author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. Billy E. FITZPATRICK, Appellant.
    No. KCD 27322.
    Missouri Court of Appeals, Kansas City District.
    June 2, 1975.
    Motion for Rehearing and/or Transfer Denied July 7, 1975.

      William G. Mays, II, Public Defender, Columbia, for appellant.
    John C. Danforth, Atty. Gen., Clarence Thomas, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J. and TURNAGE, J.
   TURNAGE, Judge.

Defendant appeals his sentence to thirty years confinement following his conviction of rape.

The crime occurred on August 12, 1973. Defendant was arrested on an unrelated charge on August 16, 1973, and because a police officer in Columbia noted a resemblance between the defendant and a composite drawing which another police officer had made of a man alleged to have committed a number of rapes in Columbia, defendant was placed in a line-up. He was viewed by the victim of the rape in this case as well as at least one other victim. As a result, the victim identified defendant and he was subsequently charged with this crime.

The defendant does not question the sufficiency of the evidence to support his conviction. He only raises two points on this appeal; the first is the refusal of the trial court to require the State to give defendant a copy of the composite drawing, and second, the refusal to suppress the pre-trial identification made of the defendant at the line-up by the victim.

The defendant argues in his first point that his trial was rendered manifestly unfair because the composite drawing was not made available to him so that his attorneys could cross-examine the victim concerning her identification of the defendant. There was no evidence adduced to show the victim of this crime ever saw such composite drawing or that any description given by this victim contributed to the making of such drawing. Immediately after the crime, the victim reported the matter to the police officers and gave them a description of her assailant. The victim’s description was based on her observation of the defendant’s face for a period of two minutes in her room prior to the assault, with the room lighted by 75 to 100 watt light bulbs.

Defendant does not elaborate on how the composite drawing would have aided him in testing the identification made by the victim. In fact, the victim was vigorously cross-examined by defendant’s counsel concerning various physical characteristics of defendant which she saw and observed and which she said led her to identify him.

The defendant makes some intimation that he wanted to bring out the fact that a number of other rapes had occurred in this general vicinity and explore the description of the assailant in those cases and compare such description with the description given by the victim. Such reference to other crimes and the descriptions given by the victims of those crimes would be totally irrelevant to any issue in this case. Nor would the descriptions of the assailants given by the other victims have any bearing on the description given by the victim here. Such evidence would be highly prejudicial if the State attempted to introduce the same, and would be totally irrelevant if the defendant attempted to do so. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (Mo. banc 1954).

Furthermore, at the time this case was tried there was no right of discovery on the part of the defendant to obtain the composite drawing made by the police department. State v. Herington, 520 S.W.2d 697 (Mo.App.1975). Moreover, this case is similar to State v. Cannon, 465 S.W.2d 584 (Mo. banc 1971) in which the denial of a request for a composite drawing was upheld. As stated in Cannon at page 588[2]: “[t]hat description would have been of no use to defendant’s counsel in trying to impeach a particular witness because it did not purport to be a description given to the police by any specific witness”.

In this case, the composite was not shown to have been the result of any description given by the victim, so the drawing could have been of no possible value in cross-examining the victim as to her identification of the defendant. For these reasons defendant’s trial was not rendered manifestly unfair by the refusal of the State to give the defendant the composite drawing. There is no merit in the first point.

Defendant next complains of the refusal to suppress the pre-trial identification made by the victim at the line-up in which the defendant appeared with four other men. Defendant does not specify any improper suggestions or conduct on the part of anyone during this line-up, nor does the defendant state in his brief why the line-up identification was improper. However, this court has carefully read the transcript, including the testimony taken at the pre-trial hearing on defendant’s motion to suppress the lineup identification. No improper conduct or any suggestive procedure on the part of anyone to cause the victim to identify the defendant is shown.

It is necessary to view the totality of the surrounding circumstances of the identification procedure as stated in State v. Parker, 458 S.W.2d 241 (Mo.1970) and in State v. Hendrix, 520 S.W.2d 701 (Mo.App. 1975). It is apparent the three tests mentioned in such cases have been fully satisfied in this case. Here, the victim had an independent basis of identification based on her observation of defendant in her room for fully two minutes prior to the assault; there is no evidence of any suggestive influence on her; and she made a positive courtroom identification. In addition, the defendant has failed to assert any ground to show the line-up identification should be suppressed. For that reason, defendant’s second point is overruled.

Finding no error, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: GUNN, Judge. PER CURIAM:

license: Public Domain

text:
    S. P. PERSONNEL ASSOCIATES OF SAN ANTONIO, INC., Respondent (Plaintiff), v. HOSPITAL BUILDING & EQUIPMENT CO., INC., a corporation, Appellant (Defendant and Third-Party Plaintiff), v. Michael ZADICK, Respondent (Third-Party Defendant).
    No. 35725.
    Missouri Court of Appeals St. Louis District, Division Three.
    April 15, 1975.
    Motion for Rehearing or Transfer Denied June 26, 1975.

      Sestric, Sestric, Sweet & McGhee, W. Thomas McGhee, St. Louis, for appellant.
    Lawrence Sanders, St. Louis, for respondent (plaintiff).
    Lashly, Caruthers, Thies, Rava & Hamel, Darold Crotzer, Jr., Steven M. Stone, St. Louis, for respondent (third-party defendant).
   GUNN, Judge.

This suit is founded upon a claim by an employment agency for its fee for services rendered in the procurement of a national sales manager for an employer. The employer counterclaimed for salary paid to the sales manager and also filed a third-party action against the sales manager for damages. The trial court dismissed the employer’s third-party petition, and a jury returned a verdict in favor of the employment agency for $3,000. The employer has appealed asserting that the trial court erred in dismissing the third-party petition and in the giving of instructions. We affirm the judgment.

On appeal we review the evidence in the light most favorable to plaintiff-respondent. Ritter v. Lindberg Acoustics, Inc., 501 S.W.2d 207 (Mo.App.1973). This case had its inception with defendant-appellant Hospital Building and Equipment Co., Inc. placing an advertisement in the Wall Street Journal seeking an experienced hospital equipment sales manager for a position in St. Louis. Plaintiff-respondent S. P. Personnel Associates of San Antonio, Inc. responded to the advertisement and informed defendant that it represented Michael Za-dick of Memphis, Tennessee, who apparently possessed the requisite qualifications for the sales manager defendant was seeking. Plaintiff forwarded a resume of Zadick’s qualifications to defendant and discussed with defendant the possible placement of Zadick. Coincidently with plaintiff’s sending of the resume, Zadick also sent his resume to defendant, but in discussions with plaintiff, defendant stated that it intended to respect the fact that plaintiff was the first to submit the resume and would therefore deal with plaintiff. According to plaintiff it was agreed that defendant would pay a placement fee of 15 percent of the employee’s first year’s salary, to be paid if he were employed by defendant and after working the first thirty days of employment. If for any reason the employment terminated before the expiration of thirty days, the plaintiff would receive no fee. Defendant interviewed Zadick on two occasions, and he was hired as sales manager at an annual salary of $30,000 plus a $5,000 bonus. After working two or three weeks, Zadick indicated to defendant that his wife did not want to move to St. Louis from Memphis and that he might not be able to continue his employment. Defendant tried to persuade Zadick to stay, as defendant was pleased and satisfied with his work. However, Zadick left defendant’s employment after having worked six weeks and drawing $5,234.55 in salary and expenses. During his period of employment with defendant, Zadick with the approval of defendant, commuted between St. Louis and Memphis, but without defendant’s approval he apparently also retained his job with his former employer.

Plaintiff made claim for a placement fee of $4,500 based on 15 percent of Zadick’s annual salary rate of $30,000, and upon defendant’s refusal to pay, plaintiff brought suit based on express contract for $4,500. Defendant counterclaimed, alleging that plaintiff misrepresented to defendant that Zadick was available for full-time employment when, in fact, he was not. Defendant also filed a third-party action against Zadick seeking to implead Zadick to recover reimbursement for salary and expenses paid Zadick and for any sums adjudicated against defendant in favor of plaintiff arising out of plaintiff’s action. Za-dick’s motion to dismiss the third-party petition was granted by the trial court, and the jury returned a verdict in favor of plaintiff for $3,000.

On appeal, defendant contends that the trial court erred in dismissing the third-party petition against Zadick. Defendant also contends that the trial instructions were erroneous in that: 1) plaintiff’s instructions failed to negate defendant’s affirmative defense of misrepresentation by plaintiff that Zadick was available for full-time employment; 2) the instruction given for plaintiff constituted a submission in quantum meruit when the pleadings and proof were of an alleged expressed contract; 3) the trial court refused an instruction defining the word “hire.”

