author: HOGAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James Delbert FINGERS, Jr., Defendant-Appellant.
    No. 10728.
    Missouri Court of Appeals, Southern District, Division Two.
    July 10, 1979.
    Motion for Rehearing or Transfer Denied July 16, 1979.
    Application to Transfer Denied Sept. 11, 1979.

      Loren R. Honecker, Springfield, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Daniel F. Lyman, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   HOGAN, Judge.

A jury found defendant James Delbert Fingers, Jr., guilty of robbery in the first degree as defined and denounced by former § 560.120, RSMo 1969, V.A.M.S. The Second Offender Act, former § 556.280, V.A.M.S., was found to be applicable, and defendant’s punishment was fixed at imprisonment for a term of 18 years. Defendant appeals.

On February 4, 1976, about 8:00 p. m., two men came upon the premises of the Pasco Service Station in Springfield, Missouri. Robert Havens was the attendant on duty at the station. Havens was in the process of replacing cigarettes in a vending machine, heard the men enter, “turned thinking they were just a customer” and confronted the two men, one of whom told Havens “that he wanted the money or he’d kill [Havens].” Havens described the two men, one of whom (defendant) was “male, Caucasian, had hair . . . down toward the shoulders.” This man was about 5'9" tall, weighed between 160 and 170 pounds, and appeared to be “around” 25, 27 years of age, “somewhere around in there.” The other man, or boy, was also a male Caucasian, “blond, light-colored hair,” “about five feet tall, about [13] or [14] years-old.” Havens immediately recognized the older man as a person who attempted to rob the service station previously.

Havens refused the robbers’ demand. He attempted to leave the premises, but was seized and restrained by the defendant. The defendant told his accomplice, who he addressed as “Rodney,” to “find something to hit [Havens] with”; Rodney found the “handle to a squeegee [used] to clean windows.” Rodney struck Havens a number of times with the squeegee handle; the robbers noted that their attack was ineffectual, and Rodney was ordered “. • .to find something else to stab [Havens] with.” Rodney found a screwdriver and attempted to stab Havens while defendant held Havens “[i]n a bear hug.” Rodney was instructed to find “something to tie [Havens] up with”; Havens’ feet were bound with a length of garden hose, and finally, in Havens’ words, “[t]hey held me down . . and the defendant had the screwdriver holding it at my neck saying, ‘Give me the keys or I’ll run this in.’ I said, ‘O.K.’ ”

Havens told the defendant where the cash receipts were, “exactly,” and defendant “went in and got it” while Rodney sat on Havens and held the screwdriver to Havens’ neck. Defendant and Rodney took $500 to $600 belonging to the service station and Havens’ wallet which contained about $74.

The State also had evidence from David Oetting, manager of the service station. Oetting testified that attendants at the station normally kept cash receipts in their wallets until an unwieldy amount accumulated, at which time the receipts were secreted at locations selected by the individual attendants. Oetting further testified that defendant had worked for him at the Pasco Service Station from September 1974 until February 1975, and was familiar with Oetting’s method of handling cash.

Two points are advanced on appeal. They are: 1) that the trial court erred in failing to suppress and in receiving State’s exhibit 7 — an everyday white plastic hard hat — because the exhibit was the product of an unlawful search and seizure, and 2) that the trial court abused its discretion in receiving evidence of defendant’s attempt to rob the Pasco station in December 1975, because the prejudicial effect of such evidence far outweighed its probative value. We review only the allegations of error briefed on appeal. Rule 28.02, V.A.M.R.

The first assignment of error is overstated, but requires some discussion. There was evidence that in December 1975, the defendant had attempted to rob the Pasco station. Havens recalled the incident. He remembered that the would-be robber had worn a white uniform and a white hard hat. Havens struggled with the aspiring robber, who finally fled. In flight, the man dropped his hard hat, but “turned and picked it up like he needed it for work.” When the defendant appeared on the date of the completed robbery, Havens recognized him as the person who had attempted to rob him earlier. Specifically, Havens remembered the defendant’s concern for his hard hat.

One Brinkman, an experienced police officer, testified at the suppression hearing. Brinkman had investigated both the attempted robbery and the completed robbery. When the attempted robbery occurred, Brinkman . had the suspect’s description . . . and part of the description [was] that the suspect was wearing a white, plastic helmet.” Brink-man also discussed the identity of the robbers with Havens after the completed offense was committed. Havens then advised Brinkman that two men had participated in the completed offense. One of the men, the older of the two, was the same man who had attempted to rob Havens in December 1975. The older man had addressed his abettor as “Rodney.” Havens described Rodney; Brinkman associated the description with one Rodney Rogers.

A day or two after the completed robbery, Brinkman took Rodney in custody at the Rogers residence. A “mustard-gold” colored station wagon was observed parked in the driveway of the Rogers house. The investigating officers were told the station wagon belonged to a member of the Rogers family. The license tag on the vehicle did not “check to” the defendant.

Thereafter defendant was identified from a “mug shot” and officers took him in custody at an automobile auction lot in south Springfield. After the officers took the defendant to jail, they returned to the auction lot. There they found the “mustard-gold” colored station wagon. A white plastic hard hat was detected, inevitably, “In the rear portion [sic] of the vehicle that was open to public view.’’ (Emphasis added). A photograph taken prior to the search — it is before us as State’s exhibit 1 — shows that part of the hard hat was visible to the officers standing outside the vehicle before it was searched. Another of the photographs taken by officers before they searched the station wagon shows that the vehicle was parked on an asphalt parking lot. A sign immediately behind the station wagon bears the legend “166 Auto Auction. 6000 cars wholesale every day.” We should also note that the officers did not, at the time, know who owned the vehicle, but it was not locked. The officers had no search warrant. Brinkman entered the vehicle and seized the hard hat.

There is doubt that the assignment of Fourth Amendment error was properly preserved for review. A trial court’s ruling on a preliminary motion to suppress is interlocutory, and therefore our inquiry is whether the hard hat was admissible when it was received in evidence. State v. Howell, 524 S.W.2d 11, 19[6] (Mo. banc 1975). It is settled, of course, that a timely objection is required to preserve objections for review even when they have a constitutional basis. State v. Tyler, 454 S.W.2d 564, 567[2] (Mo.1970). When the hard hat was offered in evidence at the trial, the court inquired of defendant’s counsel: “Any objection to State’s Exhibit 7?” Counsel contented himself with this reply: “As to the State’s Exhibit 7, the white hard hat, objection on the basis of improper foundation and inability of the witness [Havens] to identify the helmet, and further objection that I announced earlier — relevancy and probative value.” The trial court specifically stated: “That objection is overruled.” (Our emphasis). Inasmuch as this appeal is defendant’s only appeal of constitutional right, Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), we shall, in the exercise of discretion, examine his point as an assignment of plain error. Rule 27.20(c), Y.A.M.R.

In his brief, the defendant seeks to condemn the seizure of the hard hat as a violation of the “plain view” doctrine. The plain view principle has limitations; it justifies some warrantless searches and seizures if the officers are lawfully in the place from which the evidence is seen, the discovery is inadvertent, and the item or items seized are immediately recognizable as evidence. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Collett, 542 S.W.2d 783, 786 (Mo. banc 1976). If Coolidge were the only precedent construing the Fourth Amendment, we should have trouble with the requirement that the items seized be immediately recognizable as evidence. Officer Brinkman and his companions could see only the top of the white hard hat. The anonymity of the top of any particular white, plastic hard hat is obvious, and such markings and characteristics as indicate exhibit 7 might have been tied to the defendant appear only upon inspecting the interior of the hat, which was concealed when it was seized.

As it is, the Coolidge decision does not state all the law concerning the Fourth Amendment, and that case, while it is undoubtedly relevant, is not controlling here. The present state of the law dealing with vehicular searches was admirably put in general terms in United States v. Helberg, 565 F.2d 993, 996[1][2] (8th Cir. 1977):

“In enforcing the Fourth Amendment’s prohibition against unreasonable searches and seizures, the Supreme Court has insisted upon probable cause as a minimum requirement for a reasonable search. The Court has also generally required that a search be preceded by the judgment of a magistrate on the probable cause issue and by the issuance of a warrant. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). . [hjowever, an exception to the warrant requirement has developed around automobiles. This exception [is] based on two distinct vehicular characteristics: mobility, which may create exigent circumstances rendering a warrant impractical, and the diminished expectation of privacy associated with the automobile. [Citations omitted].
Nevertheless, ‘[a]utomobile or no automobile, there must be probable cause for the search.’ Almeida-Sanchez v. United States, 413 U.S. 266, 269, 93 S.Ct. 2535, 2537-38, 37 L.Ed.2d 596 (1973).”

General contemporary commentary upon vehicular searches and seizures mirrors the Eighth Circuit’s view. See Project, Eighth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals, 67 Geo.L.J. 323, 342-344 and nn. 144-151 (1978). Here, we have no difficulty whatever in finding both a diminished expectation of privacy and the exigent circumstances required for a warrant-less search. The “mustard-gold” colored station wagon was not locked nor parked on private premises nor even in a reserved parking slot. It was parked on a lot accessible to many persons. Neither do we have difficulty in finding exigent circumstances. The officers were not sure who owned the car; they had seen it at the abettor’s residence earlier but were unable to discover registration records linking it directly to the defendant or his abettor, and the vehicle was parked on an automobile auction lot which publicly advertised the sale of 6000 automobiles daily. There was, from the officers’ standpoint, every likelihood of movement of the vehicle.

