text:
    STATE of Missouri, Respondent, v. Roberta J. MICK, Appellant.
    No. 28401.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1976.
    Motion for Rehearing and/or Transfer Denied Jan. 31, 1977.
    Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Christopher R. Brewster, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

Defendant was charged by information with robbery, first degree, by means of a dangerous and deadly weapon (Sections 560.120 and 560.135, RSMo 1969). A jury found defendant guilty as charged and fixed her punishment at eight years imprisonment.

An abbreviated statement of facts will suffice as there was substantial evidence to support the verdict returned by the jury— defendant does not contend otherwise. Defendant, acting in concert with a companion, was positively identified as one of two persons who committed an armed robbery on February 20, 1975, at the Cirise Investment Company located at 3411 East 9th Street, Kansas City, Missouri.

Defendant’s sole point on appeal is that the trial court erred in allowing the prosecuting attorney to question her about the results of a polygraph examination. The trial context in which this point arose is as follows. Defendant, in response to a question on redirect examination regarding her delay in informing the police of a claimed alibi, volunteered the following: “. This is the reason that I was there talking to Detective Dawson, and set up with him to take this polygraph test and everything, that I later talked to you about. . . . ” (Emphasis supplied.) Over defendant’s objection the state was permitted to pursue the following line of questioning during its recross-examination of defendant:

“Q You mentioned you had a polygraph examination; did you take a polygraph examination?
A Yes, sir.
Q Do you know what the results of the polygraph examination were?
A Yes.
Q What were they?
A They said I failed it.”

It is the general rule in this state that the results of polygraph examinations are inadmissible as evidence because they lack scientific support for their reliability. State v. Weindorff, 351 S.W.2d 806, 811 (Mo.1962); State v. Cole, 354 Mo. 181, 188 S.W.2d 43, 51, 189 S.W.2d 541 (1945); and State v. Jacks, 525 S.W.2d 431, 435 (Mo.App.1975). However anomalous it may be, the parties, by stipulation, may waive objections to the admission of polygraph examinations and their results, and in that sense imbue them with reliability and probative value. State v. Fields, 434 S.W.2d 507 (Mo.1968).

Section 546.260, RSMo 1969, provides in part, that a defendant in a criminal case who testifies in his own behalf “. shall be liable to cross-examination, as to any matter referred to in his examination in chief . . . ” This statutory provision has been interpreted as permitting the state to cross-examine a defendant in detail with respect to matters about which he testified during the course of his direct examination. State v. Dalton, 433 S.W.2d 562, 563-64 (Mo.1968); State v. Moser, 423 S.W.2d 804, 806 (Mo.1968); and State v. Rice, 519 S.W.2d 573, 575 (Mo.App.1975). Concomitantly, authority exists in this state that a defendant who chooses to take the stand and testify in his own behalf may not complain of being cross-examined on a matter otherwise deemed inadmissible if the matter upon which he is being cross-examined was injected by him into evidence during the course of his direct examination. State v. Warters, 457 S.W.2d 808, 816 (Mo.1970); and State v. Carson, 239 S.W.2d 532, 537-38 (Mo.App.1951).

Although no cases have been found applying the foregoing principle — that a defendant cannot complain of being cross-examined on an otherwise inadmissible matter if he himself injected the inadmissible matter during his direct examination — to a factual situation matching the one at hand, defendant has failed to come foreward with any persuasive authority or any persuasive reason why it should not apply. The defendant volunteered the fact that arrangements had been made for her to take a polygraph examination; it was totally unresponsive to any question asked her. Thus, defendant, of her own volition, implanted in the jurors’ minds that she had taken a polygraph examination. Absent any further explanation, the jurors may well have inferred that the results of the polygraph examination were favorable to defendant. Pragmatically analyzed, defendant sought to gain certain benefits from her voluntary statement while at the same time shielding herself from the adverse results of the polygraph examination. The state on recross-examination sought to destroy any favorable inference that might have been derived by the defendant from her voluntary and unexplained statement. As cogently stated in State v. Williams, 519 S.W.2d 576, 578 (Mo.App.1975), with regard to the scope of cross-examination of a defendant who has testified in his own behalf, “. . . the state is not confined to a categorical review of the matters covered or stated in the direct examination, but that cross-examination may cover all matters within the fair purview of the direct examination.” As the defendant in the instant case voluntarily opened up the subject of the polygraph examination during her testimony on redirect examination, she will not be heard to cry that she was prejudiced by the state’s development of the matter on recross-examination as the latter covered matters “within the fair purview” of her volunteered statement.

Judgment affirmed.

All concur.

      . Williams v. State, 238 So.2d 137, 139 (Fla.App.1970) is the closest case in point found by this court. In Williams, defendant testified on direct examination that he had “offered to take a lie detector test, but didn’t”. The court held that defendant had “opened the door” on the subject and the trial court did not commit error in permitting the state to “delve into the reason why the same was not taken.”


source: Caselaw Access Project

author: WEIER, Presiding Judge.

license: Public Domain

text:
    R. F. N. and L. M. N., Petitioners-Respondents, v. G. R., Defendant-Appellant.
    No. 37723.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 28, 1976.

      Allan F. Stewart, Clayton, for defendant-appellant.
    Philip R. Newmark, Scott Richardson, Newmark & Richardson, St. Louis, for petitioners-respondents.
   WEIER, Presiding Judge.

This is an appeal by the natural mother from a decree of adoption. We affirm. Petitioner R. F. N. is the natural father of D. M. N. D. M. N. was born to petitioner and his then wife, G. R., on July 7,1965. In March of 1966, G. R. left Missouri for California with a married man who later became her present husband, leaving the child with her maternal grandmother. The grandmother being unable to care for the child, took her to the home of her paternal aunt. Then, two days after leaving for California, G. R., the wife of petitioner R. F. N., called him and asked him if he wished to have custody of the child. Acting upon this invitation and his affirmative reply, R. F. N. picked up the little girl and has had actual physical custody over nine and one-half years to the time of the hearing.

In the latter part of 1966 R. F. N. obtained a divorce from G. R. and was awarded legal custody of the child, D. M. N. The mother made no appearance at the time of the proceeding and never thereafter attempted to regain custody or enforce any visitation rights to see the child.

On this appeal, G. R. seeks to reverse the adoption decree in which the trial court determined that she had willfully abandoned and willfully neglected the minor child for a period of one year immediately prior to the filing of the petition for adoption. She contends that there is insufficient evidence of an intent to willfully abandon or neglect the child; and in view of the natural mother’s personal contact with her daughter and also interest expressed to others within the year preceding the petition, a finding of abandonment or neglect is contrary to the weight of the admissible evidence. Unless this finding is substantiated by the evidence, consent of the natural mother is required by law. Section 453.030.3, RSMo 1969; In re E. C. N., 517 S.W.2d 709, 710[1] (Mo.App.1974). To willfully abandon a child, there must be a voluntary and intentional relinquishment of custody of the child to another with intent to never again claim the rights of a parent or perform the duty of a parent, or an intentional withholding from the child without just cause or excuse by the parent of his or her presence, care, love and protection, maintenance and opportunity for display of filial affection. Such abandonment must be so complete as to display a subtle purpose to forego all parental duties and relinquish all parental claims. In re E. C. N., supra at 715[8]. As to willful neglect, it must be shown that the neglect was intentional, deliberate and without just cause or excuse, evincing the purpose to forego parental duties over the period of a year before the filing of a petition for adoption. In re E. C. N., supra at 712. The application of such legal aphorisms set out in the case law construing the adoption statutes must in each case turn upon the factual issues presented by the evidence. In re Adoption of K., 417 S.W.2d 702, 711[14] (Mo.App.1967).

In the year prior to the filing of the adoption petition, G. R.’s only contact with petitioners consisted of two phone calls and three letters, all prompted by notification of the pending adoption proceeding. The first phone call was to the father in which G. R. voiced her opposition to the adoption. This call was followed by a letter stating she had retained an attorney to represent her. The second letter offered to consent to the adoption if R. F. N. would send her a cashier's check for $5,000.00. The second phone call was a two-minute conversation between G. R. and D. N., Mr. N.’s second wife, in which the natural mother stated that she would come to see the child in St. Louis. This call was followed by a letter explaining that G. R. would not be coming to St. Louis. G. R. neither sent the child a birthday or Christmas card or gift in the statutory one-year period.

Since willful abandonment is a matter of intent, the court may consider evidence of a parent’s conduct before or after the statutory period to determine the parent’s purpose and intent. In re E. C. N., supra, 517 S.W.2d at 715. G. R. had not seen her daughter for five years when the adoption petition was filed. Although she claimed that she sent the child gifts and money through relatives, these same relatives denied having received them.

While it is true that adoption statutes are to be construed in favor of the natural parent, such a construction should not be so narrow as to defeat the intent of the legislature. “The degree of compliance is not literal but substantial.” In re C., C., & C., 380 S.W.2d 510, 514[4] (Mo.App.1964). The paramount consideration is the welfare of the child. In re Adoption of J_, 396 S.W.2d 257, 263[10] (Mo.App.1965). Here, the minor child does not know her natural mother who left her when she was eight months old. Efforts of the natural mother to contact her daughter were very minimal. They were virtually non-existent for five years before the filing of the adoption petition. The supposedly renewed concern of the mother over her child after being notified of the filing of the adoption petition took the form of a letter stating that she would consent to the child’s adoption upon payment of $5,000.00.

The trial court’s finding that petitioners’ allegation that G. R. willfully abandoned and willfully neglected the minor child for a period of at least one year prior to the filing of their petition was true is supported by substantial evidence and is not against the weight of the evidence. The law was neither erroneously declared nor applied. Rule 73.01; Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976).