We first consider the dismissal by the court of defendant’s third-party petition against Zadick. Our Supreme Court’s decision in State ex rel. Green v. Kimberlin, 517 S.W.2d 124 (Mo. banc 1974), is a beacon on this issue. Rule 52.11, Y.A.M.R., governs defendant’s third-party petitions in that it allows a defendant to bring in a third-party “who is or may be liable to him for all or part of the charges claimed against him.” In Kimberlin it was said that “[i]f the liability of the third-party defendant is not dependent on the liability of the third-party plaintiff” the court would have no jurisdiction over the petition, since it would not be within the ambit of Rule 52.11. Thus, under Kimberlin, if the third-party plaintiff (Defendant Hospital Building Equipment) could proceed and recover against the third-party defendant (Zadick), even if it were to win in the suit brought by the plaintiff (S. P. Personnel), the petition would not be covered by Rule 52.11. Defendant could proceed against Zadick for salary payments even if it were determined that defendant did not have to pay the placement fee to plaintiff. Therefore, the third-party petition on this issue should have been dismissed under Kimberlin for lack of jurisdiction. Further, the placement fee issue is based on an alleged contract between plaintiff and defendant with no suggestion that Zadick was a party to the contract. Therefore, Zadick could not be liable for any part of plaintiff’s claim against defendant, and even if possible liability existed for Zadick to defendant for salary and expenses, such liability would not be dependent on plaintiff’s claim. It is manifest from the following language of Kimberlin that defendant’s third-party petition was not within Rule 52.11 and was properly dismissed:

“Whether the third-party claim is based on a different theory from that alleged in the original complaint and whether the third-party petition introduces new factual issues are factors which are properly considered by a trial judge in determining whether he should exercise his discretion and dismiss the claim, but they are not determinative of the jurisdictional issue of whether the third-party defendant is or may be liable to the defendant for all or part of the plaintiff’s claim. What is determinative is whether the facts set forth in the third-party petition constitute a basis for a theory by which the third-party defendant would be liable to the third-party plaintiff if such third-party plaintiff is found to be liable to the original plaintiff. If the liability of the third-party defendant is not dependent on the liability of the third-party plaintiff, the claim would not come within the provision of Rule 52.11.” State ex rel. Green v. Kimberlin, supra at 127.

Defendant next contends that plaintiff’s verdict directing instruction was in error as it did not negate defendant’s affirmative defense of misrepresentation. Defendant, on appeal, asserts that plaintiff was guilty of misrepresentation in two regards: 1) that Zadick had misrepresented his qualifications in his resume and that by sending a resume of Zadick’s qualifications to defendant, plaintiff also made misrepresentation as to those qualifications; 2) that plaintiff represented to defendant that Zadick was available for full-time exclusive employment with defendant when, in fact, he was not.

Where facts appear to support a pleaded affirmative defense, it is error to omit the tail of plaintiff’s verdict directing instruction which negates that defense. Moore v. Ready Mixed Concrete Co., 329 S.W.2d 14 (Mo. banc 1959); Fowler v. Lalede Gas Co., 488 S.W.2d 934 (Mo.App.1972). But where the evidence does not support such a defense, the plaintiff’s verdict director need not negate that defense. Linwood State Bank v. Lientz, 413 S.W.2d 248 (Mo.1967); Fowler v. Laclede Gas Co., supra. We find that defendant’s evidence was not such as to require the giving of the affirmative defense tail to plaintiff’s verdict director. We observe that the affirmative defense and counterclaim as pleaded by plaintiff alleged only misrepresentation as to Zadick’s availability. The assertions of misrepresentation as to Zadick’s qualifications as set forth in the resume are outside the scope of the pleadings, and we do not consider them. The claim of alleged misrepresentation that Zadick was available for full-time exclusive employment with defendant is without merit. There is nothing in the record to substantiate that plaintiff represented that Zadick was available for full-time exclusive employment. Plaintiff cannot be found to guarantee Zadick’s future intentions, and fraud cannot be predicated on a mere promise to act in the future even if accompanied by a present intention not to perform it. Such a promise is not a misrepresentation of an existing fact. Godwin v. Dinkler St. Louis Management Corp., 419 S.W.2d 70 (Mo.1967); Yerington v. Riss, 374 S.W.2d 52 (Mo.1964); Brennaman v. Andes & Roberts Bros. Constr. Go., 506 S.W.2d 462 (Mo.App.1973). Zadick’s expressed intention to be available for employment was not shown to be false at the time it was made. Therefore, a charge of fraud or misrepresentation cannot be predicated upon the fact that Zadick did not leave his former employer, particularly when it was known to defendant that Za-dick was employed by another company at the time of the employment interviews, the job offer and Zadick’s acceptance of the job offer.

Defendant also contends: 1) that plaintiff’s verdict director and damage instruction together constituted an attempted quantum meruit submission when only an expressed contract was pleaded and attempted to be proven; 2) that plaintiff’s verdict director should have hypothesized the terms of contract; 3) that plaintiff’s damage instruction was erroneously patterned after MAI 4.01 whereas MAI 4.05 was the appropriate damage instruction.

Plaintiff’s verdict director was as follows: “Your verdict must be for Plaintiff on Plaintiff’s Petition if you believe:
First, Plaintiff arranged a meeting between Michael Zadick and Defendant for the purpose of interviewing for a job as National Sales Manager of Defendant pursuant to an agreement that Defendant would pay Plaintiff a fee if it hired Michael Zadick for said job, and Second, Defendant hired Michael Zadick for said job, and
Third, Defendant has breached said agreement by failing to pay Plaintiff such fee.”

Plaintiffs damage instruction patterned after MAI 4.01 was as follows:

“If you find the issues in favor of Plaintiff on Plaintiff’s Petition, then you must award Plaintiff such sum as you believe will fairly and justly compensate Plaintiff for any damages which you believe it sustained as a direct result of the breach of contract of Defendant, together with 6% interest thereon from November 1, 1970.”

It is true that when the pleadings declare only an express contract, “no recovery thereon can be had on the theory of implied contract or on the theory of quantum meruit, or on mere proof of reasonable value of the services.” O’Neal v. Mavrakos Gandy Go., 255 S.W.2d 138, 140 (Mo.App.1952). But plaintiff did not attempt to recover in quantum meruit as contended by defendant. Only an express oral contract was pleaded and attempted to be proved, and MAI 4.01 is an appropriate instruction in a breach of contract action; its use was proper here. Boten v. Brecklein, 452 S.W.2d 86 (Mo.1970); Gottlieb v. Hyken, 448 S.W.2d 617 (Mo.1970). As shall ■ be emphasized further in this opinion, there was an admission at trial by defendant that it had agreed to pay plaintiff “something” with a discussion centering on $3,000. Therefore, under the circumstances of this case where there is an admitted aeknowl- ' edgment by defendant that it is liable for some damages and the amount of damages is in dispute, defendant was not prejudiced by the submission of plaintiff’s verdict directing instruction and the damage instruction patterned after MAI 4.01 under plaintiff’s action to recover under the alleged express oral agreement.

Further, we find that there was sufficient hypothesis of the facts of the case in plaintiff’s verdict directing instruction. A reasonable juror could understand the instruction in the light of the evidence without further encumbering the instruction by hypothesizing evidentiary detail. See Anderson v. Sellers, Mo.App., 521 S.W.2d 33 (1975). The instruction was not misleading, and it is sufficiently in compliance with Rule 70.01. Bomson v. Electra Mfg. Co., 402 S.W.2d 7 (Mo.App.1966).

We also find that there was no reversible error in the giving of MAI 4.01 rather than MAI 4.05 as the damage instruction. It is the general rule in Missouri that where an MAI instruction is applicable its use is mandatory. Bueche v. Kansas City, 492 S.W.2d 835 (Mo. banc 1973), and such instructions must be given to the exclusion of any other on the same subject. Rule 70.01. We find from the record that defendant, through its president, conceded that it owed “something” to plaintiff for its placement services and that defendant understood that it was to pay a fee for plaintiff’s services; that a figure of $3,000 as such fee was discussed after Zadick had terminated employment with defendant. Thus, the jury had before it through defendant’s own evidence, something other than the agreed percentage figure suggested by MAI 4.05. A party is entitled to have an instruction on issues pleaded and supported by the evidence on such issues which have been tried voluntarily as by implied consent of the parties so that it is treated as if raised by the pleadings. Nicklas v. Lincoln Liberty Life Ins. Co., 518 S.W.2d 106 (Mo.App.1974); Galemore Motor Co. v. State Farm Mutual Automobile Ins. Co., 513 S.W.2d 161 (Mo.App.1974); Searcy v. Neal, 509 S.W.2d 755 (Mo.App.1974). The plaintiff is permitted to take advantage of defendant’s admissions and concessions during the course of trial and to call upon all evidence favorable to his ease, including defendant’s evidence, when instructing the jury. Since the jury may find for plaintiff on all the evidence — not just plaintiff’s evidence — it was proper to instruct under MAI 4.01 rather than the more restrictive MAI 4.05, and defendant was not prejudiced thereby.