Did the officers have probable cause to search the station wagon? We believe the record justifies a finding they did. At the suppression hearing, officer Brinkman testified that the vehicle was the same color as the station wagon seen in Rodney’s driveway; other distinctive markings also appeared and were noted. It was reasonable to suppose it had been used by the defendant or Rodney in the commission of the robbery. A casual glance showed the vehicle contained a white hard hat, and the officers, having obtained a positive identification of the defendant as the robber and information that one of the participants had a hard hat which he apparently used in his work, had probable cause to search. We conclude and hold that there was no plain error in admitting the hard hat on the grounds urged here.

The defendant’s other point is that the trial court erred in admitting evidence of the defendant’s attempted robbery because such evidence amounted to an attempt to prove the commission of the completed robbery by proof of a separate, distinct offense. Defendant readily concedes such evidence is competent to prove the specific crime if it tends to establish motive, intent, common scheme or plan, or identity of the person charged with the commission of the crime on trial. State v. Mitchell, 491 S.W.2d 292, 295[1] (Mo. banc 1973). We do not agree with the State’s contention that the defendant’s identity was the crucial issue on trial, but it was an issue. Rodney’s identification of the defendant as the perpetrator of the robbery was most equivocal, and by trial time, the defendant had let his hair grow long and had gained weight. Consequently, his appearance on trial was somewhat different from his appearance in the “mug shot” from which he was identified. The point is briefed only as an abuse of discretion. An abuse of judicial discretion is an act which is untenable, clearly against reason and which works an injustice. State v. Stubenrouch, 499 S.W.2d 824, 826[6] (Mo.App.1973). The trial court’s admission of evidence of the attempted robbery was not, in the detailed circumstances, such an act.

We find no prejudicial error in any respect briefed or argued in this court. Accordingly, the judgment is affirmed.

BILLINGS, C. J., concurs.

YEAMAN, CONLEY and RAGLAND, Special Judges, concur.

      . Which read, in pertinent part: “[E]very person . . . who shall be convicted of feloni-ously taking the property of another from the person of his . servant, clerk or agent, in charge thereof and against the will of such . servant, clerk or agent by violence to the person of such . . servant, clerk or agent, . . . shall be adjudged guilty of robbery in the first degree.” Former § 560.135, RSMo 1969, V.A.M.S., provided that the punishment for first-degree robbery not involving use of a dangerous and deadly weapon was imprisonment for not less than five years in the penitentiary.

      . The “squeegee handle,” in evidence here as State’s exhibit 1, is essentially a black plastic cylinder about 16" long. It is threaded at one end; the other end is molded into a grip resembling the grip of an ordinary square-bar screwdriver. The circumference of the grip is about 4"; that of the shaft is about 3". The gross weight of the “squeegee handle” is 3½ oz.

      . Many of the recently reported cases deal with the seizure of “contraband,” i. e., drugs or weapons. Some precedents strongly indicate, however, that given the existence of probable cause, the officers may seize other items linking the defendant to the offense charged. See, e. g., Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975) (seizure of checks similar to those defendant had attempted to pass); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (seizable items include clothing).


source: Caselaw Access Project

author: ALDEN A. STOCKARD, Special Judge.

license: Public Domain

text:
    In re K. S. R., a minor, and S. L. M., a minor, Appellants.
    Nos. 39020, 39021.
    Missouri Court of Appeals, Eastern District, Division Four.
    July 10, 1979.
    Lester W. Duggan, Jr., St. Charles, for appellants.
    Thomas A. Palumbo, Asst. Pros. Atty., St. Charles, for respondent/Juvenile Court.
   ALDEN A. STOCKARD, Special Judge.

These two consolidated appeals are from orders of the juvenile court entered on February 10, 1977 finding that appellants, S.L.M. and K.S.R.,⅛ each came within the jurisdiction of the juvenile court under the provisions of § 211.031.1(2), in that each did steal five rings from the Venture Department Store located in St. Charles County.

On October 22, 1976, two juvenile girls, S.L.M., age 12, and K.S.R., age 14, entered the Venture Store accompanied by the mother and sister of S.L.M. The two juveniles went to the jewelry department to look at rings, and each girl selected five rings, each ring having a sale price of $1.88, from a “self-serving type of device.” Each ring had a paper tag which identified it as a ring offered for sale by the Venture Store. Each girl placed the five rings, with the tag attached, on the index finger of her left hand. They testified that they then went in search of the mother of S.L.M. to find out which rings she preferred and to obtain permission to purchase three of the rings, and that they had no intention to steal any of the rings. K.S.R. had approximately nine dollars with her and S.L.M. had twenty dollars.

The girls went first to the “domestic department” where rugs, pillows, blankets, curtains and like merchandise were sold, but the mother of S.L.M. was not there. While in that department they looked briefly at sewing kits, and S.L.M. showed K.S.R. a pillow that a cousin had received as a wedding present. At all times while the girls were in the domestic department the rings were on the index finger of each girl with the rings and tags clearly visible. They then went to the phonograph record department, and were there about two minutes. While there the girls removed the rings from their fingers and held them in their hands. S.L.M. testified that she did so because the “butterfly” ring was cutting her finger. They then went to the ladies restroom because S.L.M. had what K.S.R. referred to as an emergency; she was menstruating. The restroom was inside the store area and was for the convenience of the customers. It was adjoining a snack-bar, and to get to either the restroom or snack-bar it was necessary to pass some cash registers. Although there were two cash registers in the jewelry department, it was not required that purchased jewelry be paid for there. The customer had the option to pay for the jewelry at the jewelry department, or to carry the items (perhaps while shopping for items in other departments) to the cash registers in the main isle near the front door. There were no signs or notices that merchandise not yet paid for should not be taken into the restroom.

When the girls were in the domestic department they were observed by Rosalie Mason, a store detective who was in a “security blind.” She saw that they each had “several rings” on the index finger of her left hand, and that the rings were “tagged with our tags.” Mrs. Mason notified a Miss Smith who “continued surveillance from the floor.” She then left the security blind and the two continued “surveillance together.” Mrs. Mason testified that she observed the girls go to the record department where they “took the rings from their fingers and placed them in the left palm hand.” She stated that both girls had “butterfly sleeves” which were “large flowing sleeves;” that they had shoulder strap purses, and “had the rings in their left hand * * * and underneath the sleeve of their top.” She stated that she (who was following behind the girls) could not see the rings when the girls passed the cash registers, and she added that the reason was that while in the record department “they palmed them in their hands.” At no time did the girls remove the tags or place the rings in a pocket (they were wearing jeans with pockets) or in their purse. As soon as the girls entered the restroom Mrs. Mason and Miss Smith immediately followed, and then when they were facing the girls the rings were in full view. Mrs. Mason and Miss Smith identified themselves and told the girls they wanted “to talk about some merchandise that they failed to pay for,” and the girls were taken to the security office. After some evasion on the part of Mrs. Mason she admitted that she searched the girls but found nothing in their clothing or their purse that belonged to the Venture Store.

At the security office Mrs. Mason told the girls that “All we [are] interested in is getting our merchandise back,” but we note that Mrs. Mason then had possession of the rings. The girls asked that the mother of S.L.M. be called, but it was approximately a half hour before she was paged and then only after an extended interrogation of the girls and threats that they would “go to jail” and that “there would be a thousand dollar fine,” and that the mother of S.L.M. would not be called “until [they] admitted to it.”

For some unexplained reason the two petitions to the juvenile court were not filed until sixty-one days after the incident, and the hearing was held twenty-one days thereafter.

Each girl was charged with a violation of § 560.156 RSMo 1969 (now repealed) in that she did “steal, take and carry away the merchandise of Venture Department Store * * * to-wit: five (5) rings with the intent then and there to steal and to permanently deprive the owner of the use thereof, and to convert the same to her own use, and without the consent of said owner * * *.” In order for the juvenile court to assume jurisdiction over either juvenile it is required that proof of the alleged offense be established beyond a reasonable doubt. In the Matter of Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). See also, In re Fisher, 468 S.W.2d 198 (Mo.1971).

The statute with which the juveniles were charged with having violated defines the term “steal” as follows: “to appropriate by exercising dominion over property in a manner inconsistent with the rights of the owner, either by taking, obtaining, using, transferring, concealing or retaining possession of his property.”

In this case there is no evidence from which it can reasonably be inferred that the juveniles wrongfully took the rings. The rings were taken from a “self-serving type of device,” and thereafter the rings were not taken to any place where pursuant to the store policy it was not permissible to do so before making payment. The rings were never placed in a pocket or a purse. Neither were they placed in a shopping bag as in State v. Ahern, 546 S.W.2d 20 (Mo.App.1976), nor in a satchel as in State v. Van, 543 S.W.2d 827 (Mo.App.1976), in order to facilitate their removal from the store. Also, the girls did not attempt to leave the store with the rings. See State v. Ahern, supra. The paper tag on each ring which identified the ring as being an item offered for sale by the Venture store was never removed. Although Mrs. Mason stated she could not see the rings when the girls were on the way to the restroom, she was behind the girls, and they had the rings in their hand, the only place items as small as a ring could be carried without intentionally concealing them. The only reasonable inference, even from Mrs. Mason’s testimony, is that the rings were visible to those who wanted to see them with the tags attached at all times, and there is no evidence from which it reasonably could be inferred that there was an intentional concealment with intent to steal. This is a circumstantial evidence case in that a dominion over the rings in a manner inconsistent with the rights of the owner must be inferred from the facts, but that inference must be reasonable. In order to be a reasonable inference authorizing a finding beyond a reasonable doubt that the charged offense was committed, it must be “consistent with the guilt of [the person charged] and inconsistent with any reasonable theory of his innocence.” State v. Lasley, 583 S.W.2d 511 (Mo. banc 1979). The evidence in this ease falls far short of this minimum standard.