The judgment is affirmed.

DOWD and CLEMENS, JJ., concur.


author: McMILLIAN, Presiding Judge.

text:
    STATE of Missouri ex rel. Carl HAILS et al., Relators, v. Honorable Herbert K. LASKY, Judge of the Circuit Court, St. Louis County, Respondent.
    No. 38125.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Jan. 4, 1977.
    Motion for Rehearing or Transfer Denied Feb. 16, 1977.
    Application to Transfer Denied March 14, 1977.

      Roberts & Roberts, Raymond R. Roberts, Farmington, for realtors L. J. Mueller and Frank J. McDowell.
    Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, P. C., Mary J. Lake, Hillsboro, for realtor Carl Hails.
    W. W. Sleater, St. Louis, for respondent.
   McMILLIAN, Presiding Judge.

This is an original proceeding to prohibit Honorable Herbert K. Lasky, Judge of the Circuit Court of St. Louis County, from proceeding further in a cause pending before him on the ground of improper venue.

Defendants-relators, Carl Hails, Frank J. McDowell and L. J. Mueller, were served with summons and a copy of a petition in a cause entitled, “Ladue-Innerbelt Bank and Trust Co. v. McHarevo Development Corp., Carl Hails, Frank J. McDowell and L. J. Mueller," filed in the Circuit Court of St. Louis County, Missouri. The action was based on the alleged failure of defendant McHarevo Development Corporation to remit certain sums due plaintiff bank under the terms of a management agreement between McHarevo and a third party. The individual defendants were alleged to be guarantors of the corporation’s indebtedness under a guaranty agreement with the bank. Motions to dismiss were filed on behalf of relators claiming improper venue, inasmuch as each relator was a resident of St. Francois County, Missouri, none of the relators were served in St. Louis County, and defendant McHarevo Development Corporation was a Missouri Corporation located and maintaining its only office for conduct of business in St. Francois County, Missouri. Defendant McHarevo subsequently entered a special appearance and also moved to dismiss for improper venue.

The trial court, respondent herein, overruled the motions to dismiss and required relators to proceed with the cause on the merits. On relators’ petition, a preliminary rule was granted by this court.

It is well-established that lack of venue is a defect of a jurisdictional nature which authorizes issuance of prohibition. State ex rel. Garrison Wagner Co. v. Schaaf, 528 S.W.2d 438 (Mo. banc 1975); State ex rel. Spradling v. Bondurant, 501 S.W.2d 527, 529 (Mo.App.1973). The question before us, then, is whether venue is proper in St. Louis County, Missouri, so that respondent may proceed to hear and determine the cause on the merits.

The pertinent venue statutes are § 508.-010, RSMo 1969, which reads as follows:

“Suits instituted by summons shall, except as otherwise provided by law, be brought:
“(1) When the defendant is a resident of the state, either in the county within which the defendant resides, or in the county within which the plaintiff resides and the defendant may be found;
“(2) When there are several defendants, and they reside in different counties, the suit may be brought in any such county;
* * * * * *
“(4) When all the defendants are nonresidents of the state, suit may be brought in any county in this state;
* * * * * *
“(6) In all tort actions the suit may be brought in the county where the cause of action accrued regardless of the residence of the parties, and process therein shall be issued by the court of such county and may be served in any county within the state; provided, however, that in any action for defamation or for invasion of privacy the cause of action shall be deemed to have accrued in the county in which the defamation or invasion was first published.”

And in § 508.040:

“Suits against corporations shall be commenced either in the county where the cause of action accrued, or in case the corporation defendant is a railroad company owning, controlling or operating a railroad running into or through two or more counties in this state, then in either of such counties, or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business.”

Respondent contends that venue is proper in St. Louis County under § 508.040 because the cause of action for breach of the management contract accrued in St. Louis County. In further attempts to support the jurisdiction of respondent, counsel asserts that the petition below alleged a cause of action sounding in tort thereby authorizing venue under § 508.010(6). We consider these contentions in reverse order.

To determine the character of the action alleged below, whether ex contractu or ex delicto, it is necessary to ascertain the source of the duty claimed to have been violated. “If this duty is one imposed merely by the contract, then any action for the breach thereof is necessarily ex contrac-tu. [Citation omitted.] On the other hand, if a party sues for breach of duty prescribed by law as an incident of the relation or status which the parties have created by their agreement, the action may be one in tort, even though the breach of duty may also be a violation of the terms of the contract. [Citation omitted.] In such a case, the party has a choice whether to proceed in tort for violation of the duty imposed by law, or by an action on the contract for breach of the contractual obligation. Also, there may be extraneous circumstances in connection with the contract, but not constituting elements thereof which will give rise to an action in tort.” State ex rel. Cummins Missouri Diesel Sales Corp. v. Eversole, 332 S.W.2d 53, 57-58 (Mo.App.1960). In the case at bar, it is plain that the breach of duty which is the basis of plaintiff’s claim is one which arose under the management contract concerning defendant McHarevo Development Corporation’s obligation to pay certain sums to plaintiff, and not a breach of duty imposed by law. Absent the management agreement, there would be no independent duty at law for the corporate and individual defendants to pay the sums in question to plaintiff. Further, the action alleged is not based on circumstances independent of the agreement. Section 508.010(6) is not applicable here.

Both parties have based their primary arguments to this court on the assumption that § 508.040, is controlling in ascertaining proper venue and have expended considerable effort in determining where the underlying cause of action accrued. However, it has long been established in Missouri that where one or more corporations are sued with one or more individuals, § 508.040 is inapplicable and venue is determined by the general venue statue, § 508.-010. State ex rel. Boll v. Weinstein, 365 Mo. 1179, 295 S.W.2d 62, 65 (Banc 1956); State ex rel. Baker v. Goodman, 364 Mo. 1202, 274 S.W.2d 293 (Banc 1954); State ex rel. Columbia Nat. Bank of Kansas City v. Davis, 314 Mo. 373, 284 S.W. 464, 470 (Banc 1926); see State ex rel. Garrison Wagner Co. v. Schaaf, 528 S.W.2d 438, 441 (Mo. banc 1975).

Under § 508.010(1), we find venue is not proper in St. Louis County. It is not disputed that all individual defendants, re-lators herein, are residents of St. Francois County, Missouri, and that none of the individual defendants was served in St. Louis County. The residence of a corporation for venue purposes is deemed to be in the county where its registered office is maintained. State ex rel. Whiteman v. James, 364 Mo. 589, 265 S.W.2d 298, 299-300 (1954). Rela-tors contend that the corporate defendant maintains its only office for the conduct of business in St. Francois County. Respondent does not claim that McHarevo’s registered office is in St. Louis County; in fact, plaintiff’s petition specifies relator Hails as the corporation’s registered agent located at the registered office in St. Francois County. Under these facts, it is apparent venue is not proper in St. Louis County. See Helfer v. Hamburg Quarry Co., 208 Mo.App. 58, 233 S.W. 275 (1921) for a similar situation.

Our provisional rule in prohibition is made absolute.

STEWART and RENDLEN, JJ., concur.

      . There is considerable dispute between the parties as to whether defendant McHarevo Development Corporation was actually served with process in St. Francois County. We have been informed by the parties that the trial court granted a default and inquiry against McHarevo shortly before we issued our preliminary rule. However, in view of our decision in this case to make our provisional rule in prohibition absolute, we need not pass on the questions raised by the trial court’s actions.

      . All statutory references are to RSMo 1969.


author: FLANIGAN, Judge.

text:
    STATE of Missouri, Respondent, v. Daniel Lee FAUGHT, Appellant.
    No. 10068.
    Missouri Court of Appeals, Springfield District.
    Jan. 11, 1977.
    Motion for Rehearing or Transfer Denied Feb. 7, 1977.
    Application to Transfer Denied March 14, 1977.

      Devon F. Sherwood, Springfield, for appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

A jury found defendant Daniel Lee Faught guilty of murder in the first degree and he was sentenced to life imprisonment. The victim of the slaying, which took place on April 24, 1974, was Herbert Walford (“Butch”) Masters, Jr. Defendant appeals. This court has jurisdiction of the appeal. Parks v. State, 492 S.W.2d 746 (Mo. banc 1973).

Defendant’s first point, a valid one, is that the trial court erred in admitting into evidence, over the objection of defendant, a portion of the testimony of state’s witness Ronnie Ingram. Defendant’s counsel, anticipating the testimony, made extensive objections which the trial court overruled immediately prior to its reception. The challenged testimony, involving a statement made by defendant “in the middle of May,” 1974, is as follows:

“Q. (By the assistant prosecuting attorney) Now, Ron, you said that when you came in the door of the defendant’s house he asked you if you were followed and he said that this detective had just been out there. What was the statement he made to you?
“A. His statement that he made to me was that Detective Lindsey had come out there to talk to him about to take a polygraph test about Butch’s disappearance and he said, ‘You know that I cannot do that,’ and he was upset and nervous, and he said, ‘Can they make me take a polygraph test?’ ”

In Missouri, in the absence of a stipulation between the state and the defendant, State v. Fields, 434 S.W.2d 507 (Mo.1968), results of a lie detector test are not admissible in evidence. State v. Weindorf, 361 S.W.2d 806, 811[17] (Mo.1962); State v. Stidham, 305 S.W.2d 7, 18[20] (Mo.1957); State v. Cole, 354 Mo. 181, 188 S.W.2d 43[13] (1945). See 23 A.L.R.2d § 2, pp. 1306, 1308, where federal authorities and 39 state courts are cited to the effect that the results of such tests are inadmissible. The reason for the rejection of the results of lie detector examinations is that they lack scientific support for their reliability. State v. Jacks, 525 S.W.2d 431, 435[6] (Mo.App.1975).