Finally, defendant contends that the trial court erred in failing to define the term “hire” as requested by defendant. It is the general rule that “words of common usage which are generally understood, when used in a charge to the jury, need not be defined in the absence of a request . and not always when requested.” State v. Goodman, 490 S.W.2d 86, 87 (Mo.1973). Although the court should explain to the jury the meaning of legal or technical terms occurring in its. instructions, Swinger v. Bell, 373 S.W.2d 30 (Mo.1963), the meaning of ordinary words used in their usual or conventional sense need not be explained to the jury; the trial court may properly refuse request for instruction seeking the definition of such ordinary words. Burns v. Vesto Co., 295 S.W.2d 576 (Mo.App.1956). There was no error in this case in refusing to define the word “hire.” See State v: Taylor•, 486 S.W.2d 239 (Mo,1972).

The judgment is affirmed.

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

ON MOTION FOR REHEARING

PER CURIAM:

On motion for rehearing defendant-appellant Hospital Building & Equipment Co., Inc. argues that our opinion changes the substantive law of contracts by permitting a submission under quantum meruit whereas plaintiff’s suit was filed in express contract. Defendant attacks our reference to the fact that at trial defendant acknowledged that it owed “something” to plaintiff for plaintiff’s services and that the amount of $3,000 was discussed. We uphold the right of the jury to consider defendant’s admission in this regard, but defendant asserts that its testimony may not serve to vary the amount of the express contract sued on by the plaintiff. We have said that defendant was not prejudiced by allowing the jury to consider evidence submitted by defendant which would reduce the amount of recovery to plaintiff. We find Polen v. Kansas City Chip Steak Co., 404 S.W.2d 416 (Mo.App.1966) dispositive of defendant’s argument. The holding of' the Polen case is that where a plaintiff sues for an amount fixed by an express contract and the jury finds for the plaintiff in a lesser amount, then, even though plaintiff is willing to accept the lesser amount, the defendant is entitled to a new trial, for the jury has disregarded the issue. That is the position taken by the defendant here, and we do not quarrel with or seek to change the law as so stated. But the Polen case goes further and holds that where the defendant — as in this case — has introduced evidence which would tend to lessen the amount of plaintiff’s recovery, the defendant may not complain, for there is no prejudice to defendant in such case. The motion for rehearing is overruled.

All Judges concur.

      . MAI 4.05 provides: “4.05 Damages — Broker’s Commission — Agreed Percentage If you find in favor of Plaintiff, then you must award him such sum as you believe he and Defendant agreed upon as a commission together with 6% interest thereon from _, 19 — ”


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Harold E. WAECKERLE et al., Relators-Respondents, v. BOARD OF ZONING ADJUSTMENT et al., Respondents, Richard L. Eaton, Intervenor-Appellant.
    No. KCD 27085.
    Missouri Court of Appeals, Kansas City District.
    June 2, 1975.
    Motion for Rehearing and/or Transfer Denied July 7, 1975.
    Application to Transfer Denied Sept. 8, 1975.

      Herbert C. Hoffman, Kansas City, for intervenor-appellant.
    Aaron A. Wilson, City Atty., James C. Bowers, Jr., Asst. City Atty., Kansas City, for respondents.
    Don M. Jackson, Jackson & Sherman, Kansas City, for relators-respondents.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal by Richard L. Eaton from judgment quashing order of Board of Zoning Adjustment of Kansas City, Missouri, approving application of Richard L. Eaton for a conditional use permit for construction of a funeral home in a residential area.

On November 3, 1972, Richard L. Eaton filed an application under the Zoning Ordinance, Chapter 65, Revised Ordinances of Kansas City, Missouri, with the Board of Zoning Adjustment of Kansas City for a conditional use permit for an unlimited time to construct and operate a funeral home on a tract in Zoning District R-la located at the southeast corner of Bannister Road and State Line Road in Kansas City, Missouri.

Section 65.040, supra, provides:

“A district R-l is composed of areas developed for single-family residences and areas of open land that might reasonably be developed similarly. Uses in the district include churches, schools, community centers, and other structures and lands used for appropriate public and semipublic community facilities, and also utility substations, and other essential public uses of land whose role in the residential neighborhood and community require their location within it.”

Section 65.041, supra, specifies the “authorized uses” in R-l districts. It also provides for “conditional uses” in R-l districts, together with the requirements and standards for the granting of permits for conditional uses, viz.:

“V. Conditional uses of land authorized by the Board of Zoning Adjustment on report and recommendation by the Director of the City Planning Department, subject to the conditions and restrictions of this subsection.
“A. Board hearing after report and recommendation of the Director of the City Planning Department.
“The uses of land permitted in this subsection may be authorized by the Board after a public hearing and only after receiving the report and recommendations of the Director of the City Planning Department. The Director shall report as to whether or not any use to be permitted under this subsection is compatible with the plan for the development of the City used as a guide by the commission in all such matters referred to it. After a review of the plans, the Director may make recommendations for additional conditions on the period of the permit and the method of operations.
“B. Conditions applicable.
“The Board shall find that any use permitted under this subsection meets all of the conditions and requirements as follows:
“1. The use does not materially damage or curtail the appropriate use of neighboring property;
“2. The use conforms to the applicable district regulations;
“3. The use is compatible with the general character of the district;
“4. The use does not jeopardize the public health, safety or welfare; and
“5. The use does not violate the general spirit and intent of the Zoning Ordinance and this section.
“C. Uses conditionally authorized:
“2. Uses permitted for an unlimited time.
* * * ⅜ ⅜ ⅜
“i. Funeral homes or mortuaries, subject to meeting all of the additional conditions, as follows:
“(1) The property shall consist of not less than five (5) acres of land in a single tract OR parcel not intersected or divided by any street, alley or property belonging to any other owners. The property shall have at least a 500-foot frontage on a major thoroughfare.
“(2) The entrance and exit to the parkway shall be directly to and from a major thoroughfare or parkway.
“(3) Parking space shall be provided as set forth for funeral homes under Section 65.280.
“(4) Definite and detailed plans for shrubbery and landscaping shall be presented to the Board and made part of the permit. Such landscape plan shall provide for boundary screen planting of a minimum width of 20 feet and a height adequate to provide a protective screen for the adjoining residential uses.
“(5) No principal building or accessory building shall be within one hundred (100) feet of the boundary of an adjoining property which is located in an R-l to C-l district, inclusive. No driveway or parking area shall be within twenty-five (25) feet of the boundary of an adjoining property which is located in an R-l to R-5 district, inclusive.”

Section 65.210, supra, provides identically in dealing generally with conditional uses in the various zoning districts of the city.

The application was heard by the Board of Zoning Adjustment November 28, 1972, at which time the applicable provisions of law and various exhibits were made a part of the record.

The application was made originally by Richard L. Eaton who had acquired an option to purchase the land in question on behalf of Kansas City Railroad Restaurant Corporation which had an agreement with the Mellody-McGilley-Eylar Funeral Home for an exchange of property to it for use as a funeral home conditioned upon approval by the Board of Zoning Adjustment for conditional use of the property for construction and operation of a funeral home.

The “report and recommendation” required of the Director of the City Planning Department by Section 65.041 V, supra, was made by letter of November 24, 1972, by Donald R. Woodward. It recited: “The principal difficulty in this application is that the area is about an acre less than the five acre minimum.” Mr. Richard E. Duncan, Chief of Current Planning, testified also to this deficiency.

Upon question from the acting chairman of the board, counsel for the applicant admitted that applicant’s own computations, including portions of the tract in the street, showed approximately 4.47 acres, and agreed also that the requirement is of a net of five acres. Applicant, by letter of December 1,1972, further stated: “The usable area, not in streets is well over 4 acres and is more than adequate for use for which the permit is sought even with Vioths of an acre less than 5 acres.” This concession was carried forward in his petition to intervene in that “Intervenor admits said tracts of land, considered as a unit, are less than five, acres, and affirmatively state[s] that the area of land involved and required to be conveyed to Intervenor is approximately 4.68075 acres * * *.”

