author: NORWIN D. HOUSER, Special Judge.

text:
    Norma Faye Adams Lott FLYNN and Norma Faye Adams Lott (now Norma Faye Adams Lott Flynn), Administratrix W.W.A. of the Estate of Augusta Louise Smith, Deceased, Plaintiffs-Appellants, v. John C. DANFORTH, Attorney General of the State of Missouri, et al., Defendants-Respondents, and Vincent P. Nangle, Jr., et al., Intervening Defendants-Appellants.
    Nos. 37241, 37264 and 37265.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 7, 1976.
    Motions for Rehearing or Transfer Denied Feb. 18, 1977.
    Application to Transfer Denied April 11, 1977.

      Van Matre & Van Matre, William W. Van Matre, Jr., Mexico, Alvin H. Juergens-meyer, Warrenton, for plaintiff-appellant Norma Faye Adams Lott (now Norma Faye Adams Lott Flynn), Administratrix W. W. A. of the Estate of Augusta Louise Smith, deceased.
    Darryl L. Hicks, Warrenton, for plaintiff-appellant Norma Faye Adams Lott Flynn, individually.
    Mastorakos & Kopsky, Homer N. Masto-rakos, Paul W. Kopsky, Michael J. Doster, Chesterfield, for intervening defendants-appellants Vincent P. Nangle, Jr., Mary R. Nangle, Arthur W. Lamme, Anna Louella Lamme, Edward S. Reifsteck, Geraldine Reifsteck, Homer R. Stude and Wanda M. Stude.
    John C. Danforth, Atty. Gen., B. J. Jones, Asst. Atty. Gen., Jefferson City, for defendant-respondent.
   NORWIN D. HOUSER, Special Judge.

Action for a declaratory judgment, brought by Norma Faye Adams Lott (now Flynn) in her official capacity as Adminis-tratrix cum testamento annexo of the Estate of Augusta Louise Smith, deceased, against the Attorney General, City of War-renton, The Warren County Library District, by and through its named trustees, and Rosa Adams (who died before trial, leaving Norma the sole heir of Augusta), to construe the Last Will and Testament of Augusta. In a separate pleading, filed in her individual capacity, Norma alleged that a trust created by Augusta’s will (leaving the residue of the estate to the Warrenton public library) failed and that the assets of the estate passed to Norma under the laws of intestacy. Vincent P. Nangle, Jr. and wife, and three other couples, granted leave to intervene, filed an answer asking to be declared owners in fee simple of a certain described tract of 653 acres of land in Warren County by virtue of a deed to them executed by Norma as administratrix. The Attorney General contested the validity of the deed and the authority of the adminis-tratrix to convey the real estate by said deed. The trial resulted in a judgment and decree upholding the trust and declaring that the trust did not fail; declaring that the power of sale in Augusta’s will was a personal one and that Norma, as adminis-tratrix, had no authority to exercise the power and sell the real estate to defendants Nangle, et al.; that the deed was not executed pursuant to the statutes authorizing an administratrix to sell real estate and is void. Intervenors Nangle, et al. filed a motion to modify and amend the judgment to order Norma to repay all amounts of principal and interest paid by them on the purchase price. This motion was overruled without prejudice. Motions for new trial filed by Norma, individually and as admin-istratrix, and by Intervenors, were overruled. Norma appealed in both her individual and official capacities, and Intervenors appealed.

In her last will and testament, executed on May 31, 1945, after providing for payment of debts and funeral expenses and one $50 specific bequest, Augusta in Paragraph 3 devised the residue of her estate “to E. S. Aydelott, in trust for the following uses and purposes: ”, followed by three subpara-graphs lettered (A), (B) and (C). Subpara-graph (A) imposed on the trustee the duty to collect the income and after deducting expenses to pay the net income to Augusta’s mother for life. Subparagraph (B) provided that upon the death of Augusta’s mother the net income be paid to Norma for her education, and after completion of her education to Norma for her life. Sub-paragraph (C) provided: “At the death of my mother Augusta Louise Johnson, and my niece, Norma Fay Adams, or in the event that my [mjother and my niece shall precede me in death, then at my death I give, devise and bequeath the residue of my estate, whether real, personal or mixed, unto the Warrenton Public Library of the City of Warrenton, Warren County, Missouri.”

Paragraph 4 provided: “I direct that after my executor hereinafter named has finally settled my estate in the Probate Court, he shall then have the Judge of the Circuit Court of Warren County, Missouri, appoint the said E. S. Aydelott as trustee of the trust fund as set out in Paragraph III of this Will. Upon the death or refusal to act of said E. S. Aydelott, then it is my desire that the Judge of said Circuit Court appoint a successor trustee, who shall be a resident of the City of Warrenton, Missouri.”

Paragraph 5 provided: “I hereby give to my executor and trustee full power to lease or mortgage the real estate owned by me at the time of my death, or to sell the same either at public or private sale, on such terms and conditions as he may deem advisable and for the best interests of my estate; and said trustee shall report annually all sales and investments relating to my estate, to the Circuit Court of Warren County, Missouri, for approval.”

Paragraph 6 provided: “I hereby constitute and appoint E. S. Aydelott executor of this my Last Will and Testament.”

E. S. Aydelott and Augusta’s mother predeceased testatrix. Norma was appointed administratrix of the estate with the will annexed. In that capacity Norma filed a petition in the Probate Court informing the court that she believed it to be to the best interest of the estate that the 653 acre tract be sold because if left vacant it would depreciate in value, and praying for “an order authorizing her to list said property with Stude Realty Company for $80,000.00.” The court made an order, reciting the taking up of Norma’s petition to list the real property with the realty company “for the purpose of disposing of same on such terms as can be arranged”; that “it would be to the best interest of said Estate that said property be sold, and therefore orders that Norma Fay Adams Lott as Administratrix w. w. a. list said property for the purpose of selling and disposing of same on such terms as is marketable and reasonable.”

Norma’s deed to Vincent P. Nangle, Jr., et al. was headed

“DEED UNDER POWER OF SALE IN WILL

(Section 473.457 R.S.Mo.)”

It recited Norma’s appointment as adminis-tratrix with the will annexed; that the will empowered decedent’s executor “to sell and convey real estate, including the real estate hereinafter described”; that “Under the terms of Section 473.457, R.S.Mo., the First Party, as personal representative of the decedent, is authorized to execute the testamentary power above mentioned”; that decedent’s interest has not since her death been conveyed or ordered conveyed by the court; and that “The exercise by [Norma] of the testamentary power above mentioned is not conditioned upon approval by the Probate Court.” The stated consideration was $70,000.00. The grantees were to have and hold the property “as fully as [Norma],- as such personal representative of the decedent, may transfer and convey the same. The purpose and intent of this deed is to execute fully and completely the power contained in decedent’s last will aforesaid.” Norma executed the deed in her capacity as personal representative — as ad-ministratrix w.w.a. of the estate of Augusta.

Three principal issues are raised on this appeal: (1) whether the deed is valid or void, and if void whether Norma as admin-istratrix should be ordered to return to Intervenors the purchase price and interest paid by them; (2) whether Augusta’s will created a valid and binding public charitable trust in favor of the city public library, and if so whether the county library district is the proper beneficiary of that trust under the cy pres doctrine or the doctrine of deviation; and (3) whether the cause should be remanded for further proceedings.

(1) On the Validity of the Deed

The circuit court declared the administra-trix’ deed void, holding that Norma had no authority to execute the deed under the power of sale in the will; that the power was a personal power granted to E. S. Ay-delott alone, beyond the power of Norma to exercise as administratrix, and that the deed was not made pursuant to the statutes authorizing an administrator to sell real estate, Chapter 473, RSMo 1969.

Administratrix Norma and Intervenors contend that the court erred in so holding; that the power was not personal to E. S. Aydelott; that Norma, as administratrix, had authority to enter into this conveyance as a proper exercise of a general power of sale granted in the will; that no order of sale or order by the Probate Court approving a sale was necessary.

Section 473.457, RSMo 1969, dealing with the sale of property under the power granted in a will, follows:

“1. The sale and conveyance of property under a will shall be made by the acting executor or administrator with the will annexed, if no other person is appointed by the will for that purpose, or if such person fails or refuses to act.

“2. Whenever power to sell or otherwise deal with property under a will, by the terms thereof, is personal to the executor therein designated, the court may direct the exercise thereof by a successor executor or administrator or by some other person. The court has full power to supervise the exercise of such powers and to make such orders as are necessary to effectuate the will of testator.

“3. When power to sell, mortgage, lease or exchange property of the estate has been given to any executor under the terms of any will, the executor may proceed under such power, or under the provisions of this law, as he may determine.”

At the time the will was executed the predecessor section to Subsection 1 was in force, in form substantially the same (for our purposes) as the present subsection. Subsection 1 covers situations in which the power of sale conferred in a will is absolute and unconditional; where the testator directs a positive and peremptory sale of the land, unrestricted by conditions or limitations, and no personal trust or discretion is vested in the executor. In such case the power comes within the scope of the official duties imposed by law upon executors, is executorial in nature, inheres in and follows the office, and may be executed by the administrator with the will annexed. Rawlings v. Rawlings, 332 Mo. 503, 58 S.W.2d 735 (1933), and cases cited l.c. 737[10], If the power to sell granted in the will is not a personal power, but is an “official” power inhering in the office of executor or administrator, the power can be exercised by a successor without an order of the probate court, but it terminates with the closing of the estate and must be exercised during the continuance of the administration. That is not the situation in this case. Subsection 1 does not cover this case, in which there was no absolute direction to sell and in which a personal trust was created in which the executor was authorized in the exercise of his discretion and within the limits imposed (but not directed absolutely) to sell.