In State v. Bibee, 496 S.W.2d 305 (Mo.App.1973) this court held that the trial court did not err in rejecting evidence offered by the defendant to prove that prior to the trial he was willing to undergo a lie detector test concerning his guilt or innocence. The court pointed out that an offer by an accused to take a lie detector test has no probative value because the “accused has nothing to lose by making the offer.” The test results being inadmissible, such an offer is merely a self-serving one made without possible risk. This court also said, at p. 316: “It is obvious that neither a professed willingness nor a refusal to submit to such a test should be admitted.” (Emphasis added)

“It is generally held in criminal prosecutions that evidence is not admissible that the accused was willing or unwilling to take a lie detector test. The contention that evidence of the accused’s refusal to take a lie detector test tends to establish consciousness of guilt, and that evidence of the accused’s willingness to take such a test shows consciousness of innocence, has been uniformly rejected. . . . ” 29 Am. Jur.2d Evidence § 296, p. 341. To similar effect see Wharton’s Criminal Evidence, 13th Ed., Vol. 3, § 630, p. 252; Underhill’s Criminal Evidence, 6th Ed., Vol. I, § 150, p. 388; 22A C.J.S. Criminal Law § 636, p. 495.

Foreign authorities, impressive by their number, their respective sources, and their unanimity, have held that it is improper to admit evidence of the unwillingness of an accused to take a lie detector test. Bowen v. Eyman, 324 F.Supp. 339 (D.Ariz.1970); People v. Carter, 48 Cal.2d 737, 312 P.2d 665 (1957); People v. Parrella, 158 Cal.App.2d 140, 322 P.2d 83, 87 (1958); Mills v. People, 139 Colo. 397, 339 P.2d 998 (1959); State v. Chang, 46 Haw. 22, 374 P.2d 5, 12 (1962); State v. Emory, 190 Kan. 406, 375 P.2d 585 (1962); State v. Kolander, 236 Minn. 209, 52 N.W.2d 458 (1952); State v. Hegel, 9 Ohio App.2d 12, 222 N.E.2d 666 (1964); Commonwealth v. Williams, 224 Pa.Super. 298, 307 A.2d 289 (1973); State v. Britt, 235 S.C. 395, 111 S.E.2d 669, 682 (1959). Similarly it has been held that it is improper for the prosecuting attorney, in the presence of the jury, to comment upon the fact that the accused was unwilling to take a lie detector test. State v. Green, 254 Iowa 1379, 121 N.W.2d 89 (1963); State v. Stafford, 213 Kan. 152, 515 P.2d 769 (1973); State v. Driver, 38 N.J. 255, 183 A.2d 655 (1962). Anno. 95 A.L.R.2d 819 (Propriety and prejudicial effect of comment or evidence as to accused’s willingness to take lie detector test.)

In Kolander, a landmark authority on the point, the state argued that although results of lie detector tests are inadmissible, evidence that defendant refused to take such a test should be admitted because it demonstrated a consciousness of guilt similar to evidence of flight. The same contention is made by the state here. The Minnesota court rejected that contention and held the admission of evidence of such refusal to be prejudicial error. The court said, at p. 465: “The impact upon the minds of the jurors of a refusal to submit to something which they might well assume would effectively determine guilt or innocence, under these conditions, might well be more devastating than a disclosure of the results of such test, if given after a proper foundation had been laid showing how the apparatus functioned.”

In Mills, where the court also rejected the “consciousness of guilt” argument, it was held that prejudicial error arose in the admission of evidence that the defendant refused to undergo a lie detector test. The court criticized the prosecuting attorney for being overzealous and said that he had introduced “testimony which is uniformly held to be incompetent, in an unbroken line of authorities throughout the nation.” Similar criticisms of overzealousness on the part of the prosecutor are found in Driver and Green and may be apposite here.

In Driver the prosecutor’s comment upon the defendant’s refusal to take a lie detector test was held to be plain error and reversible although there was no objection to it. The court said at p. 658: “If the results of polygraph examinations are not competent evidence, a fortiori, refusal by a defendant in a criminal case to submit to one cannot be made the subject of testimony. In terms of degree of prejudice, the average jury, unfamiliar with the present scientific uncertainty of the tests, might very well be even more affected by proof of a defendant’s refusal to take the test than by the evidence of results adverse to him coupled with proof of its scientific imperfection.” The court characterized the prosecutor’s comment as possessing “horrendous capacity for prejudice against the defendant.”

In Carter the Supreme Court of California, en bane, held prejudicially erroneous the admission of evidence that merely implied that the defendant refused to take a lie detector test. In rejecting the State’s argument that refusal to take a lie detector test revealed consciousness of guilt, the court pointed out that lie detector tests have not yet achieved enough reliability to justify the admission of their results. At p. 674 the court said: “It therefore follows that a suspect’s willingness or unwillingness to take such a test is likewise without enough probative value to justify its admission. The suspect may refuse to take the test, not because he fears that it will reveal consciousness of guilt, but because it may record as a lie what is in fact the truth.”

In Bowen the court said that testimony concerning the accused’s refusal to take a lie detector test was “constitutionally impermissible” and rejected an argument that the error was harmless because the trial court had instructed the jury to disregard the testimony. In Britt the court held that the admission of evidence of the defendant’s refusal to take a lie detector test was prejudicially erroneous, even though the trial court instructed the jury to disregard it.

In Hegel, the court, in holding that defendant’s refusal to take a lie detector test should not have been revealed to the jury, referred to “the manifest weight of the type of testimony erroneously admitted.”

In one case, Meyer v. Commonwealth, 472 S.W.2d 479 (Ky.App.1971), the court held improper the admission of evidence of the defendant’s refusal to take a lie detector test but also held that there was other evidence of defendant’s guilt, including his own confession, which was so “overwhelming and conclusive” that reference to his refusal was harmless. In Commonwealth v. Williams, 224 Pa.Super. 298, 307 A.2d 289 (1973) a witness for the state referred to defendant’s refusal to take a lie detector test. There was no objection made in the trial court, and the appellate court, although recognizing that the evidence was inadmissible, refused to treat it as plain error.

Consideration of the foregoing authorities makes it evident that testimony or prosecutorial comment to the effect that the accused was unwilling to undergo a lie detector test is highly prejudicial. Such was the ruling in some instances where the defendant made no objection to the testimony and in others where the jury was specifically instructed to disregard it. In the case at bar the defendant made extensive objections and of course the evidence was received without limitation upon its effect. The state has not cited to this court any authority holding that it was proper to admit evidence of a defendant’s refusal to take a lie detector test. No case has been found where evidence of that type, timely attacked by proper objection, has been held to have been properly admitted.

The state argues, however, that the statements attributed to the defendant by Ingram are admissible because they “show more than the defendant’s mere unwillingness to take the test, i. e., that his refusal or unwillingness was grounded on his belief that the machine was trustworthy and that it would therefore expose his deception.” The state relies upon this language in State v. Mottram, 158 Me. 325, 184 A.2d 225, 230 (1962): “Consciousness of guilt could be shown by evidence that a witness refused to take a lie detector test on the ground that he believed the test was trustworthy or dependable. If, however, the evidence showed a contrary belief by the witness, namely, that the test was not trustworthy or not dependable, no inference of consciousness of guilt could be drawn.”

The quotation from Mottram is dictum because the holding in Mottram was that the trial court properly excluded evidence, offered by the defendant, that a witness for the state had refused to take a lie detector test.

But even in Mottram appear certain statements which serve to counter the state s argument. The court, after referring to the rule that evidence of the unwillingness of an accused to take a lie detector test is inadmissible, said at p. 228: “The underlying reason for this rule rests in- the belief that the fact finder would be unable to assess the evidence without assuming a non-existent value for lie detector tests in general.” The court also pointed out that it was dealing with the refusal of a witness and not with the refusal of the defendant to take a lie detector test and that the defendant “it may be argued is entitled to more careful treatment than the witness.”

The other authorities cited in this opinion demonstrate that evidence of a defendant’s refusal to take a lie detector test is highly prejudicial and inadmissible. To weaken that principle by giving the state an opportunity to make inquiry into the defendant’s knowledge or lack thereof concerning the reliability of a lie detector might well destroy the principle itself. It would be a time consuming expedition into the defendant’s knowledge of a collateral subject which itself has been branded inadmissible. And it would seem anomalous to hold that evidence of unwillingness could be shown if the defendant mistakenly thought that the machine was reliable but to hold that unwillingness could not be shown if the defendant knew, as almost all courts hold, that the machine was unreliable. Is it reasonable that a sophisticated accused, aware of the deficiencies of his mechanical adversary, should be protected but that the naive accused, ignorant of those deficiencies, could be confronted by evidence of his unwillingness? Ignorance owes no such price and the dictum in Mottram is unpersuasive.

Moreover, as will be seen, the defendant in the case at bar admitted conduct criminal in nature with regard to his involvement in the disposition of the body of the victim but he protested his innocence of the murder itself. Even if it is tenable that the statement attributed to him shows that he thought that lie detector results were reliable and could be used against him, any consciousness of guilt, it could be argued, was directed to his role in the disposition of the corpse and not to the offense for which he was on trial.