In this state of the record counsel for applicant and the applicant asserted that the Board could grant a “variance” from the five-acre minimum on the theory of hardship in locating a tract which met the requirements for a conditional use permit for a funeral home. No such petition was before the Board at the public hearing.

The power of the Board of Zoning Adjustment to vary or modify application of requirements regarding use of land is, as recognized in intervenor’s answer, infra, contained in Section 89.090, V.A.M.S.:

“1. The board of adjustment shall have the following powers:
“(1) To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of these sections or of any ordinance adopted pursuant thereto;
“(2) To hear and decide all matters referred to it or upon which it is required to pass under such ordinance;
“(3) In passing upon appeals, where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such ordinance, to vary or modify the application of any of the regulations or provisions of such ordinance relating to the use, construction or alteration of buildings or structures or the use of land so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.”

The City of Kansas City has accepted this delegation of authority by providing in Article XIV, Section 403, of its charter for a Board of Zoning Adjustment and providing further:

“Subject to the provisions of state statute relating thereto, said Board shall have power to determine and vary the application of the regulations, restrictions, prohibitions and limitations contained in any zoning ordinance * *

The city has specifically delineated this power in the language of Section 89.090, V.A.M.S., supra, by enactment of Section 65.300 of its zoning ordinance to provide:

“1. The board of zoning adjustment shall have the following powers:
“a. To hear and decide all matters referred to it or upon which it is required to pass under this chapter.
“b. To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the commissioner of buildings and inspections in the enforcement of this chapter.”
“c. In passing upon appeals from decisions of the commissioner of buildings and inspections, whenever in any specific case, the board shall find and determine that the application of a general rule or regulation governing the use, construction or alteration of buildings or structures or the use of land, to the particular case under consideration, will, by reason of exceptional circumstances or surroundings, constitute a practical difficulty or unnecessary hardship * * *, the board may make an order varying or modifying such rule or regulation.”

The remainder of applicant’s evidence at the hearing- was devoted to design, construction, and use of the property, traffic conditions in the area, and the difficulty of Mr. McGilley on behalf of his funeral home in locating a tract which would meet the requirements of the ordinance.

A number of area residents appeared in opposition to the application.

The matter was taken under advisement and, on February 13, 1973, the Board of Zoning Adjustment, without reference to the failure to meet the 5-acre minimum requirement of the ordinance, either by statement of computation or by grant of variance, approved the application in question.

On March 14, 1973, relators, as aggrieved parties owning property abutting or in the immediate vicinity of subject premises, petitioned for a writ of certiorari, pursuant to Section 89.110, V.A.M.S., alleging that the order of the Board of Zoning Adjustment approving the application of Richard L. Eaton for the conditional use in question was illegal “for the reason that it is in direct contravention and violation of the mandatory and minimum requirements for such conditional uses set forth in subsection VC2(i) of Section 65.041, Revised Ordinances of Kansas City * ⅞ ⅜ in that the undisputed evidence presented in said hearing conclusively established that the total area of the property included within said application was less that [sic] five (5) acres; that the Board is and was totally without power and authority to grant approval for such conditional use in any circumstances when said property was established as containing less than said minimum of five (5) acres * * * that the action of the Board cannot be supported or sustained on the ground' either of hardship or as another discretionary finding or determination, for the reason that the terms and provisions of subsection VC2(i) of Section 65.041 are mandatory and do not authorize, justify or support the approval of this application, when the undisputed evidence established that the total area of the property included therein was and is less than the mandatory minimum of five (5) acres.”

On March 14, 1973, relator’s petition was sustained, and a writ of certiorari issued to the Board of Zoning Adjustment returnable April 13, 1974.

On April 12, 1973, Richard L. Eaton moved to intervene, and on April 13, 1973, his motion was sustained to permit him- to intervene as a party defendant.

On April 13,1973, intervenor filed answer admitting the tract in question was less than five acres, and alleging the Board’s order was sustainable as a variance granted pursuant to Section 89.090, V.A.M.S., on the ground of hardship.

The Board of Zoning Adjustment filed answer in the nature of a general denial. The Board did not support its approval of the application for conditional use permit as a variance.

The court reviewed the transcript of proceedings before the Board of Zoning Adjustment and found:

“(a) Intervenor Richard L. Eaton applied to the Board of Zoning Adjustment for a permit for a conditional use of a tract of land on the southeast corner of Bannister Road (95th Street) and State Line Road in Kansas City, Jackson County, Missouri, for the purpose of erecting a funeral home thereon.
“(b) The area in question was and is a residential area with a zoning designation of R-l for single family dwellings.
“(c) Application for the conditional use was made under the provisions of Section 65.210 of Chapter 65, Zoning Ordinances of the City of Kansas City, Missouri and, particularly, under the provisions of Section 65.210 II-B(2)(d) specifically relating to funeral homes or mortuaries in R-l Districts'.
“(d) A similar conditional use is also provided under Section 65.041 of the Revised Ordinances of Kansas City, Missouri.
“(e) The provisions of each of the aforesaid Sections of the Zoning Ordinances of Kansas City, Missouri, provide, as the first condition, that the property to be affected shall consist of ‘not less than five (5) acres of land in a single tract’.
“(f) The tract in question, by all of the evidence in the record, is substantially less that [sic] five (5) acres.”

The court concluded as a matter of law:

“(a) There has been no compliance with the primary conditional use imposed by each of the ordinance sections cited in the record and herein.
“(b) The Board of Zoning Adjustment, Respondent herein, neither had nor has discretion to waive, modify or vary the specific requirements of the Zoning Ordinances regarding the size of the tract for which the permit issued herein was sought.
“(c) The action of the Board of Zoning Adjustment in granting a permit for the conditional use of establishing a funeral home or mortuary on the tract of land mentioned in evidence was in excess of the authority of said Board of Zoning Adjustment and was and is unlawful and arbitrary.”

Pursuant to these findings, the court quashed the order of the board approving application of Richard L. Eaton for the conditional use permit in question.

Intervenor-appellant asserts the court erred in failing to affirm the order of the Board of Zoning Adjustment.

Appellant contends (I) that the Kansas City Zoning Ordinance, in harmony with the Zoning Enabling Act and the City Charter, authorized the Board to make an area variance upon proof of a practical difficulty or an unnecessary hardship by way of enforcing the strict 5-acre condition for a funeral home use in an K-l residential district. In support of this contention, he asserts that the Board may make an area variance in the requirements of any Kansas City ordinance including Sections 65.041, 65.210, and 65.300, Revised Ordinances of Kansas City; that Section 65.300 complies with and adopts and embodies all provisions of Section 89.090, V.A.M.S., giving the Board full power to vary an ordinance, whether on direct application or in passing upon appeals; that the Board’s discretionary power to vary any ordinance is also recognized by Kansas City’s Charter, particularly in its Article XIV, Section 403; that the court disregarded the law in declaring as a matter of law that in issuing the conditional funeral home use permit, the Board’s action was in excess of its authority and unlawful and arbitrary without determining if such action was supported by competent and substantial evidence under Article V, Section 22, Constitution of Missouri, V.A.M.S.

Appellant contends (II) that the Board acted within its authority and that its action was reasonable and supported by competent and substantial evidence on the record. In support, he asserts that an area variance in this ease was supported by such evidence; that the question of hardship is a question of fact within the discretion of the Board and its resolution of such question is reasonable and supported by competent and substantial evidence; that the action of the Board is conclusive because it is not contrary to the overwhelming weight of the evidence, is reasonable and required substantial compliance.

Appellant contends (III) that the court erred in declaring the Board exceeded its authority, and its action was arbitrary and capricious and should be reversed to affirm the order of the Board.

Appellant’s contentions and assertions of their support have been stated in detail because they demonstrate that he seeks to sustain the action of the Board of Zoning Adjustment on the theory that the Board granted him a variance in approving his application for a conditional use permit; that the competent and substantial evidence on the record supports a grant of variance in relief from practical hardship, and that the court, therefore, erred in quashing the order of the Board.

Appellant’s theory fails because it is contrary to the record in this case. By his own admission, “appellant sought a conditional use permit for the operation of a funeral home in an R-la, single family residential district upon the assumption that the tract he had assembled consisted of five acres.” His application to the Board of Zoning Adjustment is consistent with the foregoing admission, and the public hearing was accorded on such application. The first mention of “variance” came from counsel for applicant when confronted with applicant’s admission that the tract contained less than five acres. Counsel stated only “that the Board has the power to vary this and modify it ⅜ * ⅜,” and neither he nor the applicant made any move to change the application for purposes of seeking a variance. Applicant’s letter of December 1, 1972, stated that “Under my interpretation, there is no need for a variance * * *. If the granting of a variance is deemed necessary, then our request should be granted on grounds of hardship because I have searched for a site that would qualify for many months * * * .” The date of this letter shows that it was not before the Board at the public hearing November 28, 1972. Neither does it purport to be a request for a variance. It is, rather, an assertion of a ground for granting the original and only request in this case. Finally, the Board of Zoning Adjustment made no findings with respect to hardship upon which to base a variance, or of variance generally, or variance of the five-acre minimum in particular. It simply terminated the matter by saying “application approved.”