If it could be said that in this case the evidence establishes beyond a reasonable doubt that these two girls were guilty of stealing the rings, then every customer of the Venture store who exercises the option of selecting various items from different departments and carrying those first selected with him while selecting the other items is also guilty of stealing. When the customer exercises that option the dominion exercised over the property is with the consent of the owner of the property, and it cannot constitute a wrongful taking.

The judgments are reversed and each cause is remanded for the entry of appropriate orders.

DOWD, P. J., and SNYDER, J., concur.

      . We attribute no significance to this conclu-sionary remark. The evidence is that each girl placed the rings in her hand, and it does not justify the comment as to “palming” with its sinister implication.


author: STEPHAN, Presiding Judge.

text:
    CITY OF JENNINGS, Plaintiff-Appellant, v. Barbara TURNER, Defendant-Respondent.
    No. 39232.
    Missouri Court of Appeals, Eastern District, Division Two.
    July 10, 1979.

      Lloyd E. Eaker, Clayton, for plaintiff-appellant.
    Donald L. Wolff, Paul J. Passanante, Clayton, for defendant-respondent.
   STEPHAN, Presiding Judge.

The City of Jennings (hereinafter city) appeals from an order of the trial court declaring the city’s Ordinance No. 1158 unconstitutional and dismissing the city’s petition for injunctive relief and damages. We dismiss the appeal.

On November 22, 1976, the city filed a petition alleging that defendants, Carol Ann Schneider and Beverly D. Hinchcliff, were operators of massage establishments in the City of Jennings. The petition further stated that the city had in force and effect several ordinances regulating the operation of massage parlors, to wit, Ordinances No. 1117, 1122 and 1158, which required operators to obtain special permits and pay license fees. The petition further alleged that defendants had not applied for permits nor paid the license fees. The city sought to enjoin the defendants from operating their parlors until such time as they complied with the ordinances. Further, the city sought to collect damages in the amount of the licensing fees which were allegedly due.

The cause was submitted to the trial court on the pleadings, briefs and arguments of counsel. In its Findings, Order and Decree, the trial court declared paragraph 790.100 of Ordinance No. 1158 void and unconstitutional as a violation of the Equal Protection Clause of the United States Constitution and Article I, Section 2 of the Missouri Constitution and then dismissed the petition.

Appellant’s sole point relied on reads as follows:

“The court committed error in not entering a judgment in favor of the appellant because the law showed that Bill No. 1186, Ordinance No. 1158, Paragraph 790.100 did not violate the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution or Article I, Section 2 of the Missouri Constitution.” Initially, we must note that appellant’s

sole point fails to meet the requirements of Rule 84.04(d) which mandates, in part:

“The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous .
Setting out only abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this rule.”

Appellant’s point states nothing more than the legal conclusion that “the law showed” that the ordinance was constitutional. As such, the appellant has failed to comply with the portion of Rule 84.04(d) quoted above. See Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978). See generally Fair-bank and Weier, “Why Write a Defective Brief? — Give Your Client a Chance on Appeal”, 33 J.Mo.B. 79 (1977).

Even if we were to overlook this non-compliance and search the argument section of appellant’s brief so as to construct the constitutional issue which the city attempts to raise, we could not decide this issue because the transcript is grossly inadequate.

None of the ordinances referred to in the petition is set forth in the transcript. We cannot judicially notice municipal ordinances, nor can we consider any matters not included in the approved transcript. State ex rel. Freeze v. City of Cape Girardeau, 523 S.W.2d 123, 127 (Mo.App.1975). All of the ordinances were attached to the petition as exhibits (but not reproduced in the transcript approved by counsel) and the city has included a copy of Ordinance No. 1158 as an appendix to its brief. Even if we were to hold this to be an acceptable method of bringing the ordinance before this court, we would still be seriously hampered in our review efforts for the reason that we have no access whatsoever to Ordinances No. 1117 and 1122. According to the petition, these ordinances continued in effect after the enactment of 1158 and also provided for the licensing and regulation of massage establishments. Indeed, the portion of the prayer in each count which seeks a money judgment appears to have been computed on the basis of the annual $750 licensing fee required by Ordinance No. 1117. Under such circumstances, it would be inappropriate for us to attempt to review one ordinance out of the context of related enactments. Cf. Purdy v. Foreman, 547 S.W.2d 889, 891-892 (Mo.App.1977).

Finally, in examining the transcript we have noticed a reference to a “First Amended Petition for Injunctive Relief, Declaratory Judgment and For Damages.” The transcript before us contains no such document, only a “Petition for Injunctive Relief and for Damages.” It may be that the petition in the transcript is an abandoned pleading included, contrary to the directive of Rule 81.14(b); it may be that the reference to a “First Amended Petition” is simply a clerical error. This court should not be required to conduct an investigation to determine which hypothesis is correct.

We are cognizant of the principle that whenever possible we should review a case on the merits. State ex rel. State Highway Commission v. Hill, 373 S.W.2d 666, 668[1, 2] (Mo.App.1963). However, when we have no adequate record on which to base our review, we have no other choice but to dismiss the appeal. City of St. Clair v. Cash, 579 S.W.2d 763 (Mo.App.1979).

Appeal dismissed.

KELLY and STEWART, JJ., concur.

      . On December 30, 1976, the court sustained Ann Schneider. n order to substitute Barbara Turner for Carol


author: CRIST, Judge.

text:
    STATE of Missouri, Respondent, v. Jack Farris BATTLES, Appellant.
    No. 40700.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 10, 1979.

      Ronald E. Pedigo, Public Defender, Farmington, for appellant.
    Gary E. Stevenson, Pros. Atty., James E. Pennoyer, Farmington, John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   CRIST, Judge.

Jail break and escape conviction.

The defendant was convicted by the trial court without a jury of breaking out of St. Francois County jail and escaping from lawful custody before conviction. The authorities were holding the defendant for alleged second-degree burglary and stealing. The trial court assessed punishment at two years in the penitentiary.

Defendant first claims he was denied his Miranda rights as a result of the trial court admitting into evidence several' incriminating statements made by the defendant after his recapture. The defendant escaped to Fort Lauderdale, Florida, where he was apprehended by Florida police. Two Missouri deputy sheriffs took custody of him there and immediately advised him of his rights at the Fort Lauderdale police station. Later in the day, at the Fort Lauderdale airport, the defendant made the incriminating statements concerning his escape. We find no error.

The defendant made no objection at trial concerning the statements made to the deputy at the Fort Lauderdale airport. Accordingly, he did not preserve the question for review. State v. Price, 422 S.W.2d 286, 289[3] (Mo.1967).

In addition to this, the deputy gave the defendant his Miranda warnings. The mere lapse of time between the receipt of the Miranda warnings and the giving of the incriminating statement does not require exclusion of the evidence. Miller v. United States, 396 F.2d 492, 495-96[3-4] (8th Cir. 1968), cert. denied, 393 U.S. 1031, 89 S.Ct. 643, 21 L.Ed.2d 574 (1969); State v. McLallen, 522 S.W.2d 1, 4[4] (Mo.App.1975).

Defendant next complains that he had ineffective assistance of counsel in that his counsel waived a jury trial. The point was not preserved in defendant’s motion for a new trial, therefore, we review under Rule 27.20(c). Under the plain error rule, the appellant has the burden of showing the error resulted in manifest injustice. State v. Richards, 536 S.W.2d 779, 788[13] (Mo. App.1976). This, defendant has failed to do. Indeed, we can only guess as to whether defendant would have fared any better with a jury! There is nothing in the record to so indicate. We cannot conclude that it was manifestly unfair that the judge below sit with a jury. Accordingly, we rule this point against the defendant.

Defendant next complains that his affirmative defense of necessity to escape by reason of illness and mistreatment was not properly considered. Defendant testified that he was sick, believed he had hepatitis, was puking, was denied the use of the telephone, was threatened by the jailer, was not allowed to see a doctor, received no medication, and was fearful of his safety in the jail. Generally, conditions of confinement do not justify escape and cannot be used as a defense. State v. King, 372 S.W.2d 857, 859[6] (Mo.1963). We rule this point against defendant.

Defendant last complains about the prosecution’s waiving the opening portion of the state’s closing argument and then making a short argument subsequent to the defendant’s pro se closing argument. The defendant failed to object and therefore this point has not been preserved for appellate review. We feel the defendant suffered no manifest injustice. The trial court has great latitude in controlling oral argument in a case. State v. Sykes, 559 S.W.2d 643, 645[5] (Mo.App.1977). And although the prosecution should have made an opening final argument, State v. Hale, 371 S.W.2d 249, 255-56[12-16] (Mo.1963); Rule 26.02(7); MAI-CR 2.68; the defendant was not prejudiced since the closing argument of the state addressed the same points covered by the defendant’s closing argument. State v. Bailey, 526 S.W.2d 40, 41-42[1] (Mo.App.1975). This was a court tried case and there was no prejudice to the defendant whether he was first or second.