Finally, the state’s argument that Ingram’s testimony was admissible to show consciousness of guilt, and not “merely unwillingness to undergo the test,” is hampered by the fact that Ingram, as will be seen, also testified that the defendant told him that he, the defendant, had shot Butch. Armed with such a direct admission, if Ingram be believed, the state’s resort to an inference based on the credibility of the same witness is not convincing. It seems clear that the state offered the evidence for the purpose of inducing the jury to speculate on what a lie detector examination of the defendant would have disclosed.

The challenged testimony is tantamount to a showing that defendant was unwilling to undergo a lie detector test. The state so concedes and of course no other construction could reasonably be placed upon it. The fact that the unwillingness was evinced by a statement to a private person rather than by a refusal to a direct request by a police officer that the defendant undergo the test does not remove the case at bar from the influence of the foregoing authorities. The same reasons which served to preclude the admission of the testimony in those cases apply with equal force here.

Accordingly, this court concludes that the trial court committed error in permitting the introduction of the challenged testimony.

Resolution of the question of whether the error is a reversible one requires an analysis of the other evidence. Defendant makes no claim that the latter is insufficient to support the conviction had it been free of the toxic effects of the lie detector testimony.

The principal witnesses for the state were Ronnie Ingram and John Coker, both of whom had been promised immunity by the prosecuting attorney for their actions in the events which they recounted.

The information charged that the defendant murdered “Butch” Masters on April 24, 1974. No eyewitness to the killing was produced by the state. According to Ingram, he and Coker had a conversation with the defendant on April 23, 1974, in which the defendant inquired if Coker and Ingram would be interested in disposing of a dead body “for a certain amount of money.” If interested, the two men were to contact the defendant the next day. During this conversation Ingram asked the defendant “Is it Butch Masters?” and the defendant did not answer.

About 1:30 p. m. on April 24 Coker and Ingram went to the defendant’s place of employment and indicated their willingness to dispose of the body. The defendant told them “It is who you thought it was, Butch.” He also told them that Butch’s body was at Butch’s house under a piece of plywood near a propane tank. The defendant paid the two men $300 and promised them more money after they had disposed of the body. Later that day Coker and Ingram went to Butch’s house, found the body, took it to a remote rural area and buried it. That evening they again saw the defendant who asked them to dispose of Butch’s jacket because he, the defendant, had not had time to get rid of the jacket. The next day the defendant paid the two men $140.

In the middle of May, “a month after Butch’s disappearance,” Ingram had a conversation with the defendant at the defendant’s house, in which the defendant mentioned that Detective Lindsey had just been there. The defendant told Ingram that “they had an $80 cheek that they were trying to prosecute that he [the defendant] had wrote to Butch and that he thought he had got all the checks the day he shot Butch.” It was this conversation which included the lie detector testimony.

During the summer of 1974 the defendant made statements to Ingram, according to the latter, to the effect that the defendant “would take care of other people like he did Butch” or “I have plans for them like I did Butch.” The foregoing evidence came from Ingram.

Coker’s testimony in general coincided with that of Ingram. Coker also stated that several days after he and Ingram had disposed of the body the defendant sold Coker a shotgun and told Coker that “it had been used on Butch.” Coker stated, however, that he had never heard the defendant make any statement that he, the defendant, had killed Butch.

During cross-examination, Coker told the jury, by testimony which the state’s brief labels as “volunteered and non-responsive,” that he, Coker, had taken a lie detector test. The inference was that the results of that test were favorable to Coker’s credibility.

Testimony from other state’s witnesses showed that on April 24,1974, around noon, the defendant was with Butch at Butch’s home and the defendant “seemed to be in a hurry about something.” This evidence came from a witness who had telephoned Butch’s house and had spoken with Butch and the defendant, and from another witness who had gone to the house but had departed, leaving Butch and the defendant alone there.

The defendant, testifying in his own behalf, told the jury that he was with Butch on April 23,1974, the day before the alleged killing. On the evening of April 23, as the defendant was leaving his place of employment, he was abducted near his place of employment by three men armed with shotguns. They accused the defendant of being Butch’s partner in “the drug dealing business” and “they informed me that Butch had ripped them off for a large amount of dope and/or money and they said that Butch was where he should be, that they were going to take me out in the country.”

The defendant testified that he told his abductors that he was not involved in the “ripoff.” He said that they told him “You are going to have to prove you are not his partner,” and I said “How in the world can I do that?” Then they said “Dispose of the body.” He also said that the three men threatened the life of his wife.

The defendant said that after the three men departed he tried without success to telephone Butch. He continued his futile telephone efforts during the morning of the next day, the 24th. At noon on the 24th one of the three abductors met the defendant near his place of employment, told him Butch was dead, handed the defendant $500 and told him where the body was.

The defendant admitted having had a conversation with Coker and Ingram on the evening of the 23rd. “I told them I had been approached by what I thought were some very dangerous people that wanted a body taken care of.” The following day the defendant, according to his own admission, hired Coker and Ingram to dispose of the body, using the money which the defendant claimed he received from one of his abductors.

On cross-examination of the defendant the prosecutor interrogated him concerning the lie detector statements attributed to him by Ingram.

From the foregoing it is clear that the credibility of Ingram and Coker on the one hand, and that of the defendant on the other, vitally affected the resolution of the issue of defendant’s innocence or guilt of the offense with which he was charged. Against such a background the injection of the lie detector testimony was clearly prejudicial. Not only was it injected by the state through the challenged testimony of Ingram, there was a clear inference arising from Coker’s volunteered statement that he, Coker, had successfully passed a lie detector test. The cross-examination of the defendant with regard to the lie detector conversation added emphasis to it.

It follows that the introduction of the improper evidence entitles the defendant to a new trial.

The judgment is reversed and the cause is remanded.

All concur.


author: TITUS, Judge.

text:
    Allen B. KIPPER, Plaintiff-Appellant, v. John VOKOLEK, Defendant-Respondent, and Dorothy Adele Vokolek, Defendant-Respondent.
    No. 10057.
    Missouri Court of Appeals, Springfield District.
    Jan. 13, 1977.
    Motion for Rehearing or to Transfer to Supreme Court Denied Jan. 31, 1977.
    Application to Transfer Denied March 14, 1977.

      Jack L. Eisen, Joplin, Michael J. Maloney, Popham, Popham, Conway, Sweeny & Fremont, P. C., Kansas City, for plaintiff-appellant.
    Henry L. Graf, Kansas City, for John Vokolek.
    James H. McTurnan, Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, for Dorothy Adele Vokolek.
   TITUS, Judge.

Plaintiff sued defendants, John and Dorothy Vokolek, in the Circuit Court of Jasper County seeking money damages and equitable relief because of defendants’ alleged tort of unlawfully decoying or enticing away or harboring his two minor daughters against his will. Defendants filed separate motions to dismiss the petition for failure to state a claim upon which relief could be granted. Rule 55.27(a)(6). During a hearing on the motions the court sustained them and judgment was entered accordingly. Plaintiff erroneously filed notice of appeal “from the Order sustaining defendants’ motion to dismiss,” which is a nonappealable order. § 512.020. The appeal should have been taken from the judgment, not the order. City of Sikeston v. Missouri Utilities Co., 526 S.W.2d 401-402[1, 2] (Mo.App.1975). Nonetheless, as we attribute to plaintiff a good faith effort to appeal from the judgment, the notice of appeal will be so treated. In Interest of R. L. P., 536 S.W.2d 41, 43[7] (Mo.App.1976); World Franchisers, Inc. v. Birk, 456 S.W.2d 606, 607[2] (Mo.App.1970).

Our initial concern is with defendant Dorothy Vokolek’s motion to supplement the transcript on appeal with the “Findings of Fact, Conclusions of Law, and Judgment of Contempt,” made and entered by the Circuit Court of Jackson County at Independence on January 28,1974, in a criminal contempt proceeding against defendant John Vokolek. See Vokolek v. Carnes, 512 S.W.2d 112 (Mo. banc 1974). We deny the motion.

Omitting the citations of authority, we quote with full approval what Judge Si-meone had to say in Laclede Gas Company v. Hampton Speedway Company, 520 S.W.2d 625, 628-629[1-3] (Mo.App.1975). “It is elementary that an appellate court can review a cause only on the record presented. . . . The cases uniformly state that an appellate court must take the record as it comes without supplementation. . As to defendants’ contention that the trial court treat the motion as one for summary judgment, defendants rely on Rule 55.27(a) [which] provides that ‘. . . [i]f, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 74.04.’ This rule authorizes the court to treat a motion to dismiss as a motion for summary judgment when matters outside the pleadings are presented and not excluded. This rule is identical to Federal Rule 12(b). While the trial court is authorized to treat the motion to dismiss as a motion for summary judgment, in interpreting this rule, federal cases have required as a minimum ‘some indication by the court to “all parties” that it is treating ... [a motion to dismiss for failure to state a claim] as a motion for summary judgment ‘. . . It is important that the court give the parties notice of the changed status of the motion [to dismiss] and a “reasonable opportunity to present all material made pertinent to such a motion by Rule 56” [Rule 74.04]’ .... This was not done here. There was no indication in this case that the trial court considered the motions to dismiss as ones for summary judgment under Rule 74.04. There is nothing in the record to show either that the trial court notified the parties that it was treating the motions as ones for summary judgment or that the parties were given reasonable opportunity to present all material pertinent to a motion for summary judgment. Rule 55.27.”

Having concluded that sustention of the motions to dismiss for failure to state a claim was not done through a transforma-tive process which changed the motions into ones seeking summary judgment, in considering the propriety vel non of the trial court’s order we are confined to the face of the petition which we construe liberally and favorably to the plaintiff, according him the benefit of all inferences fairly deducible from the facts stated. Hall v. Smith, 355 S.W.2d 52, 55[1] (Mo.1962). If the aver-ments of that pleading invoke principles of substantive law which may entitle plaintiff to relief, we must conclude the motions were improperly granted. Ingalls v. Neufeld, 487 S.W.2d 52, 54[4] (Mo.App.1972).