Since there was no application for a variance, no presentation of a variance at the public hearing, and no finding or decision granting a variance, it may not be said that the court erred in failing to affirm the order of the Board of Zoning Adjustment on the theory of a requested, proved, and authorized variance. Tustin Heights Assn. v. Board of Supervisors, 170 Cal.App.2d 619, 339 P.2d 914 (1959).

Assuming the presence of a requested, supported and approved variance, appellant’s theory is in equal difficulty under the applicable provisions of law.

Sections 65.041 and 65.210, supra, both provide, among other restrictions, that in order to obtain a conditional use permit for construction and operation of a funeral home in an R-l single-family residential district, the land upon which it would be located “shall consist of not less than five (5) acres of land in a single tract or parcel not intersected or divided by any street, alley or property belonging to any others.” Application for such conditional use permit must be presented directly to the Board of Zoning Adjustment, and the Board is authorized to grant the application only after a public hearing and upon a showing which permits a finding that the proposed use “meets all of the conditions and requirements” including the minimum size of the tract of five acres. The use of “shall” makes the requirement mandatory as opposed to discretionary or permissive. Sho-Me Power Corp. v. City of Mountain Grove, 467 S.W.2d 109, 112 (Mo.App.1971); Black’s Law Dictionary, 4th Edition.

The use of “shall” in these circumstances excludes any idea of discretion; and it is only where the Board of Zoning Adjustment has exercised discretionary power conferred upon it by other enabling statutes or provisions of the Zoning Ordinance that a circuit court is powerless to interfere with the exercise of a discretionary power which is supported by competent and substantial evidence. Since the Board had no discretion to vary or modify the mandatory requirement that the tract contain a minimum of five acres, the Board’s action which was contrary to such requirement was illegal, and the court had the power and duty to set such a ruling aside. § 89.110, V.A. M.S.; Phillips v. Board of Adjustment, 308 S.W.2d 765, 767 (Mo.App.1958); McKinney v. Board of Zoning Adjust, of Kansas City, 308 S.W.2d 320, 322 (Mo.App.1957); State v. Kansas City, 325 Mo. 95, 27 S.W.2d 1030 (banc 1930).

Appellant’s contention that the Board of Zoning Adjustment has the discretionary power to grant a variance in relief from the mandatory minimum acreage requirement under Article XIV, Section 40, Charter of Kansas City, Section 89.090, V.A. M.S., and Section 65.300, Revised Ordinance of Kansas City, confuses the limitations placed upon the powers of the Board of Zoning Adjustment when passing on an application for a conditional use permit and its powers in passing on appeals from subordinate zoning officials, and is contrary to those provisions.

Section 89.090, V.A.M.S., as the enabling act, authorizes a board of zoning adjustment to hear and decide appeals from decisions of subordinate administrative zoning officials, to hear and decide in the first instance matters referred to it by a zoning ordinance, and provides that when it acts in its appellate capacity, it may vary or modify applications of regulations in relief of practical difficulties or unnecessary hardship.

Article XIV, Section 403, supra, is a charter enactment by which the City of Kansas City accepted the delegation of authority granted it by Section 89.090, V.A.M.S., and it provides generally, “subject to the provisions of the state statute relating thereto,” that the Board of Zoning Adjustment shall have the power to determine and vary applications of regulations, restriction, prohibition, and limitation in the City’s zoning ordinance.

Section 65.300, supra, gives definition to the charter power, and, in so doing, uses the language and specificity of Section 89.090, V.A.M.S.

In this scheme, the application for a conditional use permit to construct and operate a funeral home in a residential district goes at the outset to the Board of Zoning Adjustment rather than to any subordinate zoning enforcement officer. § 89.090, subd. 1(2), Y.A.M.S., supra; § 65.300.1(a), supra. There can be no decision by a subordinate zoning enforcement officer referable by appeal to the Board of Zoning Adjustment under Sections 89.090, subd. 1(1), Y.A.M.S., and 65.300.1(b), supra. As a consequence, the Board could not have exercised its discretionary power of variance in this matter under Section 89.090, subd. 1(3), V.A.M.S., and 65.300.1(c), supra. See Lake George Gorp. v. Standing, 211 Va. 733, 180 S.E.2d 522 (1971), where a code section similar to Section 89.090, V.A.M.S., and Section 65.-300, supra, giving board of zoning appeals power to authorize “upon appeal in specific cases” variance from terms of ordinance as would not be contrary to public interest on basis of hardship, gave board jurisdiction to grant variance only on appeal from prior decision of zoning officer and did not confer upon board original jurisdiction to entertain appeal from terms of zoning ordinance.

Interwoven in this scheme is the distinction between a conditional use and a variance. Conditional uses are exceptions to provisions for general use of properties within a particular classification. Hardship is not a prerequisite to issuance of a conditional use permit, while the essential requirement of a variance is a showing of hardship. They are not one and the same, and provisions for each of them are not to be construed together as reciprocal parts of an integrated ordinance unless the particular act in question specifically and unequivocally so provides. Tustin Heights Assn. v. Board of Supervisors, supra, 339 P.2d l.e. 919; Schultz v. Board of Adjustment of Pottawattamie Co., 258 Iowa 804, 139 N.W.2d 448, 450 (1966). As previously demonstrated, the applicable provisions of charter, statute, and ordinance do not recognize conditional use and variance reciprocally. To permit the Board of Zoning Adjustment to engraft a variance upon a mandatory requirement for a conditional use without specific and unequivocal authority to do so would amount to permitting the Board to exercise legislative power. Such power was expressly denied in State v. Kansas City, supra, 27 S.W.2d l.c. 1032, viz.: “The board of zoning appeals is intrusted with the duty of enforcing the provisions of the ordinance; it is an administrative body, without a vestige of legislative power. It cannot therefore modify, amend, or repeal what the ordinance itself designates as its ‘general rules and regulations’; the power to do that is conferred upon the common council of Kansas City, and it can delegate no part of that power.”

Appellant’s citations may be generally distinguished as involving situations in which there was an appeal to the board of zoning adjustment from the action of the building commissioner in refusing a permit. In such situations the court properly recognized the discretionary power to grant variances under statutory and ordinance provisions similar to Sections 89.090, subd. 1(3), V.A.M.S., and 65.300.1(b) and (c), supra. An exception is Conner v. Herd, 452 S.W.2d 272 (Mo.App.1970), but the board of zoning adjustment there was acting under a specific section which empowered a variance unrelated to any conditional use. Bosedale-Skinker lmp. Assn. v. Board of Adjustment, 425 S.W.2d 929 (Mo. banc 1968), involved an appeal from the refusal of the building commissioner to issue a permit and the board had the express power to order a variance in language following Section 89.-090, V.A.M.S., supra. Summers v. Board of Zoning Adjustment, 299 S.W.2d 883 (Mo. App.1957), involved the issuance by the board of a permit to use land owned by a church as a parking lot for churchgoers, and the ordinance provided that the board could exercise variance power with respect to off-street parking. In Carlyle-Lowell, Inc. v. Ennis, 330 S.W.2d 164 (Mo.App.1959), there was no question that the board was relying upon its appeal powers in treating an appeal from the refusal of the building commissioner to issue a permit, and the landowner was seeking to use the property “for the very purpose * * * for which it [was] already zoned.”

Judgment affirmed.

All concur.

      . Respondents Board of Adjustment et al., have filed a brief by which they seek reversal of the judgment. The brief is thus an appellants’ brief; and the Board has no standing to file such brief because it took no appeal and time has long since passed for it to do so. Leave to file such brief as a brief of amicus curiae has been previously denied by order of the court. Relators-respon-dents’ motion to quash said brief is sustained. Rule 81.04, V.A.M.R.


author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Joseph Walter CHARLES, Defendant-Appellant.
    No. 35774.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 17, 1975.
    Charles D. Kitchin, Public Defender, John F. Bauer, James C. Jones, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen.; K. Preston Dean, II, Donald R. Bird, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., J. Paul Allred, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

Murder prosecution. Defendant was convicted by a jury of murder in the second degree and sentenced to 15 years imprisonment under the Second Offender Act (Section 556.280 RSMo 1969, V.A.M.S.). Defendant appeals.