Subsection 2 pertains to personal powers of sale. If a power to sell granted in a will is a personal power the donee is a fiduciary invested with a personal trust independent of the official character of the donee as an executor. A personal power survives the final administration of the estate and continues until the trust is executed or until the donee of the power has had a reasonable time within which to execute the trust. Sales made in the exercise of a personal power need not be authorized or approved by the probate court.

Subsections 2 and 3 were first enacted in 1955. Laws 1955, p. 385, § 168. Prior to 1955, upon the death of the donee of a personal power, it was necessary to resort to a court of general equitable jurisdiction for the appointment of a new trustee “with authority adequate to the duties to be discharged.” Rawlings v. Rawlings, supra, 58 S.W.2d l.c. 737. Subsection 2 was drafted to permit the probate court to exercise equitable jurisdiction in dealing with a discretionary or personal power given in a will. See Committee Comment in Historical Note following § 473.457.

Whether the power to sell was personal or official depends upon the intention of testatrix, as her intention may be ascertained from the express language of the will. As indicated above, paragraph 5 of the will conferred upon the executor and trustee a permissive power to sell the real estate, investing him with wide discretionary powers within stated limitations, but there was no express or absolute direction or command to sell. “ ‘If the will confers a power of sale, coupled with a discretion to sell or not as the donee of the power sees fit, the trust is personal, * * ” Rawlings v. Rawlings, supra, 58 S.W.2d l.c. 737. “Without further elaboration, therefore, it follows that, as the power granted by the will of Thomas Allen vested the donees of the power with a discretion, the power was personal, and not official, * * Donaldson v. Allen, 182 Mo. 626, 81 S.W. 1151, 1156 (1904). In Hazel v. Hagan, 47 Mo. 277, a power clothed in essentially similar language was held to be a mere personal trust, not to be executed by the donee of the power in virtue of her office as executrix, but at any time she might deem it advisable to carry out the design and intent of the testator. So also the language employed by testatrix in this case imposed a personal trust on the executor and trustee, authorizing him to sell, lease or mortgage without limit as to time “on such terms and conditions as he may deem advisable and for the best interest of my estate,” subject to approval by the circuit court. This called for the exercise of a wide and a wise discretion and good business judgment. This personal grant of power constituted him a fiduciary agent. Testatrix did not intend that this power terminate with the final settlement of the estate. Placing the estate in trust, after payment of debts and one small bequest, net income payable throughout the continuance of two lives, residue to the library, clearly shows an intention to set up a long-term scheme of disposing of her property, far beyond the period of administration. Such a plan is inconsistent with the exercise of these powers by an adminis-tratrix, whose term of office would normally expire with the final settlement of the estate. Clearly, testatrix did not intend that the power of sale granted Mr. Aydelott end upon his death or refusal to act. Provision was made for the appointment of a successor trustee in either of those events. Cognizant of the then-existing law (under which a successor trustee of a personal power could be appointed only by the circuit court) and apparently in an attempt to avoid the possible exercise of the personal power by a probate-court-appointed successor (which eventually was provided for by Laws 1955, p. 385, § 168), testatrix expressly provided for the appointment of a successor by the circuit court. That testatrix contemplated a continuing administration of the trust through the years is further indicated by her provision in paragraph 5 for annual reports to and approval by the circuit court of all sales and investments.

We are not persuaded by the suggestion that testatrix used the designation “my executor hereinafter named” in paragraphs 1 and 4 but failed to identify him by name or by the use of the words “hereinafter named” in paragraph 5, and that therefore testatrix intended the executor and trustee named in paragraph 5 to be any person administering the estate. The omission appears to have been inadvertent, and the conclusion sought to be drawn is speculative, conjectural, and untenable in view of the considerations to which we have referred.

But, say Intervenors, even if the power of sale is construed to be a personal power, Norma had authority to sell the real estate to Intervenors by virtue of Subsection 2 of § 473.457, supra, on the theory that the Probate Court’s order to list the property for sale constituted an order to exercise the power of sale. Subsection 2 was enacted ten years after the execution of the will. Assuming but not deciding that Subsection 2 would not be inapplicable for that reason, we hold that the Probate Court order to list the property for sale did not constitute a direction by the court to exercise the power to sell or a supervision of the exercise of that power within the meaning of the subsection. The order to list appears to have been a preliminary step in assuming jurisdiction to supervise the exercise of the power of sale, but it did not in terms or in legal effect constitute an order to sell the property and was not so intended. That in entering the order to list the probate judge did not intend to authorize or approve a sale is made clear by two letters written by the probate judge to Norma. In these letters the probate judge took exception to Norma’s annual settlement showing sale of the property for $70,000 and payment of a broker’s commission of $4,200, “all without complying with mandatory provisions by law and without authorization of this court. Consequently, neither the sale or your settlement can be approved.” The judge construed the power of sale to be a discretionary power personal to the named executor; one which could not be exercised by a successor as an official power.

The power being personal, and not official, it was incumbent upon Norma, the administratrix, who had no mandate from testatrix, to obtain court approval and direction of her exercise of the power of sale, either from the circuit court, in the exercise of its general equity powers, or from the probate court under Subsection 2, if the later-enacted law applies. She could proceed to execute an administratrix’ deed without recourse to a court for court approval only in case the will imposed upon the executor an absolute and mandatory obligation to sell the property. For example, see Earney v. Clay, 516 S.W.2d 59, 63[4] (Mo.App.1974). Not having obtained the necessary court approval, Norma had no authority to exercise Mr. Aydelott’s personal power of sale. Her purported deed to Intervenors was and is null and void, and the circuit court properly ruled the deed invalid.

(2) On the Question of a Charitable Trust

The circuit court found and declared that testatrix created a charitable trust in which the Warrenton Public Library of that city was beneficiary; that the named beneficiary was not in existence at the date of probate of the will, but had merged with and become a part of the Warren County Library District; that the latter should be recognized as beneficiary of the trust.

Norma, in her individual capacity, excepts to the court’s findings, claiming testatrix did not intend to and did not in law create a trust with the library as beneficiary; that the Warrenton public library did not merge with and become a part of the Warren County Library District because Warrenton public library was abolished and nonexistent as a legal entity prior to probate of the will; that Warren County Library District was not mentioned in the will, was not intended to be a beneficiary, and should not be recognized as such; that Subparagraph 3(C) of the will is not a devise for a charitable use but an outright devise of the residuary estate to a designated beneficiary as absolute owner; that the named beneficiary having gone out of existence the residuary clause lapsed, and therefore the residuary estate goes to Norma as the nearest heir of testatrix under the laws of intestacy.

The gift to the city public library constituted a public, charitable trust. Voelker v. St. Louis Merc. Library Ass’n, 359 S.W.2d 689, 693 (Mo.1962); IV Scott on Trusts, 3rd Ed., § 370, p. 2871. Fourteen years after the execution of the will and ten years before testatrix’ death the city library board requested permission to become a part of the county library district, pursuant to § 182.040, RSMo 1969, 1975 Supplement. The trustees of the county iibrary district approved. The city by ordinance abolished the city library and the city notified the county court of its action and requested that the city be included in the county library district levy. The county court passed a resolution ordering that the city become a part of the county library district and that the city be liable for taxes levied for free county library purposes as provided in § 182.040. Thus the city public library, the named devisee, ceased to exist subsequent to the execution of the will and during testatrix’ lifetime. It merged into the county library district. The nonexistence of the devisee as a legal entity at the time of testatrix’ death, however, did not cause the devise to fail, because of two saving rules stated in Vol. IV of Scott on Trusts, § 397.3: (1) “Where a devise or bequest is made to a charitable corporation which either before or after the death of the testator has been consolidated with another corporation, or has been merged in another corporation, the consolidated corporation or that into which the other has been merged, will be entitled to receive the property, unless the settlor manifested a different intention.” Idem, p. 3053. (This common law rule is codified in the case of religious and charitable corporations, § 352.-160, and not for profit corporations, § 355.-215, RSMo 1969.) (2) “Non-existence. The question of the failure of the disposition also arises where it is made to a corporation which * * * subsequently ceased to exist. Where the existence of the particular organization is not of the essence of the gift, where the primary purpose of the testator was that the property should be applied to certain charitable purposes, the disposition does not fail.” Idem, p. 3048.

The existence of the city library, or the identity of the donee, does not appear to have been of the essence of testatrix’ gift. “Where a testator devises or bequeaths property to a charitable corporation to be applied to a particular charitable purpose, it is to be inferred that the application of the property to the designated purpose is the testator’s primary intention, and that the choice of the organization to make the application is secondary.” Vol. IV, Scott on Trusts, § 397.3, p. 3044, cited with approval in First National Bank of Kansas City v. Jacques, 470 S.W.2d 557, 561[5] (Mo.1971). The clear and evident primary purpose, indeed the general purpose, of testatrix was to devote the residue of her estate, following the termination of the life interests, to the provision of library facilities and services for the benefit of the public in the City of Warrenton. Therefore, although literal compliance with the terms of the gift became impossible upon the abolition of the city library, the nonexistence of the city library as a legal entity at the time of testatrix’ death did not effect a lapse or cause a failure of the devise, because under the cy pres doctrine, First National Bank of Kansas City v. Jacques, supra, 470 S.W.2d l.c. 561[6], the circuit court properly designated the county library district (which provides library facilities and services for the benefit of the public in the City of Warren-ton), as the beneficiary of the trust. Such a decision enforces the primary charitable purpose of testatrix as nearly as possible in conformance with her intention. Thatcher v. Lewis, 335 Mo. 1130, 76 S.W.2d 677, 682 (1934); 14 C.J.S. Charities § 52 c., p. 514. To declare a lapse and a failure of the trust would frustrate the overriding charitable purpose of testatrix and defeat her obvious wish that Norma be given a life interest and not the residuary estate in fee. The devise will vest upon the termination of Norma’s life interest. In the meantime the county library district is recognized as the beneficiary of the residuary devise and bequest, and the county library district will succeed to the residuary estate if at the termination of Norma’s life interest it is in existence, functioning and supplying library facilities and services to the public in War-renton, and if in the meantime the city public library shall not have been re-established.