Count I of the petition says the involved minor children are those of plaintiff and defendant Dorothy Vokolek and that by reason of a divorce action in the Circuit Court of Jackson County, Missouri, at Independence, the children “were and are subject to the orders of the aforesaid court as to their custody.” Plaintiff alleges that he obtained three orders from the Circuit Court of Jackson County, as follows:

Order of October 31, 1973 — “On oral motion of [plaintiff] and for good cause it is Ordered that [plaintiff] be, and he is hereby, granted custody of his daughters . for the purpose of bringing these children before the Court for further inquiry into the circumstances of their present custodial situation and the allegation of [plaintiff] that [defendant Dorothy Vokolek] intends to remove the children from this jurisdiction and transport them to a place of residency in British Hondouras [sic]. It is further Ordered that [plaintiff] report to the Court by 11:00 A.M. tomorrow with the children in his custody [and] that [defendant Dorothy Vokolek] be, and she is hereby, prohibited from removing the children from the State of Missouri.”

Order of November 14, 1973 — “On oral motion of [plaintiff] and for good cause shown it is Ordered that [defendant Dorothy Vokolek] immediately turn over to [plaintiff] their two daughters who are wards of this Court. It is further Ordered that [plaintiff] within one week after obtaining actual custody of [the children] bring them before the Court for further proceedings [and] that until [the children] are brought before the Court their father [plaintiff] shall have exclusive legal custody of them.”

Order of December 20, 1973 — “[Plaintiff’s] motion for custody of [the children] having come on for evidentiary hearing on December 20,1973, it is Ordered that [plaintiff’s] motion be, and it is hereby sustained, and it is further Ordered that the custody of [the children] granted to [plaintiff] on October 31,1973, pending further hearing is hereby made permanent, subject only to modification by further Order of this Court for good cause shown, and that [plaintiff’s] obligation to make child support payments to [defendant Dorothy Vokolek] terminated on October 31, 1973.”

The petition additionally avers that the order of October 31 was served on defendant Dorothy Vokolek “in the presence and knowledge of defendant John Vokolek," and that the order of November 14 was served on defendants in Corozal, British Honduras, where they were located with the children. It is not stated whether the last order of December 20 ever reached defendant’s attention. The petition alleges, however, that defendants have never given plaintiff custody of the children, all “in defiance of the lawful orders” of the Circuit Court of Jackson County, and that by reason of defendants’ “enticement and concealment” of the children, plaintiff has been and in the future will be required to expend substantial amounts of money to locate and regain custody of the children, that plaintiff has suffered “great anxiety and mental distress,” and “has lost companionship and affection of the children as a result of the actions of the defendant [sic].” Count I prays for $30,000 actual and $30,000 punitive damages against the defendants.

Count II of the petition realleges and incorporates by reference all allegations contained in Count I. It adds that because defendants are before the court with power to return the children to plaintiff, and because the court should afford to plaintiff “full, complete and adequate relief,” the court should issue its “order that defendants herein produce the children into this court and that they be delivered to plaintiff.”

Reported cases dealing with the tort alleged by plaintiff usually involve actions instituted by parents or a parent against third persons. Thus, “[o]ne who knowingly and designedly decoys a minor from his home, so as to deprive the parents of his services, or harbors a minor who has left home against the will of his parents, commits a tort, and is answerable.” Arnold v. St. Louis & S. F. R. Co., 100 Mo.App. 470, 471-472, 74 S.W. 5 (1903). Absent a statute giving both parents joint and equal care and custody of minor children, it was earlier said that if the parents were living together the father was the proper parent to maintain the suit because he had the exclusive right over the mother to the child’s services. However, if the father died or had waived or forfeited such a right, or when the parties were divorced and the mother had been awarded the care and custody of the child, then she was the proper party to sue. 67 C.J.S. Parent and Child § 101(b), p. 852. The tort may be actionable between parents of the child where, by proper judicial decree, the sole custody of the child has been awarded to one of the parents. In such instances, the parent not awarded custody may be liable to the other for the abduction of his own child, or may be liable to the other if, with knowledge that the child has left the home of the parent having custody against the latter’s will, induces the child not to return thereto or prevents it from so doing. Restatement, Torts § 700. If one parent is guilty of the tort in question, a third person who aids, abets or conspires with the parent tortfeasor may also be liable to the parent who has been wronged. Rosefield v. Rosefield, 221 Cal.App.2d 431, 34 Cal.Rptr. 479, 482[6] (1963). On the other hand, it has been held that no cause of action based on the tort involved here would lie in favor of a father against a mother’s having lawful custody of the child who removed it from the state to a foreign country. It was said that the father’s relief would repose in a cause incidental to the matrimonial action [motion to modify] or by way of contempt, but not by an action for damages. McGrady v. Rosenbaum, 62 Misc.2d 182, 308 N.Y.S.2d 181, 187-188[4, 5] (1970), aff’d, 37 A.D.2d 917, 324 N.Y.S.2d 876 (1971). Under the rules stated, supra, there must be some affirmative act of decoying or enticing away in order to render one liable in an action based on enticement, and for one to be guilty of harboring, there should be proof of conduct which induces the child not to return to the parent having legal custody or which prevents the child from so doing. 59 Am.Jur.2d, Parent and Child, § 108, pp. 206 — 208; Restatement, Torts, supra. To prove an enticement, it is not necessary to show the child was in the actual possession of the parent having the right to legal custody when the abduction occurred. Where a petition alleged the child was only temporarily with the mother and that the father was entitled to custody when the mother took the child out of the court’s jurisdiction and secreted it with the aid and assistance of a codefendant, it was ruled the petition stated a cause of action against the mother and her codefendant. Howell v. Howell, 162 N.C. 283, 78 S.E. 222, 224 (1913).

While the petition does not state in so many words that custody of the children was awarded to defendant Dorothy Voko-lek, the mother, by the Circuit Court of Jackson County “by reason of a divorce action," we believe such a fact is reasonably inferable from the averments of the pleading. Therefore, as the parties have done in their briefs, we proceed on the basis that defendant Dorothy Vokolek was vested with legal custody of the children when plaintiff initially undertook to amass the orders of the Circuit Court of Jackson County as alleged in his petition, and that whether or not defendant Dorothy Vokolek, with the aid and assistance of defendant John Vokolek, unlawfully enticed the children away from plaintiff or unlawfully harbored them from plaintiff is dependent upon a determination of the validity vel non of one or more of the three orders of the Circuit Court of Jackson County. While we note that this action was commenced by plaintiff on November 9,1973, or before the orders of November 14 and December 20 were made, we are obliged to consider all the orders, as the action was dismissed on the plaintiff’s second amended petition filed March 21, 1974. We likewise observe that the operative facts in the instant case which occurred in the Circuit Court of Jackson County arose before the effective date (January 1, 1974) of the Dissolution of Marriage law. §§ 452.300 et seq.

An original decree of divorce and any proper modification thereof as it relates to the rights of the parties to custody of minor children are final and binding and cannot be disturbed except upon a proceeding and hearing for that purpose. Hayes v. Hayes, 363 Mo. 583, 589, 252 S.W.2d 323, 328[10] (1952). Assuming survival of all interested persons, the divorce court which awards child custody retains continued exclusive jurisdiction of the matter until the minor reaches majority. Tripp v. Brawley, 261 S.W.2d 508, 510[2] (Mo.App.1953). A motion to modify a divorce decree to change a prior award of child custody is in the nature of an independent proceeding and the motion is treated as a petition in an independent proceeding [Mahan v. Mahan, 239 Mo.App. 317, 319, 192 S.W.2d 626, 627[2] (1946)] that must state a claim upon which relief can be granted. Engler v. Engler, 455 S.W.2d 36, 37-38[1] (Mo.App.1970). An essential prerequisite to the modification of a divorce decree is notice to the party adversely affected, and a modification without proper notice is, of course, a violation of due process. Mo.Const. art. 1, § 10; Greene v. Greene, 368 S.W.2d 426, 428[3] (Mo.1963). The power to review and alter a prior custody order is dependent not only upon the giving of proper notice, but also upon proper application being made [Rule 55.26(a); C_C_ v. J_A_C_, 499 S.W.2d 809, 812 (Mo.App.1973)], and an order purporting to rule on a motion to modify without a hearing at which evidence is adduced is in excess of the court’s jurisdiction. In re Lipschitz, 466 S.W.2d 183, 185[4] (Mo.App.1971).

We are of the opinion the three orders of the Circuit Court of Jackson County were ineffective and void insofar as they undertook to modify the decree of divorce or any former decree of modification awarding the custody of the children to defendant Dorothy Vokolek. There is nothing to show that proper notice had ever been given the mother on any motion made by the plaintiff. But disregarding the matter of notice because the presence or absence thereof is not shown by the petition or orders, it is evident that the October 31 and November 14 orders were not made during a hearing or a trial and were made “On oral motion” of the plaintiff in disregard of the mandatory requirements of Rule 55.26(a) that “An application to the court for an order shall be by motion which . shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.” (Our emphasis). The orders were given without proper application being made. Neither of the first two orders issued following a hearing at which evidence was adduced and were made, therefore, in excess of the court’s jurisdiction. In re Lipschitz, supra, 466 S.W.2d at 185[4]. Moreover, the order of October 31 does not purport to modify a prior decree or order so as to place the children in plaintiff’s lawful custody — it simply undertakes to give plaintiff temporary custody as the court’s pseudo-posse comitatus to bring the children into court on the morrow “for further inquiry into the circumstances of their present custodial situation.” It did not purport to deal with permanent custody or to modify any previous decree or order with reference to permanent custody. Foster v. Foster, 300 S.W.2d 857, 869 (Mo.App.1957). “A thing is void which was done against the law at the very time of the doing it, and no person is bound by such act.” Lord Bacon, as quoted in Tudor v. Tudor, 80 Vt. 220, 67 A. 539, 130 Am.St.Rep. 977 (1907). Consequently, the court’s undertaking in its December 20 order to make permanent what it had done on October 31, could not breathe life or legality into that void order, and, at best, could only make permanent that which was already void.