The state’s case in chief was made by the testimony of one Elverd Callwell, and is as follows: At approximately 10:30 a. m., February 3,1973, a drinking spree began at the Callwell home, in St. Louis, Missouri.

Present at the home during the affair were Callwell, his wife, a friend who left before the shooting, the defendant and Donald Gil-lard, the deceased. During the day, the group consumed about four fifths of gin and 25 to 30 cans of beer. Everyone was “high” but not drunk. Around 4:30 in the afternoon Gillard asked and later demanded that the defendant loan Gillard ten dollars. About this time witness Callwell got up and left the room.

On his return to the room witness Call-well found both defendant and Gillard on their feet arguing about the ten dollars. Gillard threatened to take the money away from defendant and advanced towards him. Witness Callwell then grabbed Gillard by the arm and attempted to escort Gillard out the back door, ostensibly to avoid an altercation. At the door, however, Gillard swung around and started back to the living room. When Gillard was about four or five feet away defendant pulled a gun from behind his back and fired three shots at Gillard. Gillard ran out the back door. Defendant went home. Gillard was found later that day by the police about a half block from the Callwell home, and Gillard died on the way to the hospital.

Later that evening the police arrested defendant at his home. At this time defendant was intoxicated and had to be helped into the police car. Found on defendant’s person was the murder weapon, a .22 caliber pistol.

The case was submitted to the jury at the close of the state’s evidence on instructions for murder • in the second degree, manslaughter and self-defense. The jury found defendant guilty of murder in the second degree. Defendant appeals. We affirm.

The sole issue on appeal is whether the court erred in overruling defendant’s objections to statements made by witness Call-well to the effect that the defendant had previously shot Callwell’s son. Defendant argues that such testimony constitutes evidence of another crime and as such was inadmissible.

On direct examination witness Callwell testified for the state to the version of the facts recited earlier in this opinion. On cross-examination defendant’s attorney succeeded in getting Callwell to admit making a prior inconsistent statement. This statement was made in the office of the public defender prior to trial. The substance of the statement made to the public defender was basically the same as Callwell’s testimony on direct examination, except in the prior statement to the public defender Call-well described a struggle between the defendant and the victim just prior to the victim being shot by the defendant.

In order to rehabilitate the credibility of the witness the state on redirect attempted to show that Caldwell made the prior statement because he was afraid of what the defendant might do if Callwell did not change his version of the facts. In particular the state was trying to show that the defendant had threatened Callwell. During the attempt by the state to explain the reasons for the prior inconsistent statement, the following exchange took place:

“Q. (By the prosecutor) Why did you make that statement to Mr. Bauer (defendant’s attorney)?
A. (By Callwell) I was informed to make the statement just like I made it.
Q. Who told you to make the statement?
A. Charles [the defendant].
Q. Why did you do it?
A. Because he was out on bond and I didn’t want to run into trouble with him, that’s why.
Q. Did you have any fear of him?
A. Yeah.
Q. What was the basis for your fear? What caused your fear in other words?
A. I know he done shot people and would-”

At this point defendant’s attorney objected, on the ground that such testimony constituted evidence of other crimes. The trial court sustained the objection and ordered the remark stricken. The court further instructed the jury to disregard the witness’s last remark. The prosecutor attempted to argue with the court over whether such testimony was admissible, but the court said it would allow the witness to testify as to any threats that were made by the defendant but not to any other crimes committed by the defendant. A short time later the following occurred:

“Q. You were afraid of Mr. Charles?
A. Sure.
Q. What did you base your fear on?
A. I had been knowing the man for 30 years.
******
Q. What did he ever say to you about this? What words did he say to you that caused fear?
MR. BAUER: I object to this line of questioning, your Honor.
THE COURT: The objection will be overruled.
Q. (By the prosecutor) You may answer.
A. He just told me and my son both, to drop the case against him when he
shot my son-
MR. BAUER: I object to the part ‘when he shot my son.’
THE COURT: I understand the objection and I’m overruling it.”
“Q. Mr. Callwell, under oath tell this jury what you were afraid of?
A. I was afraid of getting shot. That’s what I was afraid of.
Q. Have you ever seen this man shoot anybody?
MR. BAUER: Objection, that is irrelevant and immaterial.
THE COURT: I will overrule the objection.
A. I saw him shoot my son.
Q. And after he shot-
MR. BAUER: Same objection. THE COURT: Same ruling.”

Defendant concedes that the state was justified in its inquiry as to why witness Callwell made the prior inconsistent statement. Defendant further concedes that the state may even inquire as to any threats made by the defendant for the purposes of coercing witness Callwell to make a false statement. What defendant does object to were the references to the alleged shooting of Callwell’s son in a prior unrelated incident.

The state’s answer to this is that inasmuch as the defendant’s attorney impeached the witness by proof of an inconsistent statement, it was thereafter proper to permit the state to examine the witness as to his reasons or motives in giving the prior inconsistent statement. We agree.

Here, it was the defendant who introduced this whole line of testimony by inquiring on cross-examination about the pri- or inconsistent statement. Defendant thus seeks to have the best of both worlds; he impeaches the witness with a prior inconsistent statement and then seeks to restrain the state’s inquiry into the reasons why the witness made the prior inconsistent statement.

In Hanger v. United States, 398 F.2d 91 (8th Cir. 1968), cert, denied, 393 U.S. 1119, 89 S.Ct. 995, 22 L.Ed.2d 124 (1969), the witness also had made a prior inconsistent statement. The witness was permitted to testify to the reasons for the inconsistent statement, including his fear that defendant would beat him; threats made by defendant to the witness; and, the witness’s knowledge of the defendant’s character. In Copes v. United States, 120 U.S.App.D.C. 234, 345 F.2d 723 (1964), the defendant, on cross-examination, produced a prior inconsistent statement by the witness. The court held the introduction of such evidence put the credibility of the witness in issue and it was permissible on redirect to inquire as to the reasons for the inconsistency. The court reasoned that the issue of credibility could not be resolved merely by a reiteration on redirect that the first testimony was true, and allowed exploration of the reasons behind the inconsistency.

The fact that the redirect examination opens the door for testimony regarding defendant’s character does not detract from the fact that such testimony is introduced only to show the witness’s motivation for the false statement.

We further note that the general rule allowing the witness to explain the reasons for his prior inconsistent statements has been widely adopted by the courts of various states. In People v. Grooms, 66 Cal. App.2d 491,152 P.2d 533 (1944), the witness was permitted to testify on redirect examination concerning threats made by defendant which caused the witness to make the prior inconsistent statement. The court held that such explanations are proper and “appellant may not complain if testimony as to such threats may have tended to place her in an unfavorable light with the jury. Since an attempt had been made to impeach the testimony of the complaining witness by introducing previous statements inconsistent with his testimony given at the trial, it was necessary to allow the complaining witness to explain the inconsistent statements or testimony.” Grooms, supra, at 536.

Also, in State v. Farmer, 97 Ariz. 348, 400 P.2d 580, 583 (banc 1965), the court had this to say about rehabilitating an impeached witness: “The general rule is that the impeached witness may endeavor to explain away the effect of the supposed inconsistency by relating whatever circumstances would naturally remove it ... To preclude the State from rehabilitating one of its impeached witnesses by this mode of rehabilitation would allow the defendant an unwarranted advantage in impeaching a witness with an assurance that his [the witness’s] credibility would remain impaired.”

Missouri cases are in accord with this rationale and have permitted witnesses to explain their reasons for making prior inconsistent statement. State v. Durham, 418 S.W.2d 23, 28-29 (Mo.1967). In State v. Griffin, 497 S.W.2d 133, 135-136 (Mo.1973), it was held that “in order to refute unfavorable inferences and to avoid the effect of the cross-examination, a witness may be asked as to his reasons for his statements on cross-examination or at other times, or for acts, omissions to act, or conduct on his part which have been brought out .

The scope and extent to which the redirect examination of a witness shall be permitted to go is a matter to be left largely to the sound discretion of the trial court, reviewable only for abuse.”

Here, the trial court did not abuse its discretion in allowing the witness to give his reasons for making the inconsistent statement.

We believe that since defendant initiated discussion of the prior inconsistent statement, he cannot now complain when the reasons for giving the statement include evidence of other crimes by the defendant. To hold that the state may not inquire as to the basis for the witness’s fears when that basis involves criminal acts of the defendant would seriously impair the rule which allows a prior inconsistent statement to be explained.

Judgment affirmed.

WEIER, P. J., and RENDLEN, J., concur.