(3) On the Question of Remand

The circuit court, sitting in equity, having acquired jurisdiction, should have done full and complete justice in this action for a declaratory judgment, by passing upon the request of Intervenors, under their prayer for general relief and their Motion for Modification and Amendment of Judgment, for a refund of the purchase price paid, together with interest thereon, and should have treated the question of allowance for improvements on the premises. Metropolitan St. Louis Sewer District v. Zykan, 495 S.W.2d 643 (Mo.1973); Linville v. Ripley, 347 Mo. 95, 146 S.W.2d 581 (1941).

Accordingly, the declaratory judgment dated April 10, 1975 is affirmed as far as it goes, including the appointment of a successor trustee, but the order of July 7, 1975 overruling Intervenors’ Motion for Modification and Amendment of Judgment is reversed, and the cause is remanded for a reconsideration of the evidence introduced on the motion; for the conduct of a further hearing and the taking of additional evidence thereon if any party so requests; for the determination of the motion on its merits, and the incorporation into the final judgment of the action of the court on the motion.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


source: Caselaw Access Project

author: WEIER, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Melvin B. WILLIAMS, Defendant-Appellant.
    No. 37822.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 14, 1976.
    Motion for Rehearing or Transfer Denied Feb. 16, 1977.

      Robert C. Babione, Public Defender, James C. Jones, St. Louis, Christelle Adel-man Adler, Asst. Public Defenders, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Charles B. Black-mar, Spec. Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Terrence J. O’Toole, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Melvin B. Williams appeals from a conviction of stealing from a person. In this court-tried case, defendant was sentenced to one year imprisonment in the City Workhouse. He now contends that the trial court erred in overruling defendant’s motion to strike testimony regarding the ownership of a cap found by the victim at the scene of the crime. His objection is twofold: 1) the officer’s testimony which established this fact indicated that defendant had not been advised of his Miranda rights at the time and place questioned, and 2) the defendant had previously indicated he did not wish to make any statement.

The victim had her purse and a shopping bag stolen as she waited for a bus in the City of St. Louis. She was knocked to the ground and could not identify her assailant. After the incident occurred, she discovered a cap on the ground at the scene. Three other persons assisted in the pursuit of the defendant before he was apprehended by the police. The stolen purse and bag were both recovered, and the items identified by the victim. All of those engaging in the pursuit identified defendant. When defendant was taken into custody, he was advised of his right to remain silent and that anything he said could and would be used against him in court. He acknowledged that he understood his rights and he did not make any statement at that time. He was immediately driven in the police car to a nearby funeral home where the victim had gone. There, the victim confirmed the fact that she could not identify the defendant, and another officer asked the defendant a single question concerning the ownership of the cap. He answered that the cap was his, saying that he had lost it while running from a dog. After an acknowl-edgement from defendant that he understood the Miranda warnings, his subsequent response to a question by a police officer adequately evidences the waiver of his rights. State v. Collins, 519 S.W.2d 362, 363[1, 2] (Mo.App.1975). The evidence here indicated that defendant was asked about the cap within a short time after he had been given the Miranda warnings. He advised the officer who gave the warnings that he understood them but did not make a statement at that time. There is no indication that he ever refused to make a statement either before or at the time he answered the one question. Sufficient evidence of the voluntariness of the answer sustained the trial court’s ruling. State v. Collins, supra.

The judgment of the trial court is affirmed.

DOWD and CLEMENS, JJ., concur.


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Thomas HENDERSON, Appellant.
    No. 36882.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 28, 1976.
    Motion for Rehearing or Transfer Denied Feb. 16, 1977.
    Application to Transfer Denied April 11,1977.

      Timothy A. Braun, Public Defender, Clayton, for appellant
    John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Thomas Henderson was found guilty by a jury of robbery in the first degree by means of a dangerous and deadly weapon. He was charged pursuant to § 556.280 RSMo 1969 as a second offender and was sentenced by the court to imprisonment for a term of ten years. This appeal followed. We affirm.

Appellant does not challenge the sufficiency of the evidence. We need only state that a jury reasonably could find that on June 23, 1973, appellant entered the Quick Shop at 1923 Hanley Road in St. Louis County, and by use of a .45 caliber automatic pistol took money from the cash register, which was under the control of Mrs. Josephine Snow, the manager, and from the billfold of Mr. Arthur Snow, her husband and a part time employee.

Appellant first asserts that the trial court committed reversible error in denying his motion for a mistrial when on two occasions the prosecuting attorney referred to photographs, one of which was of appellant, as “mug shots.” Appellant argues that this reference (a) “indicated that [he] had prior criminal involvement;” (b) “prejudiced defendant as inadmissible evidence of prior arrest;” and (c) “violated a protective order.”

Prior to the use of the term “mug shots” by the prosecutor, Mrs. Josephine Snow had testified that immediately after the robbery she called the police, an officer then talked to her and obtained a description of the robber, and a few hours later the officer returned with photographs of four individuals, one of which consisted of a front and side view of appellant. Mrs. Snow testified that the two views of appellant were “the ones that the policeman brought to us” and that they were pictures of the person who robbed her. Therefore, at the time the references were made to “mug shots,” the jury knew, as appellant admits in his brief, that “the four pictures which [the police officer] brought back with him were at the time of the robbery of the Quick Shop available to the police and therefore had not been taken as a result of the present charge.” For this reason, insofar as it may be argued that the use of the term “mug shots” indicated that the photograph of appellant was a part of the police records and for that reason implied that appellant had a prior criminal record and had previously been arrested, the prosecutor told the jury nothing it did not already know.

On each occasion when the term was used, appellant asked only for a mistrial. The court indicated it would give other relief because, following the first usage, without a request it admonished the jury to disregard the question in which the term was used.

Because the use of the term did not tell the jury anything it did not already know, and because of the opinions of this court in State v. Harris, 534 S.W.2d 516 (Mo.App.1976); State v. Carson, 501 S.W.2d 503 (Mo.App.1973); and State v. Rutledge, 524 S.W.2d 449 (Mo.App.1975), as stated in State v. Barnes, 536 S.W.2d 932, 933 (Mo.App.1976), “further discussion of this ‘mugshot’ issue would have little, if any, prece-dential value.” As in the Barnes case, there was no direct reference to either prior arrests or convictions. We see no special significance to the fact that a so-called protective order had been made. There was nothing to indicate a deliberate and intentional violation of that order.

“Every error which might occur in the trial of a case [assuming error in the circumstances of this case, of which we have substantial doubt] does not necessarily require the granting of a mistrial,” State v. Smith, 431 S.W.2d 74, 82-83 (Mo.1968), and the drastic remedy of a mistrial “should be exercised only in extraordinary circumstances,” State v. James, 347 S.W.2d 211, 214 (Mo.1961), and “only when the incident is so grievous that the prejudicial effect can be removed no other way.” State v. Camper, 391 S.W.2d 926 (Mo.1965). The trial court did not consider the incident warranted the granting of a mistrial, a matter in which it has considerable discretion. The proper function of an appellate court in this situation is to determine whether, as a matter of law, the trial court abused its discretion, and it clearly did not.

Appellant next asserts that the trial court “committed reversible error by departing from its prescribed role as impartial administrator of justice in commenting in the presence of the jury that an objection by [appellant’s] attorney was ‘ridiculous.’ ” The comment was made in regard to a request for a mistrial during the voir dire examination and not concerning an objection. The only relief requested was that “the court’s comment on my objection * * be noted for the record.”

Appellant received all the relief requested, and other than the issue of whether the trial court should have granted a mistrial without a request therefor, appellant has preserved nothing for appellate review. State v. Cheatham, 340 S.W.2d 16 (Mo.1960); State v. Holmes, 419 S.W.2d 15 (Mo.1967); State v. Platt, 525 S.W.2d 637 (Mo.App.1975). This is not the kind of occurrence that calls for the application of Rule 27.20(c), and it certainly does not at the appeal stage justify a reversal of the judgment; the only relief now available. We consider this incident trivial in nature, and our review of the entire record calls for the comment that the trial court exercised commendable restraint during the entire trial.

Appellant’s third contention is that the trial court erred in “permitting the prosecutor in voir dire and in closing argument to explain to the jury * * * that ‘reasonable doubt’ does not mean ‘beyond a shadow’ or ‘beyond any doubt.’ ” He asserts this was reversible error because “in a close case” such an explanation “improperly stated the law, confused the jury, and lessened the State’s burden of proof.

We first comment that we do not consider this to be a “close case.” Next, we find no incorrect statement of the law. Aside the issue of whether it was within the province of the prosecutor to make the remarks during the voir dire examination, he was legally correct when he said that reasonable doubt does not mean “beyond a shadow” or “beyond any doubt.” Third, every objection made by appellant to the comments of the prosecutor during the voir dire concerning reasonable doubt was sustained by the court. The only other relief requested was a mistrial, and this is the incident that brought forth the comment of the court previously discussed, that the request was “rediculous.” The only issue on this appeal as to the comments during voir dire is whether the trial court committed prejudicial error in refusing appellant’s request for a mistrial, and it obviously did not. A comment however is appropriate. As stated in State v. Van, 543 S.W.2d 827 (Mo.App.1976), a case pertaining to comments by the prosecutor during the voir dire examination, it is not the prerogative of counsel to inform the jury as to the law. Also, the voir dire examination of the jury is not the occasion for argument. There was some overstepping in this case as to each of these matters, but in the circumstances no prejudice to appellant resulted. Reversal of the judgment is not called for nor is it appropriate.