As plaintiff’s petition did not plead facts showing his lawful entitlement to the custody of his daughters at the time the averred tort was committed, he did not plead facts upon which relief could be granted for the alleged enticing away or harboring of the children against his will.

The judgment nisi is affirmed.

All concur.

      . References to rules and statutes are to Missouri Supreme Court Rules of Civil Procedure, V.A.M.R., and to Missouri Revised Statutes, V.A.M.S.

      . Plaintiff in the instant action was the defendant in the divorce case. However, we have changed the designations used by the Circuit Court of Jackson County to make uniform our references to the parties in this opinion.


author: BILLINGS, Chief Judge.

text:
    Ralph C. BURROW, Movant-Appellant, v. STATE of Missouri, Respondent.
    Nos. 10181 and 10199.
    Missouri Court of Appeals, Springfield District.
    Jan. 14, 1977.
    Motion for Rehearing or Transfer Denied Feb. 7, 1977.

      G. Michael Baker, Springfield, for mov-ant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before BILLINGS, C. J., and FLANI-GAN and HOGAN, JJ.
   BILLINGS, Chief Judge.

Appellant Ralph C. Burrow’s motion to vacate sentence and judgment for first degree robbery was denied by the Circuit Court of Greene County without an eviden-tiary hearing. We affirm.

Appellant’s stated ground for postconviction relief under Rule 27.26, V.A.M.R., is that his “[Gjuilty pleas [sic] was invalid as not properly given.” The allegations contained in his motion as supportive of this claim are as follows:

“Counsel for Movant answered when judge asked if he were guilty.
Judge did not ask Movant to describe crime or his part.
Movant was not sworn under oath concerning his guilty plea.
Judge did not ask State to describe evidence in detail.
There was no evidence of guilt by Mov-ant.
The guilty plea is invalid under U. S. v. Vera, [5 Cir.], 514 F.2d 102 (1974).”

In the instant proceeding the trial court reviewed the transcript of the 1974 guilty plea proceeding and concluded appellant’s plea was voluntarily given and he was not entitled to the relief sought.

The guilty plea transcript reflects that as the result of plea bargaining between the prosecuting attorney and appellant’s attorney the appellant had agreed to plead guilty to count one of a two-count information and the second count would be dismissed by the state. After the judge had been advised of the foregoing, he administered the oath to the appellant and proceeded to interrogate the appellant at length as to the latter’s understanding of his various rights, the range of punishment, the voluntary nature of the proposed plea, and appellant’s familiarity with the charge to which he desired to enter his plea. Appellant admitted he was guilty of the crime charged in count one. The judge then permitted withdrawal of appellant’s earlier plea of not guilty and accepted his guilty plea.

“A 27.26 movant, in order to be entitled to an evidentiary hearing, must plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by facts elicited at the guilty plea hearing.” Smith v. State, 513 S.W.2d 407, 411 (Mo. banc 1974), cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975); Hogshooter v. State, 514 S.W.2d 109, 113 (Mo.App.1974).

Appellant’s ground for relief and his alleged “facts” are refuted by the guilty plea transcript. An evidentiary hearing was not required and the court did not err in summarily denying the motion.

The judgment is affirmed.

All concur.


author: HOGAN, Judge.

text:
    Patricia R. BEGEY et al., Plaintiffs-Respondents, v. PARKHILL TRUCKING COMPANY, Employer-Appellant, and Carriers Insurance Company, Insurer-Appellant.
    No. 9826.
    Missouri Court of Appeals, Springfield District.
    Jan. 17, 1977.
    Motions for Rehearing or Transfer to Supreme Court Denied Feb. 4, 1977.
    Application to Transfer Denied March 14, 1977.

      L. R. Buehner, Buehner & Buehner, Joplin, for employer and insurer-appellants.
    Herbert Douglas, Douglas, Douglas & Douglas, Neosho, for plaintiffs-respondents.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   HOGAN, Judge.

Asserting that her husband, Frank Be-gey, died as the result of injuries arising out of and in the course of his employment, Patricia Begey sought death and dependency benefits for herself and two minor children under the Workmen’s Compensation Act. The referee denied compensation. On appeal, the Industrial Commission reversed the referee and entered an award of compensation under § 287.240, RSMo Supp.1973. The Circuit Court of Jasper County affirmed the award. The employer and insurer have appealed.

Frank Begey was an over-the-road truck driver. The employer and insurer have admitted that Begey was Parkhill’s employee at the time of his death on August 9, 1972. Having “dropped” a loaded trailer at Tinker Air Force Base, Begey arrived at Parkhill’s branch terminal near Oklahoma City about 6:45 p. m. August 8. He was then “out of hours” and was required by federal regulation to take an 8-hour break, but he indicated that he wanted to go to Joplin as soon as possible to be present for his step-daughter’s wedding. O. J. Austin, another truck driver, testified that Begey attempted to obtain fuel at the terminal early in the evening on August 8, but because it was raining the pump was “shorted out” and inoperative. Begey was advised that the nearest fuel stop was located at Interstate 35 and 44th Street in Oklahoma City.

Begey took his break; he was in fact ineligible to drive until it was completed. There was evidence, largely diversionary, that he drank some intoxicants during his rest period, but he later drank some coffee, slept an hour or more in his tractor, and was able to drive by the end of his break. There were no loaded trailers available at the Oklahoma City terminal, and Begey at first proposed to “bobtail” straight to Joplin. Later it was discovered that a loaded trailer was available at Savanna, Oklahoma. Begey was dispatched to “bobtail” and “deadhead” to Savanna, pick up the loaded trailer and proceed to Joplin. The evidence is in conflict as to the time Begey left the terminal; he had been dispatched to leave at 5:00 a. m., but was free to leave earlier and apparently did so. About 3:30 a. m. on August 9, Begey lost control of his tractor near the intersection of Robinson and 29th Streets in Oklahoma City, ran into a building and was killed. This proceeding followed.

In this court the appellants have expended considerable effort developing basic principles which govern claims under the Workmen’s Compensation Act. For example, they cite precedents which illustrate that the claimants had the burden to establish that Begey’s injuries arose both “out of” and “in the course of” his employment. Such is indeed the requirement of the statute. § 287.120(1), RSMo 1969, V.A.M.S.; Fowler v. Baalmann, 361 Mo. 204, 212, 234 S.W.2d 11, 16 (banc 1950); Cowick v. Gibbs Beauty Supplies, 430 S.W.2d 626, 630 (Mo.App.1968). We likewise agree that an injury arises “out of” the employment if it is a natural and reasonable incident thereof and is the rational consequence of some hazard connected with the employment, and arises “in the course of” the employment when it occurs within the period of employment, at a place where the employee may reasonably be and while he is reasonably fulfilling the duties of his employment. Conley v. Meyers, 304 S.W.2d 9, 12 (Mo.1957); Griffin v. Doss, 411 S.W.2d 649, 652 (Mo.App.1967).

We may dispense with the argument that Begey’s injuries and death did not arise “out of” his employment. Begey was employed as a truck driver; he met his death as the result of a street accident, and in our opinion it cannot be argued his death was not the result of a hazard connected with his employment. Neither do we find any contention raised, either before the Commission or here, that the injury did not occur during the period of Begey’s employment; in fact, as we understand the employer and insurer’s stipulation or admission before the referee, Begey was “in the employ” of Parkhill at the time he died. The focus of the appellants’ argument is that there is no competent and substantial evidence on the whole record which establishes that Begey was killed at a place where he might reasonably be, while he was reasonably fulfilling the duties of his employment or doing something incidental thereto.

Appellants argue first that “for some several hours before his fatal accident [Begey] was off duty and not in an employment status.” We cannot agree. There was some evidence, as noted, that Begey consumed some intoxicants during his break, but we conclude, as did the referee and the Commission, that the evidence of Begey’s drinking at the beginning of his break is not germane in view of the further evidence that he was sober, well-oriented and able to drive before he left the Oklahoma City terminal. See Phillips v. Air Reduction Sales Co., 337 Mo. 587, 595, 85 S.W.2d 551, 555 (1935); O’Neil v. Fred Evens Motor Sales Co., 160 S.W.2d 775, 779 (Mo.App.1942). Begey’s rest period was part of his employment. Patton v. Patton, 308 S.W.2d 739, 743 (Mo.1958). In the circumstances, Begey was, as appellants put it, “in an employment status” during his rest period at the terminal.