The judgment is affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: GREENE, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Michael Ray CARTER, Defendant-Appellant.
    No. 10841.
    Missouri Court of Appeals, Southern District, Division One.
    July 17, 1979.
    Motion for Rehearing or to Transfer to Supreme Court Denied Aug. 1, 1979.

      John D. Aschroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    David Robards, Joplin, for defendant-appellant.
   GREENE, Judge.

On October 4, 1977, defendant Michael Ray Carter was convicted of the crime of ■murder in the second degree (§ 559.020 ) and thereafter was sentenced to life imprisonment in accordance with the jury verdict. Defendant appeals the judgment and sentence of the trial court.

The amended information filed in the case alleged that defendant willfully, pre-meditatedly, and with malice aforethought killed Billy Joe Kralicek by beating him to death with a metal mop wringer. Defendant entered pleas of not guilty and not guilty by reason of mental disease or defect to the charge. At time of trial, defense counsel, in his opening statement, said that his defense was two-pronged, with the first defense being insufficient evidence by the state to show an intentional killing, and the second being that defendant, at the time of the killing, was suffering from a mental disease or defect excluding responsibility.

The state’s evidence established by at least four witnesses that defendant, on May 25, 1976, struck Kralicek in the head a number of times with a heavy metal mop wringer while the two were cellmates in the Jasper County jail. The force and frequency of the blows were such that the head of Kralicek was battered beyond recognition. In fact, it was necessary to use jail records, including a description of tatoos on the victim’s body, to identify him. The state’s evidence made a submissible case of second degree murder. Once a prima facie case of conventional second degree murder is made out, it is the jury’s function to determine whether the killing was intentional, State v. Bolden, 494 S.W.2d 61, 65 (Mo.1973), and committed without provocation, State v. Stapleton, 518 S.W.2d 292, 299-300 (Mo. banc 1975).

Defendant’s evidence sought to bolster his defenses of not guilty by reason of mental disease or defect excluding responsibility, and lack of criminal intent to commit second degree murder. Several witnesses testified to bizarre behavior of defendant prior to the killing. The witnesses stated that defendant told them he was under the direct control of a communist brain wave transmitter, that defendant quoted from the book of Revelation, and that he thought he was the new Christ. During his attack on Kralicek, defendant made statements like “going around the merry-go-around”, which did not make any sense to the witnesses, and about having to kill the devil.

There was no testimony in defendant’s case relative to self-defense, or provocation, except for an exchange, on cross-examination, between the prosecuting attorney and defense witness Dr. Robert Turfboer. Turfboer was a psychiatrist who had examined defendant for the purpose of giving an opinion concerning his mental condition. Dr. Turfboer testified that, in his opinion, defendant was suffering from a mental disease or defect, known as toxic psychosis, on the night of May 25, 1976, when he killed Billy Joe Kralicek. He further testified that such mental disease or defect prevented defendant from appreciating the nature or quality of his conduct and made him unable to conform such conduct to the requirements of the law. He also testified that such mental disease or defect prevented defendant from intending to kill Krali-cek.

On cross-examination, the following exchange occurred between the prosecuting attorney and Dr. Turfboer.

“CROSS EXAMINATION BY MR. EL-LISTON: Q. Doctor, prior to you making all these diagnoses and statements here in court, you had benefit of Fulton Hospital records which are Defendant’s Exhibits ‘A’, did you not, in fact, that’s your copy?
A. This is the first one, yes.
Q. Were you aware that Mike originally in his statement said that this guy was coming at him with a knife so he had to kill him with the mop wringer in self defense?
A. Yes, he has said so.”

At the close of all the evidence, the trial judge gave instructions in writing to the jury. The instructions that are pertinent to this appeal are Instruction No. 4 (second degree murder verdict director — MAI-CR 6.06, as modified by 2.30 and 2.05), No. 5 (converse on issue of intent, which was an element of second degree murder — MAI-CR 3.02), and No. 6 (manslaughter verdict director — MAI-CR 6.08, as modified by 2.30).

Instruction No. 4, as given, read as follows: “If you find and believe from the evidence beyond a reasonable doubt:

First, that on the 25th day of May, 1976, in the City of Carthage, County of Jasper, State of Missouri, the defendant caused the death of Billy Joe Kralicek by striking him, and
Second, that the defendant intended to takee (sic) the life of Billy Joe Kralicek,
then you will find the defendant guilty of murder in the second degree, unless you find and believe from the greater weight of the evidence that the defendant is not guilty by reason of mental disease or defect excluding responsibility as submitted in Instruction No. 8.
If you do find the defendant guilty of murder in the second degree you will fix his punishment at imprisonment by the Department of Corrections for a term fixed by you, but not less than ten years nor more than life imprisonment.”

This instruction omitted the following paragraph, which is an integral part of MAI-CR 6.06.

Third, that the defendant did not do so in (anger) (fear) (agitation) suddenly provoked by the unexpected acts or conduct of [name of victim].

The court also refused Instruction No. A, offered by defendant, which reads as follows:

“If the evidence of defendant’s mental disease or defect in this case leaves in your mind a reasonable doubt that Michael Ray Carter intended to kill Billy Joe Kralicek, you will find the defendant not guilty of murder in the second degree.”

No instruction was given on justifiable homicide, and none was requested. The transcript does not indicate whether defendant objected, at time of trial, to the instructions given by the court.

After the verdict, defendant timely filed a motion for new trial, which was overruled. Defendant then appealed, raising three points, which are 1) that the trial court committed reversible plain error in failing to instruct the jury that to convict defendant of murder in the second degree, they must find that he was not suddenly provoked by the victim’s unexpected acts or conduct; 2) that the trial court committed reversible plain error in failing to instruct the jury on justifiable homicide when there was evidence in the record that defendant had acted in self-defense; and, 3) that the trial court erred in refusing to instruct the jury that evidence of defendant’s mental disease or defect could be considered in determining whether the defendant intended to kill the victim.

FAILURE TO INSTRUCT ON THE ELEMENT OF PROVOCATION

Defendant, in his first assignment of error, contends that the trial court committed prejudicial error by omitting from Instruction No. 4 MAI-CR 6.06) a necessary element on which the state had the burden of proof, namely “Third, that the defendant did not do so in (anger) (fear) (agitation) suddenly provoked by the unexpected acts or conduct of [name of victim]”. Defendant did not raise this issue in his motion for new trial and does not state in the points relied on wherein and why the instruction is prejudicially erroneous, as is required by rule 84.04(d). He has not preserved the assignment for review. State v. Miceli, 549 S.W.2d 113, 117 (Mo.App.1977); State v. Grebe, 512 S.W.2d 409, 410 (Mo.App.1974). We are requested to review the point as plain error, rule 27.20(c), and we elect to do so, as the omission of the paragraph in question from Instruction No. 4 was error, the prejudicial effect of which must be judicially determined. Rule 20.02(e); State v. Sykes, 559 S.W.2d 643, 646 (Mo.App.1977). Plain error review is not justified in matters involving jury instructions unless the trial court so misdirected or failed to instruct the jury on the law of the case that the misdirection or failure to instruct caused manifest injustice. State v. Merritt, 540 S.W.2d 183, 185 (Mo.App.1976). Manifest injustice is to be determined on a case-by-case basis. State v. Sanders, 541 S.W.2d 530, 533 (Mo. banc 1976).

The precise issue of the omission of the paragraph in question was presented in State v. Gotthardt, 540 S.W.2d 62, 65-67 (Mo. banc 1976). The supreme court, in a unanimous opinion, ruled that the omission of the third paragraph from a MAI-CR 6.06 instruction (Instruction No. 4 here) was prejudicial error. The court reasoned that MAI-CR 6.06 is drafted on the theory that when the jury is instructed on second degree murder and manslaughter, it is necessary to include paragraph third in the second degree murder verdict director, so that the jury can understand the difference between manslaughter and second degree murder. Gotthardt is a path from which we cannot stray. The record is silent as to whether defendant here objected to Instruction No. 4, as given, or whether he requested a correct second degree murder verdict director, but that fact is of no consequence. The trial court is obligated to instruct on the law of the case, whether requested to do so or not, State v. Harris, 313 S.W.2d 664, 671 (Mo.1958), and that duty includes the obligation to instruct correctly. State v. Webster, 230 S.W.2d 841, 842 (Mo. 1950). The adoption of MAI-CR did not change that obligation. State v. Gotthardt, supra.

Instruction No. 4, as given, was not a correct statement of the law. It required merely a finding of intentional killing to justify a second degree murder conviction. It ignored an additional legal element, lack of provocation, which is necessary in order for such a conviction to stand. The state argues that there was no evidence of lack of provocation, and, therefore, the omission of that element from Instruction No. 4 was not fatal. The same argument was made and rejected in Gotthardt. It is not necessary that direct or eye-witness evidence be introduced on the issue of lack of provocation, as the facts necessary to make such a determination may be inferred from the proven facts and circumstances in evidence. See Note on Use 3, MAI-CR 6.06, effective 9-28-75.