      . Also see State v. Vickers, 209 Mo. 12, 106 S.W. 999 (1907), where the mother of a rape victim was permitted to state on redirect examination that she delayed in reporting the rape to her husband because “the child (the victim) said he (meaning defendant) will kill papa.” On cross-examination the defendant brought out the fact that the mother had delayed telling her husband of the rape. The court stated that it was “perfectly competent” for the mother to make this explanation.


author: PER CURIAM:

text:
    STATE of Missouri, Plaintiff-Respondent, v. Kenneth A. HALL, II, Defendant-Appellant.
    No. KCD 27514.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.
    Dale Reesman, Boonville, for defendant-appellant.
    John C. Danforth, Atty. Gen., Scott A. Raisher, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   PER CURIAM:

The defendant was tried by the court without a jury on a charge of first degree robbery. Finding defendant guilty, the court sentenced him to a five year penitentiary term. Defendant appeals, contending: (1) the false testimony of one of the State’s witnesses was such as to destroy that witness’ credibility and to cast doubt upon the witness’ entire testimony; (2) the evidence as a whole raises reasonable doubt as a matter of law concerning defendant’s guilt; (3) defendant was effectively denied the right to a jury trial as a result of his trial attorney’s alleged ineffectiveness. The judgment is affirmed.

Defendant’s first point is supported by arguments addressed to supposed inconsistency in the witness’ statements. This raises only an issue as to credibility. It is not within the province of an appellate court to pass upon credibility of witnesses. State v. Earnest, 162 S.W.2d 338 (Mo.App.1942). Determination of the credibility of witnesses in a court-tried case is a matter for the trial court. State v. Earnest, supra.

Defendant’s second point, alleging that the evidence as a whole raises reasonable doubt as a matter of law concerning his guilt, is in reality an attack on the sufficiency of the evidence. State v. Strong, 484 S.W.2d 657 (Mo.1972); State v. Earnest, supra, at 342. In determining such sufficiency, the evidence and all reasonable inferences therefrom in the light most favorable to the verdict are considered, and all evidence and inferences to the contrary are rejected. State v. Boone, 490 S.W.2d 318 (Mo.App.1973). So viewing the evidence, the trial court could have found the following.

On February 22, 1973, defendant and two companions picked up hitchhikers in the Kansas City, Missouri area and proceeded to drive east on Interstate 70 to the Arrow Rock/Pilot Grove exit. Just before exiting onto the Arrow Rock/Pilot Grove turnoff, there was a disturbance in the car between one Jamison and a girl named Marie—Jamison being one of the hitchhikers and the victim of the robbery; Marie being one of the defendant’s traveling companions. The disturbance involved Jamison, who was in the back seat, reaching over the front seat and twice touching Marie on her shoulder or breast. The second time Jami-son touched Marie, one Hopkins (driver of the car and boyfriend of Marie) pulled the car off Interstate 70 onto the above-mentioned exit, while shouting that he was going to beat Jamison’s head in. Before the car stopped, either Hopkins or defendant demanded Jamison give them his money. After the car stopped, the defendant and Hopkins forcibly removed Jamison from the vehicle. During this removal, the defendant hit Jamison once and kicked Jamison once. Jamison was knocked to the ground, and while there, was struck by a motorcycle chain 30 to 50 times. Both Hopkins and the defendant were standing over Jamison at the time of this beating. Thereupon, the defendant directed Jamison’s hitchhiking companion (one Mortimer) to take Jami-son’s money, lest Jamison be killed. Mortimer complied, giving the money so removed from Jamison to either Hopkins or Hall. After Jamison was beaten and robbed, the defendant, Marie, Hopkins, and Mortimer all drove off, leaving Jamison in a ditch beside the road. These facts suffice to make a case of first degree robbery.

In the Points Relied On, the defendant claims that “due to his counsel’s misrepresentations, [he] was effectively denied the right to a jury trial.” Then, in the argument portion of his brief, he. contends that he “felt” and had been so advised by his attorney, family, and friends, that a Cooper County jury would be prejudiced against him and, therefore, when his lawyer told him that he could not obtain a change of venue, and recognizing that he would consequently not be able to be tried by a jury composed of persons from a county other than Cooper County, he believed his only chance for acquittal was to waive trial by jury in Cooper County and proceed before the court as his trial lawyer advised. The defendant alleges that by misleading him as to the change of venue issue and by causing him to understand that a jury, no matter to what county venue would be taken, would be composed of Cooper County residents, his trial attorney caused him to be denied effective assistance of counsel and to be deprived of his right to a jury trial.

Whether defendant is arguing (1) he was denied the right to a jury trial and he was ineffectively represented by counsel or whether he is arguing that (2) he was denied the right to a jury trial because of the alleged ineffective assistance of trial counsel, is not clear. In either event, the record indicates that the defendant is not entitled to relief under this point.

At the beginning of the trial, the defendant was questioned by the trial judge as follows:

THE COURT: Mr. Hall, do you understand that you are charged in this particular case with the crime of robbery; do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that you have the Constitutional right to have your case heard by a jury of twelve persons?
THE DEFENDANT: Yes, sir.
THE COURT: And that at that trial, before you could be convicted by the Jury, that all twelve members of the Jury would have to agree upon your guilt; do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And is it your desire to waive your right to jury trial and to have this case heard by the Court without a Jury?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand, Mr. Hall, that in regard to guilt or innocence it’s necessary that the State convince me, not twelve people, but only me; that they prove their burden beyond a reasonable doubt to one person, not to twelve; do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And knowing that, it’s still your desire to have the case heard by the Court and not by the Jury?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Have you discussed this with Mr. Eldredge, your attorney?
THE DEFENDANT: Yes, sir.
THE COURT: Has he explained to you that you have the Constitutional right to a jury trial?
THE DEFENDANT: Yes, sir.
THE COURT: All right. I haven’t read the complete file on this case. I take it this case originated in Cooper County?
MR. WOOLDRIDGE: Yes, sir.
THE COURT: All right. And you are aware you have the right to take a change of venue and to have it heard in another county by some other jury other than a Cooper County Jury; are you aware of that?
THE DEFENDANT: Yes, sir.
THE COURT: Knowing that, is it your desire to have the case heard by the Court and not by the Jury?
THE DEFENDANT: Yes, sir.
THE COURT: All right. The Court will find — Has anybody, incidentally, Mr. Hall, anybody threatened you in any way, or promised you, to get you to waive your right to trial by Jury in this case?
THE DEFENDANT: No, sir.
THE COURT: All right. You are doing so freely and voluntarily on your own behalf?
THE DEFENDANT: Yes, sir.
THE COURT: All right. The Court will find that you have freely and voluntarily waived your right to trial by Jury. Would you be seated.

As the above colloquy indicates, the defendant knew he had a right to a change of venue. Further, he was explicitly advised of his right to a trial by jury.

It is manifest then that the defendant was not denied a jury trial, but rather, that he voluntarily and knowingly waived such a right. It is also abundantly clear he could not have been misled as to his right to a change of venue.

Additionally, prior to sentencing, the following colloquy appears:

THE COURT: Before we proceed with the sentencing, Mr. Hall, do you have any complaints to make in regard to Mr. El-dredge’s services to you in this case?
THE DEFENDANT: No, I don’t.
THE COURT: Do you feel that he’s adequately and competently represented you in this case?
THE DEFENDANT: Yes, sir.

Obviously, the claim of inadequacy of counsel now presented is an afterthought, making even clearer the spurious nature of defendant’s present claim as to his counsel’s services.

The judgment is affirmed.

      . The appellate courts of this State have often determined that the issue of ineffectiveness of assistance of counsel is better taken up, generally speaking, in a motion filed under Supreme Court Rule 27.26, V.A. M.R., than it is on direct appeal. State v. Cluck, 451 S.W.2d 103 (Mo.1970); State v. Hedrick, 499 S.W.2d 583 (Mo.App.1973), and State v. Blackwell, 459 S.W.2d 268 (Mo. banc 1970). However, when, as here, the record on appeal contains facts sufficient for a meaningful review, the court may review the issue on direct appeal. State v. Nolan, 499 S.W.2d 240 (Mo.App.1973); State v. Smith, 454 S.W.2d 539 (Mo.1970).


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Fielder Allen GREY, Defendant-Appellant.
    No. 9824.
    Missouri Court of Appeals, Springfield District.
    June 23, 1975.

      John C. Danforth, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Scott B. Tinsley, Springfield, for defendant-appellant.
   BILLINGS, Chief Judge.

