject on review to the substantial evidence rule. State v. Public Service Commission, 308 S.W.2d 704 (Mo.1957); State v. Burton, 334 S.W.2d 75 (Mo.1960). The Commission also can make and interpret rules to carry out its statutory authority. State v. Public Service Commission, 232 Mo.App. 605, 110 S.W.2d 364 (1937); State v. Burton, supra.

In the instant case, the Commission made a rule, General Order 51, amended, pursuant to Section 393.140, Subsection 11, (RSMo 1959), which provides in part for the Commission to regulate promotional payments practices. This section also provides that the Commission can establish, modify and amend rules and regulations necessary for carrying into effect the provisions of the subdivision.

To determine if this builder qualified for a variance under Section 10(3), the Commission necessarily had to make findings as to whether the builder otherwise suffered a legal detriment pursuant to a legally binding contract. This was not a finding as to contractual liability in the sense a court decides contract liabilities. Rather, it was a finding as to whether the builder came under the variance created by the rule of the Commission.

It was entirely appropriate for the Commission to formulate a rule which included legal terms and to apply the “undisputed legal terms” to “raw facts” to make the necessary administrative finding of whether the builder qualified for a 10(3) variance. On review, the circuit court must apply the substantial evidence test to the Commission’s findings.

No other result is possible on these facts in view of McBride, supra. Clearly, it holds no right of independent action in the courts is available to a contractor and, equally clearly, it holds that the proper forum is the Commission. The Supreme Court in McBride, was considering Amended General Order # 51 and the rights of a contractor thereunder. The case can only be considered as holding that the Commission has jurisdiction.

The cause is reversed and remanded to the circuit court for a determination of whether or not the Commission’s order is supported by substantial evidence.

All concur.


author: ANDREW J. HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. Dale A. McFADDEN, Appellant.
    No. KCD 27783.
    Missouri Court of Appeals, Kansas City District.
    Nov. 3, 1975.
    Motion for Rehearing and/or Transfer Denied Dec. 8, 1975.

      Thomas M. Larson, Public Defender, R. William Bloemker, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOPFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW J. HIGGINS, Special Judge.

Dale A. McFadden was convicted by a jury of robbery, first degree, by means of a dangerous and deadly weapon, and his punishment was assessed at eighteen years’ imprisonment. Sentence and judgment were rendered accordingly. §§ 560.120, 560.135, RSMo 1969, V.A.M.S.

Appellant does not question the sufficiency of evidence to sustain his conviction, and a submissible case may be demonstrated from his statement of the case:

“On June 18, 1974, Michael Jerome Smith was working in the ‘7 — 11’ convenience store at 1701 Independence Avenue, Kansas City, Missouri. At approximately 2:00 a. m., while Smith was on the telephone, a man entered the store. When the phone conversation was concluded, the man informed Smith that ‘this is a stickup’ and produced a gun.

“Smith gave the robber about Sixty Dollars ($60) from the cash register. The intruder struck Smith twice with the gun. The man then left the store.

“Another store employee, Thomas Reed Brislan, came into the store and helped Smith off the floor. The two then pressed the alarm button and called the police on the telephone.

“Smith observed the man in a well-lit store for about three or four minutes and described him as a black man, about 6'2" or 6'3", wearing a brown suede jacket and red pants and having no beard or mustache.

“Smith attended a three-man lineup on June 18, and at such lineup identified the Appellant as being the robber.

“Thomas Reed Brislan testified that he was sweeping up in the parking lot of the ‘7 — 11’ store when he noticed a person loitering around the area, but paid little attention to him. Brislan saw the person enter the store and later come running by him. Brislan noticed the barrel of a gun.

“Brislan entered the store and found Smith, who seemed to have been beaten, lying on the floor. He pressed the alarm button and called the police on the telephone.

“Brislan described the man he saw as wearing a brown suede coat and burgundy ‘baggies.’ The height of the man was said to be about 5'10" or 5'11".