We turn now to the complaint as to oral argument. The following occurred:

“Mr. Dittmeier [prosecutor]: I talked to you on voir dire about following the instructions. You have to find him guilty beyond a reasonable doubt. Read the instructions. The burden is on the State. Again, the word reasonable is in there. If it was the law that you had to find him guilty beyond the shadow of a doubt—
“Mr. Braun: Your Honor, I object to his commenting on the burden of proof.
“The Court: Overruled.
“Mr. Dittmeier: If you had to find him guilty beyond the shadow of a doubt, I’d say shadow of a doubt, if that’s the law. That is what we would say, but it says reasonable doubt. If it said proof beyond any doubt, if that was the law, I’d say beyond any doubt, but it is not.
“Mr. Braun: Judge, I object to him continuing to comment on this * * *

Under the burden of proof instruction, (MAI-CR 2.20) the court instructed the jury that the defendant is presumed to be innocent and that this presumption places on the State the burden of proving beyond a reasonable doubt that the defendant is guilty. In the Notes on Use under this instruction it is stated that the Court may not further define reasonable doubt.

The Notes on Use, however, do not purport to limit counsel in oral argument. Such limitations as exist are by reason of the application of the general rules pertaining to the scope of oral argument. But, see, State v. Belleville, 530 S.W.2d 392 (Mo.App.1975), and State v. Sanders, 541 S.W.2d 782 (Mo.App.1976). There is no occasion to determine whether under the applicable rules this was permissible argument because, assuming that it was not, it was not prejudicial. What was said as to the meaning of the term reasonable doubt was legally correct, and no jury composed of reasonably intelligent men and women could have been confused or mislead by the argument.

Appellant’s final point is that the trial court erred in denying his “motion to suppress the introduction at trial of any testimony of (A) the selection of [his] picture by the Snows on June 25, 1973 (B) the identification of the defendant by the Snows at the video tape confrontation on February 18, 1974, and (C) the identification of [him] by the Snows in Court at the trial.” He asserts that each identification confrontation, individually and cumulatively, denied him due process because (1) the confrontations were so substantially suggestive that they were conducive to misidentification, (2) the State did not bear its burden of showing that the in-court identifications had an independent source, and (3) no court specifically ruled that the in-court identifications had an independent source.

Prior to trial appellant filed a “Motion to Suppress Identification.” At the hearing thereon appellant presented no evidence except the testimony of one of the three persons, other than appellant, who was in the lineup viewed by the Snows by use of closed circuit television. That testimony pertained only to the manner in which the lineup was conducted. Although in the motion to suppress it was requested that the court find that the out-of-court identification of the picture of appellant and the identification of appellant at the lineup were so “inherently suggestive and conducive to misidentification” that they “fatally infect[ed] any subsequent in-court * * * identification,” no evidence was presented at the hearing on the motion pertaining to use of the photographs or whether there existed a factual basis for identification independent of the photographs or lineup procedures. It is sufficient to say, as found by the trial court, that the evidence presented did not justify the sustaining of the motion. Appellant’s point is limited to the contention that the court erred in denying that motion, and that contention certainly has no support in the record.

Appellant argues, notwithstanding the limited nature of his point, that the trial court erred in admitting into evidence the testimony of Mr. and Mrs. Snow that they (a) identified the photograph of appellant as a picture of the man who robbed them, (b) that they identified appellant in the lineup, and (c) that they identified appellant in the courtroom as the robber. His argument is based on the reasons advanced in his point as to why the motion should have been sustained.

We first note that at trial appellant made no objection to (a) the testimony of Josephine Snow that she identified appellant in a lineup, or (b) to the in-court identification of appellant as the robber by Josephine Snow or by Arthur Snow. Before trial appellant requested a “continuing objection to the suggestive nature of the identification process,” but not only did the court not agree to such a procedure, it clearly indicated the contrary. When asked immediately thereafter if it was ruling that the “identification procedures * * * were suggestive or not suggestive,” the court replied that the issue was not then before it and that “you [appellant] can raise it again if you deem appropriate.” The testimony set out above to which no objection was made at trial is not preserved for appellate review. State v. Rice, 522 S.W.2d 656 (Mo.App.1975); State v. Stavricos, 506 S.W.2d 51 (Mo.App.1974); State v. Brown, 527 S.W.2d 15 (Mo.App.1975); State v. Bishop, 529 S.W.2d 165 (Mo.App.1975).

We shall first, consider the contention concerning the testimony of Josephine Snow and Arthur Snow that they identified appellant from his photograph as the robber. The contention on this appeal is that the “display of [his] picture to the Snows was unduly suggestive.”

Appellant first objected to “any reference to these photographs” for several reasons not material on this appeal. He then stated: “I’d like to renew my pretrial written motion suppressing the- identification by these photographs as being tainted by the identification process as being a suggestive identification process as a matter of law.” (Italics added.)

The use of photographs for the purpose of identification, without some evidence that the procedures employed were unduly suggestive, does not as a matter of law result in the process being improperly suggestive. State v. Wallace, 504 S.W.2d 67 (Mo.1973). Appellant cannot now on appeal contend that the admission of the testimony was error. There was no evidence at the hearing on the motion to suppress which would indicate that under the circumstances the process of showing the photographs was unduly suggestive, and at the time the above objection was made, or perhaps it should be called a renewal of the motion to suppress, there was no evidence before the court to indicate any improper or suggestive procedure. Mrs. Snow then without further objection identified the photograph of appellant as a picture of the person who was the robber.

During the direct examination of Arthur Snow he was shown the photograph of appellant which was displayed to him shortly after the robbery. Mr. Snow testified: “that’s the. photograph I picked out.” Appellant then objected as follows: “I’m going to object to that, your Honor, once again for the record on the basis of the former objection.” The only “former objection” to the testimony of this witness was that an answer constituted “evidence of a crime uncharged.” Mr. Snow then testified without further objection that the person shown in the pictures, which were admittedly of appellant, was the robber.

Both Mr. and Mrs. Snow had an adequate opportunity to view the robber at the time of the robbery. Each was shown photographs of four persons, apparently selected by the police as the result of the description of the robber furnished by Mr. and Mrs. Snow. Each immediately selected the photograph of appellant. This is not the situation where the police had a person in custody and showed a photograph of that person to the victim either alone or with other photographs. ■ There is no indication that any suggestions were made by the police, or that the pictures were so dissimilar that only the photograph of appellant was in accord with the description received from the victims. There is no basis to conclude that the display of the photographs was in any way suggestive or improper.

The remaining issue is whether there is merit to appellant’s contention that the lineup was unduly suggestive. As previously noted, there was no objection when Mrs. Snow testified that she identified appellant in the lineup. She viewed the same lineup as did Mr. Snow, but when he subsequently testified appellant stated; “On the basis of my pretrial motion that the lineup was unlawfully suggestive and as a matter of law should be excluded, I’d like to renew it at this time.” At that time the only evidence at the trial concerning the lineup before the court was that of Mrs. Snow on cross examination, and it can fairly be said that it did not indicate anything suggestive or improper in the procedure.

It is true that the lineup occurred almost eight months after the robbery, but this resulted from the fact that appellant was not apprehended by the police until then. Appellant emphasizes certain physical differences between appellant and the other participants, such as age, height and weight. Apparently one of the persons in the lineup had only one arm, but Mr. and Mrs. Snow viewed the lineup on a television screen from a closed circuit and according to Mr. Snow he did not “see any of their arms or hands” because “they [apparently the persons operating the equipment] didn’t go down that far.” Mrs. Snow was not questioned about this. There is no evidence that either Mr. Snow or Mrs. Snow observed any variations between the lineup participants that would indicate that appellant should be selected. See State v. Ealey, 515 S.W.2d 778 (Mo.App.1974); Gaitan v. State, 464 S.W.2d 33 (Mo.1971); State v. Britt, 504 S.W.2d 38 (Mo.1973). The lineup was not unduly suggestive, appellant’s contentions concerning it are without merit, and further discussion concerning it would have no precedential value.

The judgment is affirmed.

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


author: SMITH, Chief Judge.

text:
    Robert Jewel YOUNG, Appellant, v. STATE of Missouri, Respondent.
    No. 37496.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 28, 1976.
    Motion for Rehearing or Transfer Denied Feb. 16, 1977.
    Application to Transfer Denied April 11, 1977.

      Taylor H. Hollander, St. Louis, Ron Min-kin, Los Angeles, Cal., for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Robert L. Presson, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for respondent.
   SMITH, Chief Judge.

Movant appeals from the trial court action denying, without evidentiary hearing, his motion for post-conviction relief pursuant to Rule 27.26, V.A.M.R.

Movant was convicted of Murder in the second degree in March of 1973 and sentenced to fourteen years imprisonment. His conviction was affirmed by this court in State v. Young, 510 S.W.2d 732 (Mo.App.1974). The facts of the underlying case are stated there and will not be repeated here. Movant has raised seven points on appeal. Three deal with the failure of the trial court to give an instruction on manslaughter, one deals with the failure to give a self-defense instruction, one deals with the failure to provide the jury with adequate standards upon which to sentence, one with claimed error in the reasonable doubt instructions, and one with alleged ineffective assistance of counsel.

The failure to give the self-defense instruction was decided on direct appeal. Rule 27.26(b)(3) provides that the 27.-26 procedure is not to be used as a method of second appeal. We will not again review this contention. The point dealing with the reasonable doubt instruction is mere trial error and not properly cognizable under Rule 27.26. In addition this point has been squarely and frequently ruled against mov-ant’s contentions. State v. Davis, 482 S.W.2d 486 (Mo.1972).