Defendant Fielder Allen Grey was found guilty of second degree burglary [§ 560.070, RSMo 1969, V.A.M.S.] and stealing [§ 560.-110, RSMo 1969, V.A.M.S.] by a Greene County jury which fixed his punishment at prison terms of eight and five years, respectively. Following an unsuccessful motion for new trial, defendant was granted allo-cution and formally sentenced. The judgment ordered the sentences be served concurrently. We affirm.

In his appeal the defendant seeks to raise four points for our review, to wit: (1) the insufficiency of the evidence to support the verdicts; (2) error in giving an instruction that voluntary intoxication is no excuse for the commission of a crime; (3) error in overruling his motion to suppress his in-court identification by witnesses because of suggestive identification procedures; (4) error in overruling his motion to suppress his statements to witnesses and officers because his intoxication rendered such statements involuntary.

In considering the defendant’s challenge to the sufficiency of the evidence to support the convictions, we consider the evidence and favorable inferences to sustain the verdicts, ignoring contrary evidence and inferences. State v. Kelliek, 521 S.W.2d 166 (Mo.App.1975).

Sometime between 8:15 p. m. and 11:15 p. m. on June 19, 1974, a mobile home housing the Best Buy Mobile Home Sales business in Springfield, Missouri, was burglarized. Items stolen included a desk calculator, a portable typewriter case, a citizen’s band radio, a clock, a radio, cleaning articles, caulking material and cigarettes.

At about 11:15 p. m. Bruce Blaunt and two of his neighbors were in an alley at the rear of his home, located about two blocks from the burglarized building, looking for prowlers. Blaunt and one of the other men had flashlights, and a neighbor’s house cast some light into the alley. The three men saw the defendant in the alley carrying “something” and confronted him. They asked the defendant what he had and where he was going. The defendant replied that he was leaving home because his wife had left him or he had caught her with another man and that he was carrying a suitcase with his clothes in it. The men saw the defendant was wearing a rubber glove on one of his hands and that the “suitcase” was a portable typewriter case. Blaunt ordered the defendant to place the case on the ground and open it up and told one of the men to call the police. The defendant dropped the typewriter case and started running down the alley. Blaunt and a companion gave pursuit, caught the defendant and began struggling with him. The defendant managed to disengage himself from the grasp of his pursuers and again ran.

Ten minutes later a police officer summoned to the area apprehended the defendant a few blocks from the alley. The officer gave the defendant the Miranda warnings, placed him in a patrol car and drove the vehicle to the alley where another officer, Blaunt and Blaunt’s companions were looking into the typewriter case. The articles stolen from the mobile home were in the case. Blaunt walked over to the patrol car, peered inside and, upon seeing the defendant, said: “They’ve got him already.”

At the scene the defendant told the officers that Blaunt and his companions had stopped him in the alleyway and clubbed him and he wanted to charge them with felonious assault. He explained his possession of the stolen articles by telling the officers he was walking down the alley and found them in the trash. The officers could smell intoxicants on the defendant’s breath, and Blaunt said “he either had some alcohol or something stronger than Pepsi” but the defendant “sure did run mighty fast to be drunk.”

The defendant testified in his own behalf. He admitted a prior burglary conviction and admitted that he was in the alley at the time of the encounter with Blaunt and his companions. He said he had been drinking “quite heavily” at a girl friend’s house for an hour or two and became “rather hostile” when she started showing affection for another man. He left his friend’s house and started walking home because he was “quite drunk”. He said he was walking along the alley when, by the aid of the bright moon, he saw the typewriter case near a trash barrel. Upon opening the case he saw the radio and “two-way set”. He closed the case and was carrying it when he encountered Blaunt and his cohorts. He couldn’t say for sure where he picked up the rubber glove and was attracted to it because it “was a very pretty color . a pale, pale yellow. . . . ” He acknowledged that he made a statement to Mr. Blaunt about his clothes and then told the police a different story about finding the stolen articles.

We agree with the defendant’s contention that the evidence upon which the jury reached its verdicts is circumstantial and that in such a situation the facts and circumstances relied upon must not only be consistent with each other and with the hypothesis of guilt but must also point clearly and satisfactorily to guilt as to exclude every reasonable hypothesis of innocence. State v. Morse, 503 S.W.2d 450 (Mo.App.1973). Likewise, we recognize that circumstantial evidence merely showing that the defendant had an opportunity to commit the theft charged and creating a suspicion of guilt, without more, is insufficient to make a submissible case. State v. Walker, 365 S.W.2d 597 (Mo.1963). Equally applicable is the rule that while circumstantial evidence must exclude every reasonable hypothesis of innocence it need not be conclusive and need not demonstrate an absolute impossibility of innocence. State v. White, 439 S.W.2d 752 (Mo.1969).

Here, the defendant does not quarrel with the sufficiency of the evidence to demonstrate that a burglary and theft in fact occurred. His complaint relates solely to whether the evidence sufficiently connected him with that crime to prove his criminal agency.

Evidence of a burglary and a recent unexplained possession of stolen property is sufficient to convict a defendant of both burglary and stealing. State v. Robb, 439 S.W.2d 510 (Mo.1969). And, a defendant’s explanation of his possession of stolen property is a question for the jury, and if the trier of fact does not believe the explanation then the possession remains unexplained.

In State v. Clark, 438 S.W.2d 277 (Mo.1969) the court said:

“There is no question but that in one sense defendant ‘explained’ his possession of the radiators, but this does not mean that the trier of the facts, in this case the court, was required to believe that explanation. Of course, if the trier of facts did not believe the explanation, the possession was in fact not explained, at least as far as the trier of facts was concerned. The contention now presented by defendant has been advanced in other cases. In State v. Denison, 352 Mo. 572, 178 S.W.2d 449, it was said: ‘[I]t seems to be appellant’s theory that if he presents an explanation [of his possession] then the jury cannot draw an unfavorable inference from his possession, whether they believe his explanation or not. But this is not the law. If it were, the rule of evidence under discussion would be useless. In almost every such case some explanation is offered by the accused. The doctrine in this State and elsewhere is that the credibility of the explanation is a question of fact for the jury [or the court in a jury waived case]; and if the jury [or court] disbelieves it the case stands with his possession unexplained.’ ” 438 S.W.2d at 279 (citations omitted).

In the Clark case the burglary was discovered one morning, and the defendant testified he had attended a party until midnight the night before and had slept until 9:00 a. m. the morning of the burglary. He said he found the stolen property beside the road later in the morning and thereafter attempted to sell it. The court held that when Clark’s explanation of his possession of the purloined articles was disbelieved there was substantial evidence to support his conviction. “[T]he exclusive and conscious possession of property recently stolen in connection with a burglary, when defendant’s explanation of such possession is disbelieved by the trier of fact, as it obviously was in this case, affords substantial evidence to support the verdict in a jury tried case, or the finding of guilty by the court in a jury waived ease.” 438 S.W.2d at 280.

We hold there was substantial evidence to support defendant’s convictions by the jury in the instant case.

The defendant’s point concerning the court’s instruction on voluntary intoxication has not been properly preserved for our review. In his motion for new trial the defendant alleged “the court erred in giving Instructions No. 1 through 7, inclusive, and Instructions 10, 11, and 12.” The instructions complained of is No. 7. No specific objection was levelled at No. 7 at the trial and, as demonstrated, the motion for new trial did not particularize the alleged error in giving this instruction. Rules 20.03 and 27.20(a), V.A.M.R.; State v. Smith, 451 S.W.2d 87 (Mo.1970). Nevertheless, we detect no error in the giving of No. 7. State v. Maggitt, 517 S.W.2d 105 (Mo. banc 1974).

Points 3 and 4, supra, are not for our consideration because the trial court’s actions in overruling the two motions to suppress were not assigned as errors in defendant’s motion for new trial. Rule 27.-20(a); State v. Alderman, 498 S.W.2d 69 (Mo.App.1973). Moreover, no objection was made at the trial to the in-court identification of the defendant by witness Blaunt. Further, the defendant admitted he was the individual carrying the case in the alley when confronted by Blaunt and his neighbors, and any possible error in identification testimony is cured when the defendant’s own testimony removes the issue of identification for the trial. State v. Bradford, 462 S.W.2d 664 (Mo.1971). On the matter of alleged involuntariness of an intoxicated defendant’s statements or confession, see State v. Heather, 498 S.W.2d 300 (Mo.App. 1973) and cases cited therein at 304-305. We also note that the defendant’s statements in this case were all exculpatory and he testified that by the time he talked to the police he had settled down. “I was coherent. I wasn’t just saying anything that came off the top of my head.” Assuming the points had been properly preserved for our review, we could find no merit in either.

The judgment is affirmed.

All concur.