“The parking lot where Brislan was sweeping was dark, but the area around the store was illuminated.

“Brislan also attended the lineup and identified the Appellant. * * *

“Patrolman James Dearing heard the call regarding the robbery come over the police radio. The suspect was said to be headed southbound, so Dearing proceeded to the area south of the scene and parked his patrol car about two (2) blocks south of the store. Other patrol cars and a helicopter were in the area and were shining lights in an effort to see the robber.

“Dearing observed a silhouette. He moved closer to check this out and observed a Negro male jump over a porch and into some bushes. He went to the bushes and found a man he identified as the Appellant, wearing a brown suede coat and burgundy pants to come out.

“Dearing detained the Appellant while Patrolman Aichele searched the Appellant and took some money from McFadden’s pocket. Dearing watched while Aichele searched the bushes and recovered a .38 caliber revolver and some money. Some ammunition [.38 caliber] was found in McFadden’s pocket.

“Police officer James Aichele came to the bushes after Dearing had flushed Appellant out. He entered the bushes and found a gun [.38 caliber] and Fourteen Dollars ($14.00) in currency. He searched the Appellant and found an additional Sixty Dollars and thirty-two cents ($60.32) and ‘four .38 caliber shells and one’ .38 short.

“The appellant testified that on the night of his arrest he had One Hundred Fifty Dollars ($150) in his possession, which money he had earned from employment. McFadden said he had gone to see a girlfriend in the neighborhood of the ‘7 — 11’ store. The girl was not home, so appellant was returning to his residence, when he heard an alarm, turned around and was pushed by someone. Appellant had walked passed [sic] the store that evening, but did not go in. He had some bullets in his pocket, but carried them because he was fearful due to the fact he had been shot from a moving automobile about two months prior to his arrest.

“McFadden said that he saw the man who pushed him run to the bushes and throw something in. Appellant thought it was a pistol. He then walked to the bushes to see about it. Appellant went into the bushes. He never touched the gun.”

Appellant charges the court erred (I) in failing to grant defendant’s motion for mistrial following comment by the prosecuting attorney during closing argument “that the State’s witnesses had exercised courage in testifying, because, ‘once this trial is over, they will have to be out in the streets again.’ ”

Appellant argues: “One can only conclude * * * he intended to indicate to the jury that those witnesses faced some threat to their safety or well-being as a result of their decision to testify. The jury must inevitably have had to surmise that the Assistant Prosecuting Attorney was attempting to tell them that the Appellant was likely to cause harm to those who took the witness stand on the State’s behalf”; that the defendant was thereby prejudiced because such was speculation as to future acts or conduct of defendant, and that such prejudice went both to guilt and punishment and reversal is required.

In this respect, defendant, in closing, argued: “Now, perhaps the most damaging testimony that we have heard from this witness stand was that of the two employees of the store, Mr. Smith and Mr. Brislan. Now, at the time of the robbery, I would submit to you that they were both scared kids. One was inside the store, he was in fear of his life. Now the Prosecutor submits to you that that increases the accuracy of his identification. I would submit to you that it’s just the opposite, that he wasn’t thinking of anything else but how he was going to get out of this situation. He didn’t know what else was going one [sic]. Now the other was out in the darkened parking lot. The man he says that he observed was in light, but he, himself, was in a darkened parking lot. I submit to you that the situation is not at all comparable to what we have in here today, as far as accuracy of observation goes. I would like to point out a few things that I think are relevant as to the powers of observation of these two individuals who identified the defendant. I think it was apparent from their testimony and the testimony of Detective Thurman that their version of what was going on at the line-up where they identified Dale McFadden and what the realities of the situation of that line-up were are completely different.”