The deletion of paragraph third (MAI-CR 6.06) from the second degree murder verdict director (Instruction No. 4 in this case) constituted reversible plain error, as such deletion destroyed the legal distinction between second degree murder and manslaughter, thus making it impossible for the jury, on a legal basis, to differentiate between those two degrees of homicide. State v. Gotthardt, supra. See also State v. Randolph, 496 S.W.2d 257 (Mo. banc 1973) where it was held that the omission of an excusable homicide instruction in a second degree murder case constituted reversible plain error, even though the defendant did not present evidence on the issue of accidental killing, did not request an instruction on that issue, and failed to assert error, by reason of refusal of such an instruction, in his motion for new trial.

Having concluded to reverse and remand, we consider other alleged errors where it appears reasonably certain that they may recur on retrial, and which should be resolved for that reason.

JUSTIFIABLE HOMICIDE ISSUE

Evidence on this issue was introduced through the cross-examination of defense witness Turfboer. The questioning, though disjointed, seemed to show that at one time defendant had admitted to the police that he had killed Kralicek, but had done so in self-defense. Defendant’s admission on this issue was contained in a case report which had been made available to the doctor to aid him in his evaluation. The admission was not made to the doctor, but was made to the police, and introduced into evidence by the state. Under those circumstances, there was evidence of self-defense in the case, and the jury should have been instructed on that issue, whether requested or not. MAI-CR 2.40. It may well be that on retrial, the cross-examination of Dr. Turfboer will take a different turn, and the issue will not be raised.

FAILURE TO INSTRUCT THAT EVIDENCE OF DEFENDANT’S MENTAL DISEASE OR DEFECT COULD BE CONSIDERED BY THE JURY ON THE ISSUE OF INTENTIONAL KILLING

On January 1,1979, in the aftermath of State v. Anderson, 515 S.W.2d 534 (Mo. banc 1974) and § 552.030(3)(1), the supreme court approved and made effective MAI-CR2d 3.74, the text of which is as follows:

“Evidence that the defendant (had) (did not have) (had or did not have) a mental disease or defect may be considered by you in determining whether the defendant had or did not have the state of mind required of [name of offense] and set out in Instruction No.as an element of that offense.
If, after considering all of the evidence, including evidence that the defendant did or did not have a mental disease or defect, you find and believe from the evidence that the defendant engaged in the conduct submitted in Instruction No-but have a reasonable doubt that he acted [insert the mental state involved, such as ‘with the (purpose) (knowledge) submitted in that instruction’, or ‘purposely’, or ‘knowingly’, or ‘recklessly’, or ‘with intent to_’, or ‘after considering taking the life of_and reflecting upon this matter cooly and fully before doing so’], then you must find the defendant not guilty of the offense of [name of offense] as submitted in Instruction No._”

In Notes on Use 5 and 6 following MAI-CR 3.74, it is stated that diminished mental capacity is a special negative defense, (which is the position taken by defendant here), and must be given, if supported by evidence and requested in the manner provided by rule 20.02. Assuming that on retrial defendant again presents expert opinion evidence to the effect that at the time of the killing defendant, by reason of mental disease or defect, did not have the state of mind necessary to intentionally kill the victim, then MAI-CR2d 3.74 must be given. State v. Anderson, supra, at 542[9].

The judgment is reversed and the cause remanded for retrial.

FLANIGAN, C. J., and TITUS, J., concur.

PREWITT, J., not participating because not a member of the court when cause was submitted.

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1969, V.A.M.S.


text:
    Jack M. MADDEN, Plaintiff-Appellant, v. Dorothy M. MADDEN, Defendant-Respondent.
    No. 40190.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 17, 1979.
    Chester A. Love, Love, Lacks, McMahon & Schwarz, Thomas K. Edelmann, Clayton, for plaintiff-appellant.
    Francis Ruppert, Clayton, for defendant-respondent.
   CRIST, Judge.

Marriage dissolved after thirty-five years. The parties are hereafter referred to as “husband” and “wife”.

Husband complains of the division of marital property and maintenance award. We find no error.

Marital property consisted of various real and personal properties valued by the parties at approximately $100,000.00 to $110,-000.00. The most valuable asset, the home, was awarded to wife, The court awarded other interests in investment real property to husband. The court awarded to the respective parties those liquid assets and items of personal property which had already been transferred by each party to his or her ownership or possession. Remaining property still held jointly was divided, and wife was awarded the most valuable jointly held asset, some U.S. Savings bonds.

Husband maintains wife was awarded 70 percent of the marital property. Wife says she only received 62 percent thereof.

The couple had no minor children. Evidence was given showing husband’s marital misconduct and the parties’ turbulent relationship prior to seeking dissolution.

Under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), we cannot, under the law and the evidence and upon consideration of the relevant factors, disagree with the judgment of the trial court as to the division of marital property. See, In re Marriage of Burris, 557 S.W.2d 917, 918[3] (Mo.App.1977) (the wife had been awarded perhaps as much as 88 percent of the marital property). The division of the marital property must be just but need not be an equal division. D.L.L. v. M.O.L., 574 S.W.2d 481, 486[6] (Mo.App.1978) (court upheld the award of 67 percent of the property to the wife citing the husband’s misconduct and the wife’s contributions to the acquisition of the property).

As to the issue raised concerning division of marital property, we hold that the judgment of the trial court is supported by substantial evidence, is not against the weight of the evidence, and no error of law appears. An extended opinion would have no precedential value. The judgment pertaining to the division of marital property is affirmed in accordance with Rule 84.16(b). See, Dickerson v. Dickerson, 576 S.W.2d 567 (Mo.App.1979).

We are also compelled by the mandate of Murphy v. Carron, supra, to affirm the award of $750.00 monthly maintenance. Husband agrees the marital property awarded to wife would not be sufficient to provide for her support. However, he states the evidence shows she is able to support herself through appropriate employment. Section 452.335-1(2), RSMo. Supp.1973. We disagree.

Wife was 54 years of age. She had no special training or education. From 1963 until January, 1972, she performed various part-time work either as a bank teller or bookkeeper, never working more than a few days per month. At the time of trial, she was a teller at the Home Federal Savings and Loan Association, averaging 21½ to 25½ hours per week at $2.81 per hour. She had been a licensed real estate saleswoman since 1969 but had never received any income thereby. During their thirty-five year marriage, the parties had developed a rather high standard of living. Husband’s estimated gross income during the years, 1975, 1976, and 1977 averages approximately $35,500.00 per year.

Husband correctly states that wife has a duty to seek employment. Brueggemann v. Brueggemann, 551 S.W.2d 853, 858[6] (Mo. App. banc 1977). He implies she could maintain herself by working on a full-time basis in fields open to her. However, even if wife were working 40 hours per week, at her present salary of $2.81 per hour, she would have a gross income of $112.40 per week. Husband’s gross income, based upon 1975 to 1977 earnings, would be slightly less than $700.00 per week.

Something more than wife’s earnings from her employment and minimal investments is needed to provide for her reasonable needs. Maintenance was properly awarded. Sawtell v. Sawtell, 569 S.W.2d 286, 288[7] (Mo.App.1978).

Husband also complains of the amount of the maintenance awarded. He will have to pay wife approximately $175.00 per week out of his $680.00 weekly gross income. She will thus gross approximately $287.00 per week as compared to husband’s estimated gross weekly income of $500.00. We do not find the amount of the maintenance award excessive under the facts. See, Payne v. Payne, 573 S.W.2d 699 (Mo.App. 1978) (no error in maintenance award in view of husband’s greater income although, after payment of court-ordered maintenance and child support, the parties’ incomes would be approximately the same).

Considering all the relevant factors set forth in § 452.335-2, RSMo.Supp.1973, we believe the maintenance award was based upon substantial evidence.

The judgment is affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: PUDLOWSKI, Judge.

text:
    James C. EAST and Jessie M. East, Plaintiffs-Respondents, v. LANDMARK CENTRAL BANK & TRUST COMPANY, Defendant-Appellant.
    No. 40406.
    Missouri Court of Appeals, Eastern District, Division One.
    July 17, 1979.

      Frederick J. Dana, St. Louis, for defendant-appellant.
    Raymond Howard, Kenneth Singer, St. Louis, for plaintiffs-respondents.
   PUDLOWSKI, Judge.

Plaintiffs sued for conversion of their automobile. The jury returned a verdict awarding plaintiffs $5,000 actual damages and $5,000 punitive damages. Defendant appeals.

On November 81, 1970, plaintiffs James and Jessie East borrowed $4,277 from defendant Landmark Central Bank and Trust, then known as State Bank and Trust Company of Wellston, and executed an installment contract in order to purchase a 1969 Pontiac Catalina. The loan was secured by said automobile. The installment contract required plaintiffs’ automobile to be insured at all times. The contract further provided that if plaintiffs failed to insure the automobile defendant could obtain the insurance and add the cost to plaintiffs’ monthly payments. Initially the installment contract and note signed by plaintiffs called for 36 monthly payments of $117.42, due on the third of each month. Subsequently the payments increased to $131.00, then to $159.00 and finally to $202.51 because defendant bank obtained insurance and added the cost to the installment payments pursuant to tue terms of the contract.