Appellants further argue that because Begey was “going away from his area of employment” and was actually going away from the place where he could obtain fuel, and because there was no competent and substantial evidence that he needed fuel, the Commission could not have found that Begey was at a place where he might reasonably be, reasonably fulfilling the duties of his employment or doing something incidental thereto. In advancing this argument, the appellants urge us to adopt the finding of the referee, but in this connection we bear in mind that the findings of the referee are in no way binding upon the Commission; the Commission reviews the record, determines the credibility of the witnesses and the weight to be given their testimony, resolves any conflicts in the evidence and reaches its own conclusions independently of the referee’s findings. McAdams v. Seven-Up Bottling Works, 429 S.W.2d 284, 287 (Mo.App.1968). It is the award of the Commission, not the finding of the referee, which we review, Michler v. Krey Packing Co., 363 Mo. 707, 716, 253 S.W.2d 136, 140 (banc 1952); McAdams v. Seven-Up Bottling Works, supra, 429 S.W.2d at 287, and we are required to construe the whole record in the light most favorable to the findings and award of the Commission; when the evidence and inferences are conflicting, resolution rests with the Commission and that resolution is conclusive on the reviewing court. Bradshaw v. Richardson Trucks, Inc., 467 S.W.2d 945, 947 (Mo. banc 1971); Brown v. Missouri Lumber Transports, Inc., 456 S.W.2d 306, 307-308 (Mo.1970).

If it can be reasonably inferred here that Begey’s purpose in leaving the terminal was to prepare his tractor for further over-the-road use, he was engaged in activity incident to his employment. See Hammack v. Nicholson, 539 S.W.2d 788 (Mo.App.1976) (driver disposed of an unusable load of hot mix so truck would be available later); Donahue v. Adams Transfer & Storage Co., 230 Mo.App. 215, 220, 88 S.W.2d 432, 435 (1935) (driver repaired truck so it would be available on call). The record discloses that Begey did not merely inquire about fuel on the night of August 8; Austin testified that he saw Begey attempt to obtain fuel at the terminal, but “[t]he fuel pump there was shorted out and fuel was not available.” Austin directed Begey to a fueling station near the intersection of 1-35 and 44th Street. There was evidence from the terminal manager that the terminal “had problems with [its] pump.” “When it rained, it seeped into the cables; [they] could not pump fuel because it would blow all of [their] fuses when it was raining.” We know from the record that Begey could expect fuel mileage varying from 4½ to 7½ miles per gallon, that he was dispatched to travel at least 130 miles to Savanna, and it may be inferred that he had been on the road at least 12 hours before he reached the terminal at Oklahoma City. We conclude, as did the Commission, that it may be reasonably inferred that Begey needed fuel and intended to locate a source of fuel before leaving Oklahoma City.

The appellants argue at length that Be-gey could not have been going after fuel because the site of the accident was “completely off of any route that [Begey] might have been on, if he was going to Savannah [sic] or Joplin”. They point out that the accident occurred one to three miles west of 29th Street’s intersection with 1-35, where Begey should have turned onto 1-35 to reach the source of fuel nearest the terminal. In this connection, several circumstances must be borne in mind. Begey’s employment with Parkhill was fairly recent at the time he was killed; he had been employed about two months. It is reasonable to suppose that he was not entirely familiar with all the places along the routes ordinarily followed by Parkhill drivers. Further, to turn south on 1-35, or Gary Expressway, from southeast 29th Street, a driver going west (as Begey would have been going) must travel over the interstate and then turn sharply left to enter the southbound lane or lanes of the expressway. The record indicates there is only “one sign” indicating the exit from southeast 29th onto southbound 1 — 35; there is also evidence that it was raining when Begey left the terminal. In addition, the road maps introduced by the parties demonstrate quite clearly that the “downtown area” of Oklahoma City, where Begey’s death occurred, is a literal maze of interstate clover-leaves and overpasses in which any driver might become temporarily disoriented if he were driving in the rain at 3:30 a. m. The fact that Begey’s accident occurred some distance from the intersection where he should have turned south permits, but certainly does not require, the inference that he had deviated from his normal route.

Finally we must bear in mind the following facts and circumstances: Begey had been dispatched to Savanna and was free to leave earlier than 5:00 a. m., the departure time called for. Parkhill paid nothing for “bobtail” miles; if Begey picked up no loaded trailer at Savanna, he was obliged to absorb the cost of traveling “bobtail” or “bobtail and deadhead” from the total received for the use of his equipment. Begey had a financial interest in picking up a loaded trailer at Savanna. It is of no consequence that the whole trip may incidentally have served some purpose of his own, if Begey’s trip also served his employer’s purpose, and it was not necessary that the interest of the employer be the dominant cause of the trip. Hammack v. Nicholson, supra, 539 S.W.2d at 791. We conclude, as did the Commission, that conflicting inferences can be drawn from the evidence; we are therefore concluded by their resolution of the inferences, Bradshaw v. Richardson Trucks, Inc., supra, 467 S.W.2d at 947, and accordingly the award of compensation is affirmed.

All concur.

      . Drive the tractor without a trailer.

      . To move without a load of any kind.


author: GUNN, Judge. KELLY, Presiding Judge,

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gary Gene WILLIAMS, Defendant-Appellant.
    No. 36168.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Jan. 18, 1977.
    Motion for Rehearing or Transfer Denied Feb. 16, 1977.
    Application to Transfer Denied March 14, 1977.

      Springfield Baldwin, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, William F. Arnet, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., James A. Roche, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Defendant was found guilty of possessing phenmetrazine, a Schedule II controlled substance, in violation of § 195.020 RSMo. 1969. Having stipulated to at least one prior felony conviction, the defendant was sentenced to five years imprisonment; he appeals.

The defendant, while driving an automobile with two passengers, was stopped by St. Louis Police Officers Kruz and Stewart for a traffic violation. Officer Kruz approached the driver’s side of the car and spoke to defendant. Officer Stewart, looking in the auto from the front seat passenger side, noticed two hypodermic syringes in plain view on the floor of the car. Defendant and the two passengers were placed under arrest and searched. Officer Kruz, searching defendant’s front trousers pocket, found a vial containing a few drops of a clear liquid and a brown glass bottle. Police laboratory tests disclosed that the clear vial contained phenmetrazine.

Defendant first contends that the information charging him with violating § 195.-020 was defective in that it failed to charge him with possession of a narcotic with knowledge of the presence and character of the controlled substance; that, therefore, the information did not allege all of the essential elements of the offense charged as required by Rule 24.01.

The pertinent portion of the information under attack reads:

“That GARY GENE WILLIAMS, at the City of St. Louis, State of Missouri, on the 18th day of April 1973, did unlawfully and feloniously have in his possession PHENMETRAZINE, a Schedule II Controlled substance; contrary to the form of the Statute in such case made and proviced (sic), and against the peace and dignity of the State.”

Defendant argues that while he is charged with “unlawfully and feloniously” possessing phenmetrazine, the information should have provided that he knowingly, unlawfully and feloniously was in possession of the controlled substance. While this point is raised for the first time on appeal, we must review the sufficiency of the information under Rule 28.02. State v. Meiers, 412 S.W.2d 478 (Mo.1967).

We agree that the State must prove that the defendant “was aware of the presence and character of the particular substance, and was intentionally and consciously in possession of it” (original emphasis) State v. Polk, 529 S.W.2d 490, 492 (Mo.App.1975). See also State v. Burns, 457 S.W.2d 721 (Mo.1970); State v. Roberts, 524 S.W.2d 174 (Mo.App.1975); State v. Berry, 488 S.W.2d 667 (Mo.App.1972). And, indeed, the jury was properly instructed that to find the defendant guilty, it was necessary to find that he did “willfully, unlawfully and feloniously” possess phenmetra-zine. The issue, then, for this case is whether the information which charged the defendant with unlawful and felonious possession of the controlled substance is sufficient without the inclusion of the words “knowingly” or “wilfully.” We hold that it is and find that there is ample precedent for our holding.

In State v. Davis, 510 S.W.2d 790, 791 (Mo.App.1974), the information against defendant charged that he “did then and there unlawfully and feloniously have in his possession a quantity of marijuana . .” (emphasis added). In upholding the sufficiency of the information, it was held “that all substantive elements of the felony offense were charged in the information.” Id., at 792. In State v. Worley, 375 S.W.2d 44, 47 (Mo.1964), an information charging the defendant with “unlawful possession or control” of marijuana in violation of § 195.020 was held sufficient. The defendant in State v. Virdure, 371 S.W.2d 196 (Mo.1963), urged that an information charging him with “unlawfully and feloniously” having a controlled substance in his possession or under his control was duplicitous and did not sufficiently apprise him of the crime with which he was alleged to have committed. The court rejected defendant’s contention and found the information sufficient. See also State v. Meiers, supra, approving and holding sufficient an information similar to those in State v. Virdure, supra, and State v. Worley, supra. As an information charging the defendant with unlawfully and feloniously possessing a controlled substance was held to contain all substantive elements of the violation of § 195.020 in State v. Davis, supra, a like result must be reached in the case before us. We therefore find that the information in this case sufficiently charged the defendant with possession of phenmetrazine in violation of § 195.020.

State v. Sledge, 471 S.W.2d 256 (Mo.1971), reinforces our decision. In that case, the information charged that the defendant “did wilfully, unlawfully and feloniously have in [his] possession and under [his] control [narcotic drugs].” Id., at 259. On appeal the defendant asserted that the information was insufficient in that it failed to allege that the defendant “knowingly” had narcotics in his possession. In responding to this point, the court stated:

“Not only did the questioned information charge defendant ‘wilfully’ possessed the drugs — which connotes knowledge— but the exact point in issue was ruled in State v. Napolis, supra, wherein it was held, Mo., 436 S.W.2d 645 loc. cit. 647 [1]: ‘Knowledge that the drug is a barbituate or stimulant is not specified as an element of the offense by the language of the statute. Consequently, it was not necessary for the information against defendant to allege knowledge or criminal intent if the State has the right to prohibit such possession, . . . ’ See also Supreme Court Rule 24.11, V.A.M.R.” Id., at 259.