In closing, the State argued:

“Mr. Bloemker indicated what a fine young man the defendant is. Well, I submit to you, if you’re thinking in terms of mercy for the defendant, think of the mercy he showed Michael Smith when he hit him twice over the head with a gun as he was taking his money, after he already had the money. And think of the risk involved in that situation with that .38 caliber pointed at a man that you’re trying to get money from. Think of the risk involved there and what type of case we might have had. It took courage for these witnesses to come in and testify to you, because once this trial is over, they will have to be out on the streets again.

“MR. BLOEMKER [for defendant]: I object to that as improper argument. The inference there is, something is going to happen to them because of what they testified to. There has been absolutely nothing on that whatsoever presented in this trial. THE COURT: Sustained.

“COUNSEL APPROACHED THE BENCH AND THE FOLLOWING PROCEEDINGS WERE HAD:

“MR. BLOEMKER: I’m going to ask, on the basis of that last comment by Mr. Bertram, that a mistrial be declared in this case. THE COURT: Well, it is subject to probably some other interpretation other than the one you’re giving it, and I’m going to deny your mistrial. MR. BLOEMKER: Judge, I think the inference is clearly that — he stated they had courage to come in here, he stated that they had to go back out on the streets after this thing is over. The inference is clear, that something is going to happen to them as a result of this trial. I think what he means to infer to the jury is absolutely crystal clear. THE COURT: I’m going to sustain the objection and I’m going to deny the motion for mistrial.

“THE PROCEEDINGS RETURNED TO OPEN COURT.

“MR. BERTRAM: Now you must have the courage, just as these witnesses have, to come in and testify, to do what you know must be done in this case.”

The first part of the State’s argument in question was proper in that it is permissible for the State to commend witnesses for having the courage to testify and to comment on their credibility. State v. Sallee, 436 S.W.2d 246 (Mo.1969); State v. Reppley, 278 Mo. 333, 213 S.W. 477 (1919); State v. Miles, 199 Mo. 530, 98 S.W. 25 (1906).

In its context, the latter portion of the argument in question was, as recognized by the trial court, susceptible to interpretations other than those made by defendant, and “ ‘a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.’ ” State v. Connell, 523 S.W.2d 132, 138 (Mo.App.1975).

At the outset of trial, the court, by its Instruction 2 (MAI — CR 2.02) advised the jury that it “must not consider as evidence any statement or remark or argument by any of the attorneys ⅜ * * ,” and at the close of the case by Instruction No. 7 (MAI— CR 2.68) advised the jury that arguments of counsel “are intended to help you in understanding the evidence and applying the law, but they are not evidence.”

In such circumstances, the trial court is not shown to have abused its discretion by refusing to declare a mistrial, a remedy reserved for application in extraordinary circumstances. See State v. Goff, 490 S.W.2d 88 (Mo.1973); State v. Schlagel, 490 S.W.2d 81 (Mo.1973); State v. Camper, 391 S.W.2d 926 (Mo.1965); State v. James, 347 S.W.2d 211 (Mo.1961); State v. Connell, supra; and compare State v. Heinrich, 492 S.W.2d 109 (Mo.App.1973), cited by appellant, where the prosecuting attorney’s repeated specific and unambiguous prejudicial comments required reversal as a matter of plain error.

Appellant charges the court erred (II) in overruling his motion to suppress his identification by witnesses Smith and Brislan “because appellant was exhibited to [those] witnesses under unconstitutionally suggestive identification procedures.”

In order for a defendant to preserve such charge of error, he must object to the challenged testimony when proffered at trial. State v. Franklin, 448 S.W.2d 583, 584[2] (Mo.1970); State v. Brownridge, 459 S.W.2d 317, 320[8] (Mo.1970); State v. Ward, 518 S.W.2d 333, 334[3] (Mo.App.1975); State v. Brown, 527 S.W.2d 15 (Mo.App.1975); State v. Bishop, 529 S.W.2d 165 (Mo.App.1975). This he did not do and the matter is not for review.