Movant’s point that the jury was given no adequate standards upon which to sentence is also without merit. No authority for the contention that this is a violation of due process is advanced other than philosophical discussions of sentencing procedures. The United States Supreme Court has upheld jury sentencing based upon the jury’s assessment of the evidence it hears and appraisal of the character and demean- or of the defendant. See Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973). The sentence was within the statutory limits and the matter now raised was at no time presented to the trial court. Movant is entitled to no relief under Rule 27.26 on this point.

The failure to give a manslaughter instruction is also a trial error and should have been raised on direct appeal. Movant, however, contends that pursuant to Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) the failure to give the manslaughter instruction denied movant his constitutional right to due process by relieving the prosecution of the obligation to prove beyond a reasonable doubt every fact necessary to constitute the crime charged. While we entertain serious doubt that Mullaney is controlling in the posture of this case we have determined that no manslaughter instruction was required.

“In a case involving a felonious homicide, the evidence may show only the intentional killing of a human being. This is manslaughter. V.A.M.S. § 559.070. If, in addition, the elements of premeditation and malice, but not deliberation, are shown, the offense is murder in the second degree. V.A.M.S. § 559.020. If, in addition, the element of deliberation is shown, the offense is murder in the first degree. V.A.M.S. § 559.010.
“It is the duty of the court to ‘instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict . . . ’ [citations omitted].
“ . . . If, as in the Sparf case, supra [Sparf v. U.S.] (156 U.S. 51, 64, 15 S.Ct. 273, 278, 39 L.Ed. 343, there has been as a matter of law, ‘an entire absence of evidence upon which to rest a verdict of guilty of manslaughter,’ the trial court could properly have instructed the jury only as to murder in the second degree.” State v. Ayers, 470 S.W.2d 534 (Mo. banc 1971) [7],

In order for the intentional homicide to be reduced to manslaughter a sudden unexpected provocation, encounter, or assault must occur tending to excite the passion beyond control. It is the sudden happening or occurrence of the provocation rendering the mind incapable of reflection and obscuring reason that establishes the absence of malice and premeditation. State v. Clough, 327 Mo. 700, 38 S.W.2d 36 (1931) [1]; State v. Patterson, 484 S.W.2d 278 (Mo.1972) [1]; State v. Hubbard, 484 S.W.2d 224 (Mo.1972). While movant testified he was scared of the deceased at the time he fired the shots, there was no evidence of sudden provocation capable of obscuring reason or rendering the mind incapable of reflection. Movant’s testimony was that when he saw deceased come out of the Municipal Courts building and start walking in his direction he (movant) “just turned around and started shooting.” He inflicted four wounds on deceased. The evidence shows a malicious intent to kill. There was no indication of any sudden provocation, encounter or assault by deceased at the time defendant began shooting. Threats made earlier by deceased do not provide the necessary provocation. See State v. Clough, supra. As a matter of law there was no evidence to support a finding of manslaughter.

We do not find the determination of the trial court concerning ineffective assistance of counsel clearly erroneous. Accepting as true the allegations in movant’s motion and the truth of the statements of possible witnesses filed as exhibits we find no basis for a finding that movant was denied a fair trial because of counsel’s failure to conduct an investigation. The motion does not allege that the existence of some of these possible witnesses was called to the attention of counsel. Much of the testimony they are alleged to have been ready to give was clearly inadmissible either on hearsay or relevancy grounds. That evidence which might have been admissible was solely cumulative of events occurring one or two days before the shooting. On direct appeal and again here we have held that those events did not support either a manslaughter or self-defense submission. Additional, cumulative testimony concerning the same events does not change that. The failure of counsel to investigate, alleged by movant, did not deny movant a defense to which he was entitled nor deny him a fair trial. Floyd v. State, 518 S.W.2d 700 (Mo.App.1975).

Judgment affirmed.

NORWIN D. HOUSER, Special Judge, concurs in result.

ALDEN A. STOCKARD, Special Judge, concurs.


author: WEIER, Presiding Judge. CLEMENS, Judge,

text:
    STATE of Missouri, Plaintiff-Respondent, v. Dennis KIRKSEY, Defendant-Appellant.
    No. 35853.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 4, 1977.
    Motion for Rehearing or Transfer Denied Feb. 16, 1977.

      Joseph F. Beatty, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, David L. Baylard, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant Dennis Kirksey was found guilty by the jury of the offense of first degree murder, §§ 559.010 and 559.030, RSMo 1969, and sentenced by the court to life imprisonment. From this conviction, defendant appeals. We affirm.

Defendant does not challenge the sufficiency of the evidence, and the facts are briefly as follows. On January 8, 1973, Edward Payne was collecting money from coin telephones for Southwestern Bell Telephone Company. He was driving a green step van and was followed in a red Buick by Edward Byrne, a plainclothes security guard also employed by Bell Telephone. Mr. Payne doubleparked in front of Nash’s Recreation Parlor in the 5600 block of Martin Luther King Drive to make a collection. Mr. Byrne doubleparked behind him. As Mr. Payne was exiting from Nash’s, he heard gunshots. Mr. Payne bent down in the glass-enclosed entryway, and looked out to see Byrne shooting through his rear car window. Mr. Payne also saw a black man, medium build, five feet seven inches tall, wearing a brown leather jacket, dark pants and a gray hat run from the scene while shooting. There was a trail of blood in the snow leading from the scene. Mr. Byrne had been shot and was pronounced dead on arrival at Homer G. Phillips Hospital. At approximately the same time, another man, later identified as defendant, was treated at Homer G. Phillips Hospital for gunshot wounds. Defendant’s clothing matched the clothing described by Mr. Payne. A fragment of glass from defendant’s brown leather jacket was analyzed and found to be the same color and density as glass from the rear window of Mr. Byrne’s automobile; the said glass fragment and a glass sample from the rear window of Mr. Byrne’s car were manufactured from the same “batch” of glass. Blood samples from the trail of blood at the scene and from defendant’s clothing were found to be similar after analysis.

The state also presented evidence over continuing defense objection that defendant was identified from a photograph as one of three men who had robbed Mr. Payne on an earlier occasion on September 1,1972, while he was collecting from coin telephones in his green step van. Mr. Payne testified that about a month after this robbery he spoke to defendant prior to defendant’s preliminary hearing, at which time defendant asked Mr. Payne why he was testifying against defendant and asked Mr. Payne not to testify against him. Defendant denied the latter question and also denied involvement in the shooting incident.

Defendant first contends that the trial court erred in allowing Mr. Payne to testify concerning the robbery on September 1, 1972, at which defendant was identified. Defendant relies on the well-established general rule that proof of the commission of separate and distinct crimes is not admissible to prove the crime charged, unless such proof has some legitimate tendency to directly establish defendant’s guilt of the crime charged. But, it is equally well-accepted that evidence of other crimes is competent to prove the specific crime charged when it tends to establish: (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial. State v. Cooper, 541 S.W.2d 40, 44[6] (Mo.App.1976).

At trial, the prosecutor made an oral motion on the admissibility of evidence, stating that he intended to introduce evidence that defendant previously robbed Mr. Payne and that defendant had a conversation with Mr. Payne concerning the robbery, in order to prove the motive and intent of defendant for the crime charged. Thus, the state invoked the first and second exceptions to the general rule of exclusion. On appeal, the state contends that this particular evidence adduced at trial tended to establish defendant’s motive.

In homicide cases based wholly on circumstantial evidence, proof of motive is of paramount importance and is material to explain the killing and to show the connection of defendant with the crime or the inducement which led him to commit it. State v. Wheaton, 221 S.W. 26, 29[5] (Mo.1920). And where the defendant denies the crime, the question of motive gains further importance because absence of motive then tends to sustain defendant’s claim of innocence. State v Stapleton, 518 S.W.2d 292, 296[2] (Mo. banc 1975).

The instant case was based on circumstantial evidence and the defendant denied involvement in the shooting incident. Motive was, therefore, important and material to the state’s case. From the testimony of Mr. Payne the jury could infer that the robbery of September 1,1972, and his testimony against defendant on that charge was a motive for the ensuing shooting incident. The trial court did not abuse its wide latitude in permitting the testimony of Mr. Payne on the robbery inasmuch as it developed the evidence of motive. Billings v. State, 503 S.W.2d 57, 60[7] (Mo.App.1973).

Defendant next contends that the trial court should have sustained defense counsel’s objection and declared a mistrial when the state questioned a defense witness concerning his “busts”, street parlance for “arrests”. The allegedly improper question came about in the following exchange:

“Q Mr. Brown, you have done a lot of time, haven’t you?
A Yes, I have done time before.
Q And you talked about your raps, didn’t you?
A (No response)
Q When you get busted you talk about it to your buddies, don’t you?
MR. REARDON: Judge, I’ll object to the form of that question and ask the jury be instructed to disregard it.”

Defendant submits that a witness cannot be queried concerning prior arrests which did not result in convictions. However, this principle of law has no application to the challenged question. The prosecutor did not ask the witness the proscribed question of whether he had been arrested for any offense which did not result in conviction. The primary thrust of the challenged question is whether the witness had talked to other persons “[w]hen you get busted”. The emphasis therein and in several succeeding questions reviewed in the record is placed on possible conversations between the witness and the defendant relating to crimes they had committed after the witness had denied ever discussing the robbery of September 1, 1972 with defendant. Since the witness was not asked if he had been arrested, the question is not improper. Under the circumstances existing here, the trial court correctly overruled defendant’s objection.