On April 20, 1971, plaintiffs received a new installment book specifying the new monthly payments to be $202.51, due on the twenty-fifth day of the month. Upon receiving the book Mrs. East telephoned the bank and informed the manager of the installment loan division that she could not afford to pay $202.51 per month and that she desired to obtain the insurance elsewhere. At trial Mrs. East testified that the bank’s representative responded that it was very difficult for city residents to obtain insurance and that she might as well pay the $202.51. Further, Mrs. East testified that the bank officer informed her that he could not allow her to obtain insurance from another source and that if she attempted to do so he would have the car repossessed. Later the same day, after speaking with his wife, Mr. East called the bank and spoke with David L. Freund, a bank officer. Mr. Freund testified that he made the following notation concerning his conversation with Mr. East:

4/20 He phoned, advised not going to make new payments, refused to come in to discuss. Refused to discuss by phone. Said not going to pay and we should come get the car and hung up.

After his conversation with Mr. East, Mr. Freund instructed the Bi-State Repossession Agency to repossess plaintiffs’ automobile because he felt insecure about the loan. Mr. Freund justified his actions by relying on a clause of the contract which provides in pertinent part that:

if buyer fails to make any of the monthly installment payments as provided for in the note secured hereby as and when the same shall become due, or fails to perform any agreement hereof, or if secured party for reasonable cause shall deem itself insecure, all remaining installments, shall, at secured party’s option become forthwith due and payable, with or without notice, and secured party shall have and may exercise all rights on account of buyer’s default as are permitted by law, and to the extent not contrary to law secured party may without notice or demand and without legal process enter onto any premises and take possession of said collateral.

Notwithstanding defendant’s threats the repossession of the car came as a surprise to plaintiffs. The automobile was taken during the late night of April 20,1971, or early the following morning while it was parked in front of the Easts’ residence. Mr. East discovered that the car was missing on the morning of April 21, 1971, shortly after he arose for work. At the time the car was taken plaintiffs were current in the payment of the debt, having timely made 27 of the 36 payments, and the next installment was not due until April 25, 1971. The debt remaining on the note amounted to $1,540.85.

After sending plaintiffs notice of sale the defendant bank obtained a repossession title from the State of Missouri and subsequently sold the car to Thomas Pontiac, the dealership from which the Easts purchased the car, for the amount of the debt remaining plus costs.

Defendant’s first point on appeal is that the trial court erred in not granting its motion for a directed verdict because the plaintiffs failed to make a submissible ease. The bank argues: (1) conversion is defined as the unauthorized assumption and exercise of the right of ownership over the personal property of another to the exclusion of the owner’s right. Carson Union May Stern Co. v. Pennsylvania R. Co., 421 S.W.2d 540, 543 (Mo.App.1967). (2) The parties had a binding and enforceable installment contract. (3) As the bank acted under the installment contract there was no unauthorized assumption of ownership. (4) Therefore, plaintiffs failed to make a sub-missible case of conversion and the trial court erred in not granting defendant’s motion for a directed verdict. Further, defendant argues that it acted in accordance with the insecurity clause of the contract because it reasonably felt insecure and was therefore justified in repossessing the car when plaintiffs indicated that they could not afford the new monthly installments of $202.51. We do not agree. The reasonableness of defendant’s actions was a question for the jury. Sackett v. Hall, 478 S.W.2d 381, 384 (Mo.1972).

In determining whether plaintiffs made a submissible case, the evidence must be viewed in the light most favorable to plaintiffs and all evidence unfavorable to plaintiffs will be disregarded. Schneider v. Finley, 553 S.W.2d 727, 729 (Mo.App.1977). The evidence shows: Plaintiffs were not delinquent in their monthly payments and the repossession occurred four days before the next payment date. Plaintiffs made and defendant accepted 27 such payments prior to the repossession. When plaintiffs asked if they could secure insurance from another source, an alternative not prohibited by the contract, defendant’s loan manager responded that such insurance was unacceptable. Notwithstanding the bank’s reply, plaintiffs attempted, before and after the repossession, to obtain insurance. Further, plaintiffs’ car was insured at the time of repossession under a policy previously obtained through the bank. Viewing the above and all the evidence in the light most favorable to plaintiffs this was not a case where “all reasonable men, in the honest exercise of a fair, impartial judgment, would draw the same conclusion . . , ” Walton v. United States Steel Corporation, 362 S.W.2d 617, 621 (Mo.1962). Therefore it was not error to submit the case to the jury.

Defendant’s second contention is that the trial court erred by failing to grant its motion for a directed verdict because plaintiffs did not present competent evidence of actual damages. This issue was not preserved for review. Plaintiffs amended their petition to allege actual damages of $3,900.00 for the conversion of their automobile, $1,566.00 for loss of earnings and $1,340.00 for transportation expenses. Defense counsel did not object to the admission of evidence bearing upon the lost earnings and transportation expenses. Because there was no timely and specific objection defendant cannot now claim error. Wilkins v. Cash Register Service Company, 518 S.W.2d 736, 748 (Mo.App.1975). Defendant did object to plaintiff James East’s testimony concerning the value of the automobile. However, the only objection to the competency of Mr. East’s testimony was based on the premise that an expert’s opinion was required to evaluate the automobile. Defendant’s position is legally incorrect; an owner may testify to the fair market value of his automobile. Auffenberg v. Hafley, 457 S.W.2d 929, 937 (Mo. App.1970). Thus the objection was without foundation in law. Furthermore, defendant’s assignment of error is based on the trial court’s failure to direct a verdict in its favor because plaintiffs did not, allegedly, introduce competent evidence of actual damages. An examination of defendant’s motion for a directed verdict reveals it neglected to raise the issue of competent evidence to support the finding of actual damages. Therefore defendant’s second allegation of error will not be considered. Sargent v. Wekenman, 374 S.W.2d 635, 637 (Mo.App.1964).

Defendant’s third point on appeal is that the trial court erred in submitting-instruction numbers 6 and 7 which allowed the jury to award punitive damages. The fourth allegation is that the trial court erred in giving instructions number 3, the verdict director, and number 5, the damages instruction. These instructions were not set out in defendant-appellant’s brief, as required by Rule 84.04(e). This violation was the impetus for defendant’s motion to suspend Rule 84.04(e) and for defendant’s filing an appendix, well after the date the briefs were due, which contained instruction numbers 3 and 5. Similarly, plaintiffs-respondents filed a motion to dismiss, inter alia, due to defendant’s failure to submit instruction numbers 3 and 5. In reviewing defendant’s motion to suspend Rule 84.04(e) and plaintiffs’ motion to dismiss we are cognizant that Rule 84.04(e) is to be strictly enforced and applied. Cribbs v. Keystone American Service Corp., 572 S.W.2d 637 (Mo.App.1978). Rule 84.04(e) specifically provides in relevant part: “If a point relates to the giving, refusal or modification of an instruction such instruction shall be set forth in full in the argument portion of the brief.” We deem it fatal that defendant failed to properly submit instruction numbers 6, 7, 3 and 5 in its original brief. Therefore, defendant’s motion to suspend Rule 84.04(e) is hereby denied. Plaintiffs’ motion to dismiss is granted, but only insofar as the assignments of error predicated on instructions 6, 7, 3 and 5 are concerned. Thus, we need not consider defendant’s third and fourth points on appeal.

Defendant’s fifth and final contention is that the trial court erred by permitting plaintiffs to amend their petition so as to include actual damages for loss of earnings. We do not agree.

The spirit of our present rules of civil procedure is to permit amendments to pleadings “when justice so requires.” Rule 55.33(a). Further, “amendment to the pleadings to conform with the evidence are to be freely allowed where the presentation of the merits will be subserved and where the objecting party will not be prejudiced in the presentation” of his case. Prewitt v. Continental Insurance Co., 538 S.W.2d 902, 906 (Mo.App.1973). It is within the sound discretion of the trial court to grant permission to amend the pleadings. Such a decision will not be overturned on appeal unless there is an obvious and palpable abuse of discretion. S_v. W_, 514 S.W.2d 848, 854 (Mo.App.1974).

In the instant case the trial court permitted plaintiffs to amend their petition so that it alleged, inter alia, loss of earnings of $1,566.00. Defendant contends it was prejudiced by this amendment because by allowing the change, defendant did not have enough time to call a non-party witness. This non-party witness would have been knowledgeable about United States Government employee benefits. Defendant indicates that its expert would have offered evidence that plaintiff James East, a U.S. Government employee, was entitled to use sick leave time to account for his absence from work due to defendant’s taking his automobile. Apparently, defendant seeks to mitigate the damages by showing plaintiff received sick leave payments.

It was not error to allow the amendment, nor was defendant prejudiced by its inability to call the non-party witness. Assuming that plaintiff James East did receive compensation under the sick leave provision of his. employment contract the collateral source rule prohibited defendant from reducing the damage award by the compensation received by plaintiffs. The money so paid is analogous to sums paid under a policy of accident insurance, and as in such cases, the person whose tortious act caused the injury should not, by reason of said payments, be relieved of liability for earnings lost by the injured person as a result of the injury. Siems v. Englehart, 346 S.W.2d 560, 564 (Mo.App.1961).

Moreover, Rule 55.33(b) explicitly provides that issues tried with the express or implied consent of the parties are treated as if they were pled. The evidence shows defendant did not object to James East’s testimony concerning the extent of his lost earnings until well after that ground for objection became apparent. In so doing defendant failed to enter a timely and specific objection. Cheffer v. Eagle Discount Stamp Co., 348 Mo. 1023, 156 S.W.2d 591 (1941). Therefore defendant impliedly consented to the determination of the issue of lost earnings and the amendment of the pleadings was proper. Nicklas v. Lincoln Liberty Life Insurance Co., 518 S.W.2d 106 (Mo.App.1974). Judgment affirmed.