Appellant’s statement of the case also demonstrates that witnesses Smith and Brislan had an independent basis for their in-court identification of defendant. It is no longer open to argument that if a lineup is in some way tainted or suggestive, and there is an untainted, positive in-court identification made upon a factual basis independent of any lineup procedure, such in-court identification is proper. State v. Ealey, 515 S.W.2d 778, 780 (Mo.App.1974). See also State v. Hudson, 508 S.W.2d 707 (Mo.App.1974); State v. Ross, 502 S.W.2d 241 (Mo.1973); State v. Carey, 486 S.W.2d 443 (Mo.1972); State v. Jackson, 477 S.W.2d 47 (Mo.1972); State v. Brownridge, supra.

Judgment affirmed.

All concur.


author: WEIER, Presiding Judge.

text:
    William E. WHITE, Movant, Appellant, v. STATE of Missouri, Respondent.
    No. 36695.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 4, 1975.
    Motion for Rehearing or Transfer Denied Dec. 10, 1975.

      Charles D. Kitchin, Public Defender, James W. Whitney, Jr., Asst. Public Defender, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Julian D. Co-sentino, Asst. Circuit Atty., Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   WEIER, Presiding Judge.

William E. White pleaded guilty to three counts of robbery in the first degree by means of a dangerous and deadly weapon. § 560.135, RSMo.1969. He was sentenced to twelve years on each count, the sentences to run concurrently. Defendant then moved to vacate his sentence pursuant to Rule 27.26. His motion was denied by the circuit court after an evidentiary hearing and he appeals from this judgment.

The state contends that defendant did not file timely notice of appeal and that this court thus lacks jurisdiction. We dispose of this first since if we have no jurisdiction we cannot consider the merits of the appeal. The contention is without merit. “The rules applicable to appeals in civil proceedings govern, since a proceeding under Criminal Rule 27.26 is regarded as a civil proceeding. [Citation omitted.] Civil Rule 82.-04 [now 81.04], governing the time and manner in which appeals shall be taken, provides that no appeal shall be effective unless the notice of appeal shall be filed not later than 10 days after the order appealed from becomes final. For the purpose of ascertaining the time within which an appeal may be taken, a judgment becomes final at the expiration of 30 days after the entry of such judgment, where (as in this case) no motion for a new trial is filed.” State v. Gullett, 411 S.W.2d 227, 228[1-4] (Mo.1967). See also State v. Lindner, 498 S.W.2d 754, 755 (Mo. banc 1973); Johnson v. State, 521 S.W.2d 479 (Mo.App.1975).

Judgment was entered on October 29, 1974. Since no motion for a new trial was filed, the judgment became final on November 28, 1974. Rule 81.05(a). Defendant’s notice of appeal was filed November 26, 1974, two days before the judgment became final. Notice of appeal is timely if filed within ten days after the judgment or order appealed from becomes final. Rule 81.04. Any notice of appeal filed prematurely is deemed filed immediately after the time the judgment becomes final for the purpose of appeal. Rule 81.05(b). Defendant’s notice of appeal was timely.

On the merits, movant contends that, because of ineffective assistance of counsel, his guilty pleas were a product of coercion and duress rather than voluntarily and knowingly made as required by Rule 25.04. His charge arises from the events that preceded his arraignment. Movant’s sister testified at the hearing on his 27.26 motion that the attorney originally hired to represent her brother told her that “the worst he could get my brother was five years”. Movant’s mother also stated that the attorney told her that “he would get him five years”. Movant testified that counsel told him several times that he would arrange to obtain a five year sentence and admission into a drug program if movant pleaded guilty. Two days before his arraignment, however, movant’s counsel informed him that the best sentence that could be expected for him was twelve years. On the day that his plea was entered, his counsel informed him that if he chose to go to trial he could receive twenty-five years on each count.