Finally, the defendant contends that Instruction No. 6, the circumstantial evidence instruction, was erroneous. Defendant urges review of this instruction pursuant to the plain error rule, Rule 27.20(c), since the record reveals that no objection was made to Instruction No. 6 at trial or in defendant’s motion for new trial.

Trial in the instant case was held in August, 1973. Prior to the effective date of MAI-CR on January 1,1974, no certain and specific terminology was required in a circumstantial evidence instruction so long as it advised the jury, in substance, that the circumstances proved must be consistent with each other and with the hypothesis that the defendant was guilty, and inconsistent with any theory of his innocence and with every reasonable hypothesis, except that of guilt. State v. Burke, 462 S.W.2d 701, 704[4] (Mo.1971); State v. Burrage, 418 S.W.2d 101, 107[11] (Mo.1967). In both these cases the language of the approved instruction is nearly identical to the language of the instruction in the instant case.

Instruction No. 6 adequately addresses and instructs on the issue of circumstantial evidence, and there was no error in giving it to the jury.

The judgment is affirmed.

DOWD and CLEMENS, JJ., concur.

CLEMENS, Judge,

concurring.

The court’s opinion condones the cross examination of defense witness Willie Brown wherein he was asked, “When you get busted you talk about it to your buddies, don’t you?” As Judge Weier says, “busted” is street parlance for “arrested.” By the quoted question, the prosecutor was not asking but was declaring that the witness had been arrested. (His question was akin to the fictional question, “Have you stopped beating your wife?”) I believe the trial court’s denial of the defense objection violated the principle that a witness may not be impeached by showing he has been arrested.

I do not believe, however, this rises to the level of reversible error. Witness Brown contributed little to defendant’s defense and he had already been properly impeached as a felon by admissions he had “done a lot of time.” Considered in context I believe the error comes within Rule 84.-13(b) which proscribes reversal except for error materially affecting the merits of the action, which this does not do.


author: SIMEONE, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. William Victor NIELSEN, Defendant-Appellant.
    No. 36260.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Jan. 4, 1977.
    Motion for Rehearing or Transfer Denied Feb. 16, 1977.

      Alan G. Kimbrell, Rosecan, Popkin & Chervitz, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, J. Michael Davis, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Joseph A. Derque, III, Gene H. Fahrenkrog, Jr., Asst. Pros. Attys., Clayton, for plaintiff-respondent.
   SIMEONE, Judge.

This is an appeal by the movant-appel-lant, William Victor Nielsen, from an order of the circuit court entered on April 4,1974, overruling appellant's motion to withdraw his plea of guilty pursuant to Rule 27.25. The motion to withdraw was made before he was sentenced to thirty years imprisonment for the offense of murder in the second degree. For reasons hereinafter stated, we affirm.

Movant, William Victor Nielsen, was originally charged with murder in the first degree for the alleged killing of his father-in-law, Leonard Besel, on March 9, 1973. He was arrested at the home of a friend in the City of St. Louis for the offense and some hours later made a statement which implicated him in the murder. Throughout the day and that evening prior to his arrest, he had been taking numerous and sundry drugs. Prior to trial, a motion to suppress his statement was made by defense counsel. Hearing was held on that motion on September 5, 1973. This motion was heard by the same judge who subsequently heard the plea of guilty and the motion to withdraw and who sentenced the movant to thirty years imprisonment.

On the motion to suppress statements made by Nielsen, the testimony showed that during the day of the murder, March 9, 1973, beginning at about 11:00 a. m., mov-ant had taken some drugs — “Grass, acid and Darvons” and that “[a]round seven or eight o’clock" he arrived at the home of his friend — Joe Speaks — in the City of • St. Louis. While there for the evening, he sat around and talked with friends “smoking dope” and he took “[t]wo (2) hits of acid, smoked two and a half {2⅝) lids of grass and dropped six (6) or seven (7) Darvons.” During the previous day and a half, he had only about three and one half hours of sleep and that was during the afternoon of March 9, 1973. About midnight on March 9, two police officers of St. Louis County— Officers George Ice and Sam Yarborough— based upon information they had received earlier in the evening from relatives of the deceased, proceeded to the home of Mr. Speaks and inquired whether the movant was present. After determining that he was, Nielsen was requested to “come out to the car” so that the officers could speak to him. The officers drove around attempting to reach the dispatcher and finally pulled onto a grocery store parking lot nearby. On the lot was Mr. Besel’s automobile; the officers asked movant for the keys to this automobile and he [Nielsen] placed them on the trunk of the patrol car or gave them to Officer Yarborough. The keys fit the automobile and movant was placed under arrest by Officer Ice.

According to Officer Ice, he informed Nielsen of his constitutional rights and Nielsen indicated he understood them. At the scene, Nielsen did not implicate himself in the killing of Mr. Besel and indicated he knew nothing about the killing. The officers stayed on the grocery parking lot for “approximately two hours” while movant, Nielsen, “went to sleep in back of the police car.” Finally, the officers arrived at County Police Headquarters “between 2:00 and 3:00” a. m. on March 10, 1973. After Nielsen was fingerprinted and booked, he was left there and the two officers did not see him again until 9:30 or 10:00 a. m. the next morning.

Nielsen’s testimony at the hearing on the motion to suppress was that when the officers came to Speaks’ home, he went out to the patrol car and after the two officers exchanged a few words one of them said, . . [d]on’t bother about questioning him, he’s too doped up,” “too messed up” or “too far gone.” After the officers obtained the keys to Mr. Besel’s automobile on the parking lot, Nielsen got into the back seat of the patrol car and “went to sleep.” He woke up later in front of the “Clayton Court House”(?). He was taken into an office where other officers were present. It was “[a]round 1:00 when we arrived.” He contends that questioning took place throughout the night, that he was not advised of his rights, and that at about 5:00 a. m. was taken to Clayton jail. Movant testified that he made a statement about 4:00 a. m. which was typed up and handed over “to me” and he was told to “sign it.”

According to Officers Ice and Yarbor-ough, however, they did not interrogate him until the next morning at about 9:30 or 10:00 a. m. At that time, movant apparently gave several versions of what happened but the “stories . . . just didn’t hold” so he was conveyed to the “hold-over” about 11:30 a. m. Officer Ice testified that on the morning of March 10, Mr. Nielsen finally “told everybody to leave the office but Detective Yarborough, [and] that he would tell Yarborough exactly what had happened.” Finally, about 12:30 or 1:00 p. m., after having given certain statements containing discrepancies, “tears came to his eyes” and Nielsen gave a statement to Yar-borough which implicated him in the death of his father-in-law. The statement was transcribed.

Both officers testified at the hearing on the motion that at the time they first saw Nielsen late in the evening of March 9, or early in the morning of March 10 he seemed to be “glassy-eyed” and tired, but he responded to questions asked.

At the end of the hearing on the motion to suppress, although the record does not clearly state, the motion was overruled.

In October, 1973, the movant proceeded to trial before a jury. He was then represented by the public defender. During the opening statement of the assistant circuit attorney, he outlined the evidence which would be presented to the jury which included the testimony of Officers Ice and Yarborough that “. . . the defendant voluntarily and freely later on made a statement admitting the killing of the victim in this case, Leonard Besel.”

After a four-day trial and during the presentation of the evidence, a motion for mistrial was made and granted. Later, the defendant withdrew his plea of not guilty and entered a plea of guilty to a charge of murder in the second degree.

On January 28, 1974, his plea was taken. Counsel for the state amended the charge to murder in the second degree, and counsel for Nielsen withdrew the prior plea of not guilty and formally entered a plea of guilty. The court addressed Mr. Nielsen and questioned him concerning the facts and other matters. The court inquired whether he gave his permission to enter a guilty plea and also questioned him about the facts surrounding the death of Mr. Besel. Mr. Nielsen admitted that he stabbed Mr. Besel during the afternoon of March 9, 1973, and that he and his father-in-law engaged in an argument because the father-in-law accused him of “having his [Besel’s] kids sniffing tea leaves.” Nielsen stated that they had a struggle; Mr. Besel “got a knife out,” and Nielsen took it away and stabbed him ten or eleven times. Nielsen also used a billy club during the affray. Other details concerning Nielsen’s background and other matters were brought out. The plea was quite detailed. Nielsen stated that he was not under the influence of any drugs or alcohol, that he discussed the matter of the plea with his attorney before entering it, that no threats or promises were made and that he recognized he was entitled to various constitutional rights. The court informed him that it would follow the recommendation of the prosecutor’s office and would sentence him to thirty years. The plea was accepted and formal sentencing was deferred until a pre-sentence investigation could be made.

In March, 1974, and prior to the formal sentencing, movant filed a motion to withdraw the guilty plea. A hearing was held on this motion on April 4, 1974, before the same judge who earlier had heard the motion to suppress the statement (or statements). Mr. Nielsen’s attorney (the same attorney who represented him on the guilty plea) testified that after the plea had been entered he “ran into” Mr. Timothy O’Con-nor, employed by the St. Louis County Welfare Department, and counsel discussed the Nielsen case with him. Counsel testified that O’Connor told him that he remembered the Nielsen case when he was brought to the jail on March 10, 1973, and that “. he could recognize a person who is under the influence of narcotics.” O’Connor felt that any statement or confession Nielsen gave “would be unreliable” because he was “spaced out.” Counsel argues on the motion to withdraw that if he had been aware of this evidence he would have presented it at the earlier motion to suppress, and, not having obtained the information from O’Connor prior to the motion to suppress, he felt that “the defendant has had ineffective assistance of counsel.” Counsel further argued that if he had been aware of the observers’ testimony prior to the guilty plea, he would never have advised that appellant enter a plea of guilty. Counsel requested that the court hear two witnesses, Mr. West and Mr. O’Connor, who would testify as to Nielsen being under the influence of drugs so that any confession or statement might well have been suppressed at the hearing on the motion to suppress the statement(s).