SNYDER, P. J., and SMITH, J., concur.


author: DOWD, Presiding Judge.

text:
    In re the Marriage of Fleta Mae HALLUMS Cobert, Petitioner-Appellant, v. John Fyke HALLUMS, Respondent-Appellee.
    No. 39869.
    Missouri Court of Appeals, Eastern District, Division Four.
    July 17, 1979.

      Bernard Edelman, Clayton, for petitioner-appellant.
    Richard Wolff, St. Louis, for respondent-appellee.
   DOWD, Presiding Judge.

This is an appeal from the judgment rendered by the Circuit Court of St. Louis County denying a motion to modify a 1968 divorce decree to increase child support payments. Appellant, Fleta Mae Hallums Co-bert, contends the trial court erred in not finding that her evidence sufficiently established circumstances warranting both the modification and an award of attorney’s fees.

Appellant was granted a decree of divorce in her marriage to John Fyke Hal-lums in December of 1968. Pursuant to this decree, appellant was awarded the care, custody and control of their minor child, Lisa, age twelve. In May, 1969, following an appeal from the original decree, an agreement was reached between the parties as to child support payments. Respondent was ordered to pay $270.00 a month for Lisa’s support.

On September 7, 1976, appellant filed a motion to modify to increase the child support payments to $750.00 a month. Appellant’s motion to modify the decree in this respect was predicated on the claim that there had been a change of circumstances so substantial and continuing as to make the original support payments unreasonable. Specifically, appellant contended that as Lisa had reached the age of twenty, the increased cost of living, of education (college tuition, books, etc.) and of general expenses (clothing, food, recreation) constituted a change of circumstances which rendered the original child support payments insufficient to meet her expenses.

Appellant, though employed at the time of the filing of the motion, was unemployed at the time of the hearing. She had a bank account containing approximately $3,000.00; owned stock with a total value of $4,700; owned an automobile valued at $1,000, and was co-owner of a $94,000 home encumbered by a $60,000 mortgage. The respondent, who provided a car and Blue Cross/Blue Shield medical insurance for Lisa, stipulated that he would be financially able to pay an increase in child support if the evidence justified such an increase.

At the hearing, appellant asked that the child support be increased beginning September, 1976, when the motion was filed, until Lisa graduated from college, which would be in May, 1978. However, Lisa reached age 21 in August, 1977 while the case was under submission. In Lieberman v. Lieberman, 517 S.W.2d 478 (Mo.App. 1974), a son who had reached his majority brought an action against his divorced father for payment of his college expenses. The court in affirming the dismissal of the action for failure to state a claim held that absent special circumstances a parent is under no duty to support an adult child. Applying Lieberman here, the respondent’s duty to support Lisa and defray her college expenses would have terminated when she became 21 years old in August, 1977. After a hearing on the motion, the circuit court overruled appellant’s motion to modify the decree to increase child support, and denied appellant attorney’s fees.

In her first point relied on, appellant claims that there was sufficient evidence to sustain the motion to modify the child support payments. The standards for modification, which are enumerated in § 452.370 RSMo Supp.1975, require a showing of “changed circumstances so substantial and continuing as to make the terms unreasonable.” This particular section of the Dissolution of Marriage Act was designed to impose a stricter standard in actions similar to the present case, to deter recurrent and insubstantial motions for modification. Seelig v. Seelig, 540 S.W.2d 142, 146 (Mo. App.1976). The burden is on the movant to demonstrate that the criteria of § 452.370, supra, are met. Sifers v. Sifers, 544 S.W.2d 269, 270 (Mo.App.1976).

At the hearing on the motion only the appellant testified. Her testimony regarding Lisa’s yearly expenses was as follows: $800 for college tuition; $250 for school books; $75 for parking; $960 for gasoline; $480 sorority dues; $1,488 for food; $2400 for clothes. Lisa had a part time job while attending college and earned $25.00 to $30.00 per week.

In order to procure the desired modification, it was incumbent upon appellant to prove that “changed circumstances (were) so substantial and continuing as to make the terms (original decree) unreasonable.” § 452.370 RSMo Supp.1975. Appellant was required to demonstrate that a substantial increase in expenses had occurred since the award in 1969. Plattner v. Plattner, 567 S.W.2d 139, 141 (Mo.App.1978).

This requirement is not satisfied however, by testimony as to general propositions regarding the amplifying effect of inflation on expenses. Inflationary trends and the needs of a growing child are valid reasons to grant a motion to modify a support award if appellant further demonstrates that these conditions render the original award unreasonable to support the child. Plattner, supra.

Appellant did not sustain her burden of proof. Appellant relied on varying and uncorroborated evidence. Plattner, supra. Appellant failed to demonstrate by clear and unequivocal evidence that her expenses increased substantially since the original decree. She includes in her expenses statement and testified at the hearing as to $2400 yearly for clothing expenses for Lisa but offers no further proof or verification and even states that part of the clothing is paid for by appellant and part by Lisa without specifying their proportionate amounts. Appellant testified twice concerning her food bills for Lisa; once confirming the amount stated in her expense statement and once stating a different amount. A similar inconsistency appears in the record regarding appellant’s payment of sorority dues. Such shifting and unauthenticated evidence accompanying inflation and the increasing cost of a growing child is not sufficient to demonstrate that the original award is unreasonable. We find no error in the court’s denial of appellant’s motion to modify the child support payments.

In the second prong of her first point relied on appellant alleged the trial court abused its discretion in not awarding her a reasonable sum for her attorney’s fees.

At the outset it must be noted that an award of attorney’s fees is distinct from a child support award, and the authority of a court to award attorney’s fees is not an incident of a child support award. Dyche v. Dyche, 570 S.W.2d 293, 296 (Mo. banc 1978). The applicable statute governing the award of attorney’s fees in proceedings under the Dissolution of Marriage Act is § 452.355 RSMo Supp.1975. This statute requires a consideration of “all relevant factors including the financial resources of both parties”. The requirements set forth in § 452.355 supra, have been interpreted two ways.

The first interpretation requires that the evidence establish that the wife lacks sufficient means to pay the costs of litigation. A need to have the husband finance the expenses of the litigation must be shown. Ortmann v. Ortmann, 547 S.W.2d 226, 231 (Mo.App.1977). Although the statute refers to the financial capabilities of “both parties”, courts have focused their inquiry on whether the wife has sufficient means to bring the action on her own. Ortmann, supra, 231.

An application of this interpretation to the present case reveals that appellant has failed to present evidence to establish her need to have the litigation expenses borne by the respondent. There is no demonstration of need on the part of the appellant in the record. In fact, appellant’s financial statement of April 12,1977 suggests no need to require the respondent to finance the litigation. The statement indicates that the appellant owned $3,000 in a bank account and $4,700 in stock. These assets, apart from appellant’s equity in her home, would be sufficient to pay $700 in legal expenses. Under this analysis, appellant would not prevail in her request for attorney’s fees.

The second interpretation recognizes that the trial court is vested with sound discretion in making an award of attorney’s fees and in the exercise of this power consideration should be given to the wife’s ability to pay. In re Ebinger, 573 S.W.2d 738, 742 (Mo.App.1978). The statute (§ 452.355) requires the trial court to consider among other relevant factors the “financial resources of both parties”.

From an examination of the record we are convinced that the trial court did not abuse its discretion in denying appellant attorney’s fees.

In her second point relied on, appellant contends the trial court erred in failing to award her the requested increase in child support payments effective as of the date of the filing of the motion to modify. Had appellant demonstrated the requisite need, the effective date of the decree following the filing of the motion, would be a matter within the discretion of the trial court. Brown v. Brown, 537 S.W.2d 434, 437 (Mo. App.1976). As appellant did not sustain her burden on the issue of changed circumstances, we do not reach this point. Point two is ruled against appellant.

Judgment affirmed.

CRIST and SATZ, JJ., concur.

      . The court also awarded the custody of another child of the marriage, Lance, age 10, to appellant. After a hearing and agreement between both parties, the custody of Lance was transferred to respondent and is therefore not in issue here.


text:
    Felix W. DUNCAN, Jr., Movant, v. STATE of Missouri, Respondent.
    No. 40065.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 17, 1979.

      William E. Albrecht, Clayton, for movant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Kristie Green, Katherine Marie Kraus, Asst. Attys. Gen., Jefferson City, George Peach, Circuit Atty., Richard L. Poehling, Asst. Circuit Atty., St. Louis, for respondent.
   CRIST, Judge.

Denial of a Rule 27.26 motion to vacate conviction. This appeal arises out of the conviction of movant of second-degree murder. Movant was originally charged with first-degree murder. The trial court held the state had not made a submissible case on the first-degree murder charge. It submitted the ease to the jury on second-degree murder and manslaughter instructions. Movant was convicted by a jury of second-degree murder and sentenced to twenty years imprisonment. The conviction was affirmed by this court in State v. Duncan, 540 S.W.2d 130 (Mo.App.1976). Movant then filed his Rule 27.26 motion which was denied by the court below. Movant appeals. We affirm. A pre-Fields v. State case.