We recognize that the word “wilfully” was included in the Sledge information, but it’s manifest from the holding that even that word would not be essential for the sufficiency of the information.

We also observe that cases defining “feloniously” and “unlawfully” have found these words to connote intentional and wilful acts. In State v. Weir, 506 S.W.2d 437, 439 (Mo.1974), the court held that the use of “feloniously” — as surrogate for the statutory language: “with the intent to cause,” § 559.240 RSMo. 1969 — was sufficient to inform the defendant that he was charged with “an intentional and wilful act of wrongdoing”. And in State v. Stavricos, 506 S.W.2d 51 (Mo.App.1974), the phrase “unlawfully and feloniously” was said to import intentional acts. Id., at 56. Thus, the use of “unlawfully and feloniously” in the information in the case before us put the defendant on notice that his possession of phenmetrazine was intentional and wilful. We also observe that the failure to include “knowingly” in the information did not place defendant or his counsel at any disadvantage, for the verdict directing instruction did contain all the necessary elements of the crime. Further, there was no complaint made by defendant or his counsel at any time before, during or after trial that either was not fully cognizant of the charge.

Also directly in point is State v. Connor, 318 Mo. 592, 300 S.W. 685 (1927). There, the appellant attacked the sufficiency of an information similar to the one being reviewed here which charged him with the unlawful transportation of moonshine. The Supreme Court held the information sufficient by stating, 1. c. 686:

“The sufficiency of the information is further challenged because the word ‘willfully’ is omitted from the charging part of the same. It should first be noted that the information charges the act to have been done ‘unlawfully and feloni-ously.’ The use of these words import an exercise of the will or that the act was done ‘willfully,’ unless the statute defining the crime makes willfulness an element thereof.”

The court then noted that the word “willfully” did not appear in the statute defining the crime. The aptness of State v. Connor, supra, to this case is remarkable and apparent.

The defendant raises additional points on appeal, none of which is preserved for appellate review. Nor do we find that a review of the alleged points of error is required by Rule 27.20(c), and defendant’s reliance on plain error is unavailing. State v. Gibson, 540 S.W.2d 952 (Mo.App.1976); State v. Richards, 536 S.W.2d 779 (Mo.App.1976); State v. Johnson, 536 S.W.2d 851 (Mo.App.1976).

Defendant alleges that the chain of custody of the clear vial was broken and that the quantity of phenmetrazine was an immeasurable trace and insufficient to raise the inference of knowing possession. Neither contention was contained in defendant’s motion for new trial; hence, neither is preserved. State v. Flynn, 541 S.W.2d 344 (Mo.App.1976); State v. Belleville, 530 S.W.2d 392 (Mo.App.1975).

Defendant next argues that there was no admissible evidence to prove that phenmetrazine was a controlled II substance. This point was raised only in defendant’s motion for judgment of acquittal at the close of the State’s case. The defendant then presented evidence on his own behalf and therefore waived error with respect to the overruling of the motion. State v. Green, 476 S.W.2d 567 (Mo.1972); State v. Lewis, 526 S.W.2d 49 (Mo.App.1975); State v. Winters, 525 S.W.2d 417 (Mo.App.1975).

The defendant also contends that prosecutorial comments on cross-examination of the defendant and in closing argument were unduly prejudicial. Defendant’s motion for new trial makes no complaint with regard to the prosecutor’s action and, consequently, this point has not been preserved for review. State v. Jines, 539 S.W.2d 801 (Mo.App.1976); State v. Flynn, supra; State v. Belleville, supra. The prosecutor’s comment was that the defendant had more convictions “than you can count.” While the prosecutor’s observation was perhaps overzealous, there was some confusion on the defendant’s part as to the total number of his prior convictions. But it was clear that defendant’s conviction record was fulsome and that he was a confirmed recidivist. We do not find the prosecutor’s comment to be plain error.

Finally, defendant asserts that he is unable to have a full and fair review of his appeal due to the destruction or loss of the State’s exhibits. As we are not reviewing the merits of any of defendant’s points of appeal to which such exhibits would be relevant, we need not discuss or decide this point.

The judgment is affirmed.

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

KELLY, Presiding Judge,

concurring.

While I concur in the result reached here, I do so only because I feel constrained to do so by the case law of the appellate courts of this State which have set the precedent followed by the opinion herein. State v. Connor, 318 Mo. 592, 300 S.W. 685 (1927); State v. Virdure, 371 S.W.2d 196 (Mo.1963); State v. Worley, 375 S.W.2d 44 (Mo.1964); State v. Sledge, 471 S.W.2d 256 (Mo.1971); State v. Stavricos, 506 S.W.2d 51 (Mo.App.1974); and State v. Davis, 510 S.W.2d 790 (Mo.App.1974).

Article I, Sec. 18(a) of the Constitution of Missouri, 1945, requires that “in criminal prosecutions the accused shall have the right . . . ; to demand the nature and cause of the accusation.” Rule 24.01 provides that “the indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” See also State v. Brooks, 507 S.W.2d 375 (Mo.1974); State v. Todd, 477 S.W.2d 725, 728 (Mo.App.1972). From the earliest times in Missouri it has been held that a defendant’s right to know “the nature and cause of the accusation”, means that “. . . it is necessary to allege in an information or indictment all the elements of the crime intended to be charged, . . . (and) if such elements are missing they cannot be supplied by in-tendment or implication.” (Emphasis supplied.) State v. Cantrell, 403 S.W.2d 647 (Mo.1966); State v. Brooks, supra, 507 S.W.2d l. c. 376; State v. Osborn, 526 S.W.2d 37 (Mo.App.1975). To test the sufficiency of an information or indictment we must determine whether it alleges all of the elements or ingredients of the offense charged, clearly apprising both the defendant and the court of the facts constituting the offense and whether a conviction or acquittal of the charge would bar any subsequent prosecution for the same offense. State v. Bott, 518 S.W.2d 726 (Mo.App.1974). Where the statute defining the crime contains all of the elements of the offense, it is sufficient that the indictment or information allege the offense in the terms of the statute. State v. Kesterson, 403 S.W.2d 606, 609 (Mo.1966); State v. Cunningham, 380 S.W.2d 401, 403 (Mo.1964). Where, however, the statute requires a certain state of mind, e. g. intent or knowledge, it is essential that the indictment or information allege that state of mind, intent or knowledge necessary to constitute the crime therein defined. State v. Harris, 313 S.W.2d 664, 670[7] (Mo.1958); State v. Thomas, 343 S.W.2d 56, 57 (Mo.1961). This principle — that where the statute makes a particular intention essential to charge an offense — applies to cases where the statute contains no state of mind requirement but the particular intention is required by common law judicial decisions. State v. Harris, supra, l. c. 669.

These principles are, I believe, applicable to this case, because Section 195.020 makes the possession of a controlled substance a crime. Although the statute does not require a particular state of mind as an element of the offense, the courts of this State have held that in order to make a submissi-ble case under the statute it is necessary that the State prove that the defendant “did knowingly and intentionally have in his possession the prescribed controlled substance. It is not sufficient that it prove only actual or constructive possession, but the test is whether the defendant was aware of the presence and character of the particular substance, and was intentionally and consciously in possession of it.” State v. Polk, 529 S.W.2d 490, 492 (Mo.App.1975) (emphasis in original); see also State v. Burns, 457 S.W.2d 721 (Mo.1970); State v. Roberts, 524 S.W.2d 174 (Mo.App.1975); State v. Berry, 488 S.W.2d 667 (Mo.App.1972); Annot., 91 A.L.R.2d 811, 821 (1963).

As our Supreme Court stated in State v. Burns, supra, l. c. 724: “Possession without knowledge of such possession is not possession in the legal sense of that word”.

By judicial decision knowledge of possession of a controlled substance is an essential ingredient of the offense; I, therefore, believe that under the authorities supra knowledge is an essential element of the offense which should be charged in the information or indictment alleging the offense; and since this information fails to include an allegation that Gary Gene Williams, the defendant here, possessed the proscribed controlled substance with knowledge of the presence and character thereof, I would, were I not bound by precedents, hold the information fatally deficient. It is my belief that to hold otherwise is to continue toleration of pleadings which neither comply with the constitutional mandate contained in Article I, Sec. 18(a) of the Constitution nor with the requirement of Rule 24.01.

      . Section 195.020 RSMo. 1969 reads:
      “It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this law, or to possess any apparatus, device or instrument for the unauthorized use of narcotic drugs.”

      . Rule 24.01 requires that: “The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” See also State v. Brooks, 507 S.W.2d 375 (Mo.1974).

      . The issue of defendant’s being conscious of the possession of phenmetrazine has not been raised and is not before us.

      . The State, of course, is not required to account for hand to hand custody of the evidence or continually watch it to establish chain of custody. State v. Lange, 536 S.W.2d 52 (Mo.App.1976); State v. Russ, 537 S.W.2d 216 (Mo.App.1976).

      . To warrant relief for plain error, the action of the prosecutor must have resulted in manifest injustice or a miscarriage of justice. State v. Sanders, 541 S.W.2d 782 (Mo.App.1976).

      .We note that defendant’s court appointed appellate attorney has represented his client valiantly.

      . State v. Harris, supra, (feloniously and fraudulently held not sufficient to charge an intent to defraud in a buying or receiving stolen goods case); State v. Thomas, supra, (“knowingly and willingly” transporting liquor not satisfied by charging “unlawfully and feloniously.”)