The two persons who had observed Nielsen when he was in jail in March, 1978, testified at the hearing on the motion to withdraw the plea. Mr. Fred West’s testimony, however, was of no aid to movant. West remembered Nielsen “a little bit” when he was brought to the jail, and although he “seemed to be under the influence of something,”

“I wouldn’t know if he was under the influence of drugs or not. I didn’t pay him that much attention. ... I saw him a couple of times right after he first came in, but I wouldn’t know if he had been drinkin [sic] or not. He just looked a little drowsy eyed, that’s all.”

Mr. O’Connor, however, testified on the motion that he had worked as an undercover agent, made “buys,” had 15-18 classroom hours regarding narcotics, and was familiar with the type of condition that a person exhibits when under the influence of narcotic drugs and withdrawal. He recalled Nielsen being brought in — and about the third hour he was there, “. . .he was a little noisy, upset a little, belligerent, and they had to place him back in a two man cell by himself. He had all the symtoms [sic] of withdrawal.” O’Connor also stated that he told a woman at the booking desk “we had a junky in hold-over.”

The court, after hearing this testimony, overruled the motion to withdraw stating, “. . .1 feel that if he hadn’t made a case against himself, I would not have accepted his plea.”

After overruling the motion, after receiving the pre-sentence report which recommended against probation, and after granting allocution, the court sentenced Mr. Nielsen to thirty years in the department of corrections. An appeal was then taken from the court’s order overruling the motion to withdraw.

On this appeal the appellant contends that “[t]he court erred in refusing to allow the defendant to withdraw his plea, prior to sentencing, in that the ignorance of defendant and his lawyer of the existence of an independent witness [O’Connor] to defendant’s drugged state at the time of his confession rendered the attorney’s advice [to plead guilty] incompetent and the defendant’s plea unintelligent.”

The State ignores the basic contention and authorities relied upon by the appellant and is content to point out that the trial court did not abuse its discretion in overruling the motion to withdraw since the appellant received competent assistance of counsel and his plea was voluntary. '

As we view it, the thrust of appellant’s contention is that had O’Connor been located by counsel prior to the motion to suppress Nielsen’s statement and had O’Connor testified at the hearing on the motion to suppress his corroborating testimony concerning withdrawal symptoms may well have tipped the scales so that the trial court hearing the motion to suppress may have held the confession to be involuntary and constitutionally inadmissible and, hence, may well have sustained the motion. If the statement had been held inadmissible, then in turn this would have had an effect on movant’s plea of guilty, for without the statement, defense counsel probably would not have advised appellant to plead, and Nielsen probably would not have pleaded to the offense. Hence, the plea was not intelligently made so that the plea should have been allowed to be withdrawn. Appellant requests therefore that we reverse the trial court with directions to set aside the plea of guilty so that a new hearing may be had on the motion to suppress the confession. After that, then the appellant will be in a better position to determine what further proceedings may be taken.

In effect, appellant contends that he and his counsel on the motion to suppress were unaware of the “facts” which were testified to by O’Connor corroborating his drugged condition which may well have rendered the confession inadmissible, so that such unawareness constitutes (1) ineffective assistance of counsel, and (2) makes the plea based on advice to plead guilty unintelligent and involuntary. Under the circumstances, he contends that the trial court abused its discretion in overruling his motion to withdraw his guilty plea.

The precise issues confronting us, as we view them, therefore, are: (1) if movant-ap-pellant and his counsel were unaware of certain facts at the time of the hearing on the motion to suppress the confession which may have rendered the confession constitutionally inadmissible, (a) does such unawareness constitute ineffective assistance of counsel, and (b) does the advice to plead guilty based on such unawareness render the subsequent plea unintelligent and involuntary so that appellant’s motion to withdraw his plea should be sustained; and (2) whether the trial court in refusing to sustain the motion to withdraw the plea under such circumstances was clearly erroneous and abused its discretion.

Appellant relies on numerous federal authorities which, he contends, support his thesis that in such instances the plea was unintelligent and should be set aside.

We are governed in this proceeding to withdraw the guilty plea by certain well recognized principles: (1) on appeal from a denial of a motion to withdraw a guilty plea our review is limited to a determination of whether the ruling of the trial court was clearly erroneous, Young v. State, 438 S.W.2d 280, 283 (Mo.1969), State v. Davis, 438 S.W.2d 232, 234 (Mo.1969), or there was an abuse of discretion; (2) the burden is on the movant to prove by a preponderance of evidence that the court erred in overruling the motion to withdraw the plea of guilty, cf. Beach v. State, 488 S.W.2d 652, 656 (Mo.1972); (3) a movant does not have an absolute right to withdraw his plea of guilty whether before or after sentence, State v. Jackson, 514 S.W.2d 638, 641 (Mo.App.1974), and may do so only in extraordinary circumstances, Mooney v. State, 433 S.W.2d 542, 544 (Mo.1968); and (4) if there is evidence that the defendant was misled or induced to plead guilty because of fraud, mistake, misapprehension, fear, persuasion or holding out of hopes which prove to be false or ill-founded, he should be permitted to withdraw his plea since the law favors a trial on the merits, State v. Rose, 440 S.W.2d 441, 443 (Mo.1969).

Tested by these principles, we conclude that under the circumstances of this record the trial court did not abuse its discretion in overruling the motion to withdraw the plea and affirm the order overruling the motion to withdraw.

Rule 27.25 provides: “A motion to withdraw a plea of guilty may be made only before sentence is imposed or when imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.”

Under this rule the withdrawal of a guilty plea, whether the motion is made prior to or after sentence, is not a matter of right. A defendant may not by reason of ■ Rule 27.25 withdraw his plea as a matter of right. State v. Mountjoy, 420 S.W.2d 316, 323 (Mo.1967). As in the Federal system, under comparable Rule 32, Fed. Rules Crim. Proc., the withdrawal of a guilty plea before sentencing is not an absolute right but a decision resting in the sound discretion of the trial court which will be reversed only for an abuse of that discretion. Hughes v. United States, 371 F.2d 694, 695 (8th Cir. 1967); United States v. Simmons, 497 F.2d 177, 178 (5th Cir. 1974), cert. den., 419 U.S. 1048, 95 S.Ct. 623, 42 L.Ed.2d 643 (1974).

The burden rests upon the movant to prove that the trial court abused its discretion in refusing to set aside the plea. State v. Harris, 420 S.W.2d 325, 327 (Mo.1967). The ultimate test whether a plea should be set aside is whether it was made unintelligently and involuntarily. If an accused is misled or induced to plead guilty by mistake, misapprehension, persuasion or the holding out of hopes which prove to be false or ill-founded, he should be permitted to withdraw his plea. State v. Good, 403 S.W.2d 594, 599 (Mo.1966); State v. Parker, supra, 413 S.W.2d at 494.

Appellant contends that, since he and counsel were unaware of the facts of O’Connor’s corroborating evidence that he was suffering from withdrawal symptoms at the time he made a statement, the unawareness of such facts constitutes ineffective assistance of counsel and renders the subsequent plea of guilty unintelligent. He relies on the federal trilogy — [Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970)] and Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), as well as other federal and state decisions. In each of the trilogy, attacks were made on the guilty pleas alleged to have been induced by some violation of the Constitution. Each, however, stands for the proposition that such a plea may nevertheless be valid.

These decisions [Brady, McMann and Parker] hold that a plea of guilty entered by a counseled defendant is not unintelligible or involuntary even where there are later assertions of claimed violations of constitutional rights unless the advice of counsel was not within the range of competence demanded of attorneys in criminal cases. And this is true even though the defendant or counsel is unaware of certain matters unless it is “demonstrated” that the advice was not within the range of competence. The focus of the inquiry is on the nature of any advice and the voluntariness of the plea, and not on the existence of an antecedent constitutional infirmity.

Under these principles we are convinced there is no abuse of discretion in overruling the appellant’s motion to withdraw his plea.

In Tollett v. Henderson, supra, which distinguished the trilogy, respondent confessed and pleaded guilty to murder. He sought habeas corpus some years later alleging that he was deprived of his constitutional rights because “Negroes had been excluded from the grand jury which indicted him.” The issue upon which the lower federal court proceeded was whether his failure to object to the indictment constituted a waiver of his constitutional rights. The Supreme Court of the United States held that:

“ . . . a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise [unknown] independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.” Tol-lett v. Henderson, supra, 93 S.Ct. at 1608. (Emphasis in original).

In effect, the court held that it was not sufficient to show a constitutional infirmity (the unconstitutionally selected grand jury), but the movant must also show that an attorney’s advice to plead guilty was such outside the range of competence demanded of attorneys in criminal cases.

In McMann, supra, the issue facing the court was whether, after conviction on a plea of guilty, a defendant is entitled to relief when it is alleged that a confession was coerced and that the coerced confession motivated the plea. The Court in McMann, supra, held that if a movant proves no more than this [the confession was in fact coerced] he is not entitled to relief. In McMann, the court dealt with a confession which is deemed crucial to the State’s case and held that a plea is an intelligent one and is not open to attack on the ground that counsel may have misjudged its admissibility.

“ . Whether a plea of guilty is unintelligent and therefore vulnerable when motivated by a confession erroneously thought admissible in evidence depends on an initial matter, not on whether a court would retrospectively consider counsel’s advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases. . . . ” McMann v. Richardson, supra, 90 S.Ct. at 1448-1449.