Movant’s trial counsel testified that, in light of the evidence against movant, it would have been impossible to obtain an acquittal. He informed both movant and his family that he “would like” to obtain a sentence of five years for him. This occurred, however, before counsel was aware of movant’s background, his previous record and the state’s case against him. After his initial meetings with movant and his family, counsel also learned of the sentences received by two co-defendants. The co-defendant who pleaded guilty and who had no prior convictions received a twelve year sentence. The other was found guilty by a jury and received a twenty-five year sentence. Counsel explained the situation to movant and his family and “pleaded with them to take twelve years”. He believed that this was the best sentence that could be obtained for his client.

The record made at the time of arraignment indicates that before entering his pleas movant was questioned extensively regarding the voluntary and understanding nature of his plea on each of the three counts as required by Rule 25.04. The existence of a factual basis for the guilty pleas was determined and movant was advised of the rights he was waiving by not having a jury trial. He stated that no promises or threats had been made to obtain his pleas of guilty; that he was satisfied with the advice of his counsel; that his plea to each count was his own “free and voluntary act”; and that he understood the possible range of punishment for his offenses. His guilty pleas were accepted on each count and sentence was passed. Following the hearing on the 27.26 motion to set aside the judgment, the court entered findings of fact and conclusions of law and denied the motion.

Movant contends that his guilty pleas cannot be said to have been made knowingly and voluntarily because he was misled by his attorney who first stated that he would receive a five year sentence and then informed him two days before arraignment that he could expect twelve years. Testimony adduced at the hearing was in conflict over whether movant’s counsel ever promised that he would obtain a five year sentence. Movant testified that on three occasions his attorney promised him a five year sentence. His attorney, when asked if he had ever made such a promise, stated: “I guess I told them I would try to. The best I could do was 12 years.” Witnesses did agree that movant was fully advised before the pleas were entered of the likelihood of a twelve year sentence being imposed. On appeal, movant correctly asserts that a guilty plea is invalid if not knowingly and understandingly made, State v. Reese, 481 S.W.2d 497, 499[1-3] (Mo. banc 1972), and that when a guilty plea is entered, “the issue of ineffective assistance of counsel then becomes concomitant with the issue of whether the guilty plea was knowingly and voluntarily entered.” Williams v. State, 508 S.W.2d 211, 213[3-4] (Mo.App.1974). Once a plea of guilty is entered, however, “the adequacy of representation by counsel is reviewable only to the extent that it bears upon the voluntariness and understanding with which the plea was made.” Floyd v. State, 518 S.W.2d 700, 703[9] (Mo.App.1975). “If a guilty plea has been knowingly and voluntarily made, counsel can not be charged with affording ineffective assistance * * *.” Williams v. State, supra at 213[4].

The findings of fact of the trial court in the instant case were that “the movant was properly and ably represented”; that the defendant “had adequate time to confer with counsel”; and that the guilty plea “was voluntary and intelligently made”. These findings are presumed to be correct and should be affirmed unless clearly erroneous. Rule 27.26(j); Richardson v. State, 470 S.W.2d 479, 481[1] (Mo.1971). Although there was conflict in the testimony regarding defense counsel’s representation of the sentence that movant would receive, movant concedes that two days pri- or to his arraignment his attorney told him of the possibility of a twelve year sentence. In response to extensive questioning by the judge accepting movant’s pleas, movant stated that no threats or promises had been made, that he was satisfied with the advice of counsel, and that each plea was his own free and voluntary act. Review of this record plainly indicates that movant was ably advised by his counsel and that he understood the charge against him, his right to a jury trial, the possible punishment and the consequences of his plea. Movant failed to introduce any evidence at his 27.26 hearing that would support a contrary conclusion. Counsel advised him that a twelve year sentence was the best he could obtain, but did not coerce movant into accepting it. The findings, conclusions and judgment of the trial court that movant’s pleas were voluntarily and knowingly made are amply supported by the record.

The judgment is therefore affirmed.

DOWD and RENDLEN, JJ., concur.