The thrust of these authorities, therefore, is that, while a constitutional violation, unknown to an accused, is not “waived” upon the entry of a guilty plea, independent claims relating to the deprivation of constitutional rights that occurred prior to the plea may not be raised. Only the voluntary and intelligent character of the plea may be challenged by showing that the advice the accused received from counsel is not within the standards of competence. Tollett v. Henderson, supra, 93 S.Ct. at 1608.

We cannot conclude from the facts here that counsel’s advice to plead guilty, if in fact he did so advise for the record does not clearly so indicate, was outside the range of competence demanded of attorneys in criminal cases. The ultimate test is whether the efforts and representations of the attorney have reached a level of adequacy so that an accused has been given such adequacy of representation that the plea is voluntarily and understandingly made. The burden is upon movant to show such inadequacy. The mere failure to locate O’Connor prior to the motion to suppress does not constitute ineffectiveness of counsel. There is no showing that the assistance of counsel was not “ ‘. within the range of competence demanded of attorneys in criminal cases. . . . ’ ” Tollett v. Henderson, supra, 93 S.Ct. at 1608. There is nothing in the record to indicate that appellant was not properly counseled concerning his plea of guilty.

We deal here with a guilty plea. A guilty plea represents, as stated in Tollett v. Henderson, supra, 93 S.Ct. at 1608, “. a break in the chain of events which has preceded it in the criminal process. . .” Once a guilty plea is entered, the determination of adequacy of representation of counsel becomes immaterial except to the extent that counsel’s ineffectiveness bears on the issue of voluntariness and understanding of the plea. Hall v. State, 496 S.W.2d 300, 303 (Mo.App.1973).

Neither can we conclude that the unawareness of the existence of O’Connor and the unawareness of the existence of the corroborating facts that appellant was suffering from withdrawal symptoms would have rendered any confession constitutionally inadmissible on the motion to suppress the statement or would have tipped the scales so that the trial court hearing the motion may have sustained the motion to suppress. The same trial judge heard both the motion to suppress statements and the motion to withdraw the plea. Even if O’Connor had testified at the hearing on the motion to suppress and corroborated the testimony of Nielsen, there was substantial evidence for the same trial court who heard both the motion to suppress and the motion to withdraw to overrule the motion to suppress and in effect conclude that the state- ' ment or confession was not involuntary.

This case, therefore, is distinguishable from United States v. Myers, 451 F.2d 402 (9th Cir. 1972) and Alewine v. State of Missouri, 352 F.Supp. 1190 (W.D.Mo.1972) relied upon by appellant.

In Myers it was held that where defendant was unaware of the fact that his federal sentence would not begin until his state sentence was served it was necessary for the trial court, which was aware of such fact, to inform defendant so that a plea would be voluntary.

In Alewine the court held that the defendant was entitled to a post-trial eyiden-tiary hearing on the issue of the voluntariness of a confession where the sheriff testified at trial that interrogation continued after defendant requested the service of an attorney.

Furthermore, assuming that the trial court had sustained the motion to suppress a statement concerning the killing of Mr. Besel, the inadmissibility of the confession, which may have motivated his plea of guilty, without more would not entitle appellant to relief — to withdraw his plea. McMann, supra. As in McMann, supra, a defendant who alleges that he pleaded guilty because of an inadmissible confession is not, without more, entitled to relief. State v. Grimm, 461 S.W.2d 746, 752 (Mo.1971).

The voluntariness of the plea of guilty here did not rise or fall on the absence or presence of O’Connor’s corroborative later discovered testimony about withdrawal. The plea proceeding was extensive; movant detailed the. events of the killing of his father-in-law; he was not under the influence of any foreign substances at the time of his plea; he was informed of all of his rights, the nature of the charge and the punishment which would be imposed. There were no threats or promises inducing the plea. The plea was voluntary. Baker v. State, 524 S.W.2d 144, 147 (Mo.App.1975). In determining the voluntariness and understanding with which a guilty plea is entered, the effect that the confession has on the guilty plea is only one factor among many that should be considered. Christian v. State, 509 S.W.2d 783, 784 (Mo.App.1974). Unawareness of certain facts at the time of a plea does not necessarily render the plea unintelligent or involuntary. Cf. State v. Harris, supra, 420 S.W.2d at 330; State v. Hodges, 383 S.W.2d 551, 553 (Mo.1964).

Under all the circumstances, therefore, we cannot conclude that the unawareness of O’Connor’s testimony which corroborated Nielsen’s testimony at the hearing on the motion to suppress amounted to ineffectiveness of counsel or rendered the subsequent plea of guilty unintelligent. Thus, we hold that the trial court did not err or abuse its discretion in overruling the motion to withdraw the plea of guilty. We therefore are compelled to affirm the order.

We have read the various transcripts, we have examined all the authorities relied upon by the appellant, we have made our own independent search of other authorities, and we conclude that there is no error.

The order overruling the motion to withdraw the plea of guilty is affirmed.

KELLY, P. J., and GUNN, J., concur.

      . An order overruling a motion to withdraw a plea of guilty is an appealable order. State v. White, 429 S.W.2d 277, 281 (Mo.App.1968).

      . Sometimes spelled in the various transcripts as “Leonard Beset” or “Leonard Bizzel.”

      . Throughout the proceedings there were numerous counsel representing the movant. Different counsel represented him at the motion to suppress the statement, at the trial which ended in a mistrial, at the plea of guilty, on the motion to withdraw the plea and sentence and on this appeal. The same attorney, however, represented the movant on the plea of guilty and on the motion to withdraw and sentencing. Present counsel was appointed on this appeal by the trial court.

      .Movant described a “lid” as about seventy or ninety cigarettes. Later he indicated that he smoked a total of about twenty or thirty” cigarettes (reefers).

      . At one point during the hearing on the motion, movant testified that he was questioned “from about five o’clock and then [I was] brought . . . over to the Clayton Police station . . . .”

      . Officer Ice testified that: “Well, I could not really describe him as intoxicated or high, he seemed to be glassy-eyed, however, all our questions that we asked, he responded to them. We did not have to repeat any of the questions. He seemed tobe [sic] very tried [sic], but he responded to our questions.” Detective Yar-borough testified that: “He appeared tired. I wouldn’t say his physical state was normal, but then as far as asking him his name and so forth, and so on, he responded to our questions and answered them.” When he was brought to the station the next morning, he “appeared normal.”

      . The brief for the appellant indicates that the motion to withdraw was made a week after the plea proceeding. Actually the motion was made in March, 1974.

      . He contends that, unlike most instances, the motion to withdraw the guilty plea was here made prior to sentence, so that the same standard — “to correct manifest injustice” is not applicable to a motion to withdraw prior to sentencing. The law, he contends, favors a trial on the merits, and the State could not be prejudiced by sustaining the motion to withdraw prior to sentence.

      . Most of the decisions hold that a defendant may not withdraw his plea of guilty as a matter of right after sentence—Huffman v. State, 499 S.W.2d 565, 568 (Mo.App.1973); State v. Tyler, 440 S.W.2d 470, 472 (Mo. banc 1969); Watson v. State, 446 S.W.2d 763, 767 (Mo.1969). After sentence the plea may be withdrawn only to “correct manifest injustice.” Rule 27.25. The standard prior to sentence has not been folly articulated in this state.

        .State v. Parker, 413 S.W.2d 489, 494 (Mo. banc 1967), cert, den., 390 U.S. 906, 88 S.Ct. 823, 19 L.Ed.2d 874 (1968) — after sentence; State v. Kellar, 332 Mo. 62, 55 S.W.2d 969, 971 (1932).
      The standard after sentence is “to correct manifest injustice.” Our research fails to disclose any decisions in Missouri which articulate the standard prior to sentence. In the federal system under Rule 32, the standard is less than “manifest injustice.” The standard is that of “fair” and “just.” United States v. Barker, 168 U.S.App.D.C. 312, 514 F.2d 208, 220 (1975), cert, den., 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975).

      . “ ‘The withdrawal of a plea of guilty is not a matter of right. A motion for leave to withdraw a plea of guilty and substitute a plea of not guilty is addressed to the sound discretion of the court and should be denied if the defendant knew and understood what was being done and there were not present any circumstances of force, mistake, misapprehension, fear, inadvertence or ignorance of his rights and understanding of the consequences of his plea.’ ” Hughes v. United States, supra, 371 F.2d at 695, quoting from United States v. Ptomey, 366 F.2d 759, 760 (3rd Cir. 1966).

      . It is difficult to determine from the record which statement is being contested. Apparently there were several statements. Movant testified on the motion to suppress that he made a statement about 4:00 a. m. Officer Yarborough testified that he did not see Nielsen until the next morning and that he made a statement about noon on March 10.

      . United States v. Miller, 406 F.2d 1100 (4th Cir. 1969) [unawareness of a case pending in the Supreme Court of the United States]; Powell v. Hocker, 453 F.2d 652 (9th Cir. 1971), and United States v. Wells, 430 F.2d 225 (9th Cir. 1970).

        United States v. Miller, supra, 406 F.2d 1100, held that appellants were entitled to withdraw their pleas of guilty because at the time of the plea counsel was not aware of a decision pending in the Supreme Court which held that the privilege against self-incrimination bars prosecution under the federal firearms act. The court did not discuss the ramifications of Tol-lett, but only discussed the retroactivity of the Supreme Court decision as to whether it was applicable to the appellants.
      In United States v. Wells, supra, 430 F.2d 225, the decision hinged on the question of waiver and the court found under the principles of Brady v. United States, supra, that it could not hold as a matter of law that defendant was counseled as were the defendants in Brady, Parker and McMann.

      These decisions $re not dispositive of the precise issues presented here.

      . If a prisoner pleads guilty on the advice of counsel, he must demonstrate that the advice was not within the range of competence demanded of attorneys in criminal cases. McMann v. Richardson, supra, 90 S.Ct. at 1449.