, Movant claims that the trial court erred in denying his pro se Rule 27.26 motion without appointing counsel to evaluate the motion and to file an amended motion stating in lawyerlike fashion the particulars of his claim. In other words, movant contends his motion sufficiently stated a claim of ineffective assistance of counsel to warrant appointment of counsel.

Movant concedes the trial court’s denial of an evidentiary hearing was proper. He argues that appointment of counsel would have enabled him to present his arguments in support of his motion more clearly, completely, and accurately. Movant argues to this court: (1) His attorney failed to raise an issue concerning the jury instructions in his motion for new trial (Apparently, the issue is whether it was error for the trial court to state to the jury panel prior to trial that the charge was first-degree murder and then submit the case to the jury on second-degree murder instructions.); (2) His attorney failed to discuss with him during trial the ramifications of the court’s submission of the case under a theory of second-degree murder after movant had been charged with first-degree murder; (3) His attorney neglected to explain the likelihood of conviction for second-degree murder and thus deprived movant an opportunity to negotiate a plea.

In order to justify appointment of counsel, a motion must present questions of law or issues of fact. Movant’s allegations of ineffective assistance of counsel do not raise questions of law or issues of fact. He has not presented sufficient grounds to warrant appointment of counsel to assist in amending his motion. Rule 27.26(h).

Movant’s basic contention is that his lawyer should have done something to prevent his conviction of second-degree murder by a jury instructed on that charge after movant had originally been charged with first-degree murder. We are not persuaded that movant sufficiently alleges ineffective assistance of counsel to warrant the appointment of counsel under Rule 27.-26(h). Murder in the first-degree embraces every grade and degree of criminal homicide. State v. Clark, 546 S.W.2d 455, 470[25] (Mo.App.1976). A lawyer is not required to raise frivolous points. Kopf v. State, 559 S.W.2d 263, 264[2] (Mo.App.1977).

The judgment is affirmed.

REINHARD, P. J., and GUNN, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Frank MORRIS, a/k/a, Castudarrel Cunningham, Defendant-Appellant.
    No. 40224.
    Missouri Court of Appeals, Eastern District, Division One.
    July 17, 1979.

      Charles H. Mostov, Asst. Public Defender, Michael M. Frank, St. Louis, Howard E. McNier, Clayton, for defendant-appellant.
    Thomas M. Daly, Asst. Circuit Atty., St. Louis, John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   PUDLOWSKI, Judge.

Defendant Frank Morris, also known as Castudarrel Cunningham, was found guilty by a jury of stealing from a person. The defendant was sentenced under the Second Offender Act to ten years in the custody of the Department of Corrections. Defendant appeals.

The evidence shows that Eugene and Ca-noy Bueneman resided in the 4900 block of Washington Avenue, City of St. Louis, and operated their home as a boarding house. During the evening of August 6, 1977, Mrs. Bueneman, Mrs. Hays and a third unidentified female resident of the Bueneman home were seated on the front porch. At that time defendant and another man, known to defendant as Bumpy Jay, approached the women. The porch was some four feet above the street level. Bumpy Jay walked up the steps from the sidewalk to the porch and engaged the women in conversation. Defendant remained on the sidewalk but within reach of the porch. He said nothing. While Bumpy Jay spoke he seemed to wink and nod to defendant in an effort to signal or communicate surreptitiously. The women were annoyed and frightened by this conduct. Mrs. Bueneman went inside the house and roused her husband who had been sleeping. Mr. Bueneman came to the porch door and asked the two men to leave. As Bumpy Jay departed, walking down the steps from the porch, defendant grabbed Mrs. Hays’ purse and both fled.

Shortly after this occurrence St. Louis Police Department Officers William Abel and Terrance Sloan, who were driving east in the 4900 block of Delmar, observed the defendant and his companion running across a post office parking lot. The parking lot abutted a vacant lot on Washington Avenue which the two men had crossed. Defendant and Bumpy Jay were running together, only a foot to four feet apart. The two ran across the street within twenty feet of the officers’ marked police vehicle. Defendant was carrying Mrs. Hays’ purse.

Officer Abel, who was driving, stopped the police vehicle while Officer Sloan got out. Officer Sloan, who was in uniform, identified himself as a police officer and commanded defendant and his companion to halt. This command was answered by a shot from Bumpy Jay’s revolver, whereupon the two men ran in different directions.

Defendant ran down an alley and into a vacant lot. The lot was covered with weeds and defendant lay among them in an effort to conceal himself. Defendant was quickly apprehended by Officer Sloan. The officer found Mrs. Hays’ purse in the lot three feet from where defendant hid. The purse contained $1.33 and a few of Mrs. Hays’ personal possessions. When asked his name, defendant responded that he was Frank Morris. This name was an alias.

Officer Abel chased Bumpy Jay but was unable to apprehend him.

At trial defendant testified on direct examination that he had been convicted of the fraudulent use of a credit card, burglary and stealing from a dwelling. These convictions resulted in a twenty-five year suspended sentence on condition of five years probation. Defendant also testified that he understood that if he were convicted of another offense his probation would be revoked. However, the trial court precluded defendant from testifying that if his probation were revoked he faced twenty-five years imprisonment because his sentence would be reimposed.

Defendant’s first contention is that the trial court erred by prohibiting admission of the length of his suspended sentence. We do not agree.

Defendant, in maintaining his innocence at trial, testified that his companion took Mrs. Hays’ purse, that he, defendant, fled the Bueneman residence only because he feared his probation would be revoked and that Officer Sloan was mistaken as to where the purse was found. Defendant contends that he had a right to inform the jury that he faced a twenty-five year jail term if his probation were revoked because this bore directly on his state of mind at the time the crime was committed. Defendant also argues that it explains why he fled and accounts for why he gave a false name when arrested. Defendant’s premise is that because he faced the possibility of twenty-five years imprisonment he would not commit another crime and would reasonably fear trouble with the police. Therefore, defendant argues, it was a prejudicial error to exclude evidence of the length of his suspended sentence.

The relevancy of evidence depends on whether the evidence sought to be introduced tends to prove or disprove a fact in issue, or to corroborate evidence which is relevant and which bears on the principal issue. State v. Walden, 490 S.W.2d 291 (Mo.App.1973). It is within the sound discretion of the trial court to exclude evidence when its probative value is substantially outweighed by its prejudicial effect. State v. Johnson, 539 S.W.2d 493, 517 (Mo. App.1976); State v. Morrow, 541 S.W.2d 738 (Mo.App.1977). In this context prejudice means more than damage to the opponent’s case. Evidence that the facts are contrary to a party’s contentions is always damaging to his cause; but that cannot be ground for exclusion. “What is meant here is an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one.” McCormick, Evidence 439 (2d ed. 1972). Because of the trial court’s superior vantage for balancing the probative value and prejudical effect, it is vested with broad discretion in admitting or rejecting evidence. State v. Love, 546 S.W.2d 441 (Mo. App.1977).

Wigmore argues that the better rule is to freely admit explanations of flight, leaving to the jury the plausibility of the explanation. Wigmore, Evidence § 276 (3d ed. 1940). In general we agree. However, we cannot say that the trial court abused its discretion in prohibiting defendant from testifying as to the length of his suspended sentence. Defendant was allowed to testify that he had previously been convicted, that he was on probation when the crime was committed and that he knew if he committed another crime his probation would be revoked. Thus, defendant was still able to argue that he never formed the intent to steal, that he fled the scene of the crime and that he gave a false name to the police because he feared his probation would be revoked. In so doing the trial court prohibited admission of the fact that defendant would effectively serve twenty-five years imprisonment for the theft of a purse which contained only $1.33. The prejudicial effect of this evidence could have been considerable. The trial court did not abuse its discretion in determining that the prejudicial effect outweighed the evidence’s probative value. Therefore, excluding its admission into evidence was proper.

The defendant’s second allegation is that the trial court erred by allowing the prosecutor to delve into defendant’s reputation by cross-examining defendant and thereby eliciting testimony concerning his prior convictions. We do not agree.

Defendant has failed to preserve this point for our consideration. There was no objection made by defendant or relief sought at the time the alleged error occurred. Therefore, this point need not be considered. State v. Drake, 514 S.W.2d 653 (Mo.App.1974).

Furthermore, defendant took the witness stand in his own behalf. A defendant who testifies is subject to impeachment. In this respect the defendant is to be treated like any other witness. State v. Martin, 530 S.W.2d 447, 452. Since defendant was a convicted felon his convictions could be used to attack his credibility. State v. Washington, 383 S.W.2d 518 (Mo.1964). Therefore, the trial court did not err in permitting the prosecutor to elicit the nature, date and places of the previous convictions. State v. Sullivan, 553 S.W.2d 510 (Mo.App. 1977).

Defendant’s next contention is that the trial court erred by failing to strike the prosecutor’s remarks in closing argument that there were other witnesses which the defendant could have called. Defendant also contends the court erred by failing to admonish the jury to disregard these remarks. These contentions are without merit.

It should be noted that in entering his objection defense counsel failed to request the court to admonish the jury to disregard the prosecutor’s remarks about the availability of other witnesses. Therefore, the failure to admonish the jury was not preserved and will not be considered by this court. Rule 84.13(a) as made applicable by Rule 28.18; Anderson v. Independent Mutual Fire Insurance Company, 453 S.W.2d 609, 614 (Mo.App.1970).

Turning to whether the trial court erred in failing to strike the prosecutor’s reference to the availability of other witnesses we are conscious that any impropriety of his remarks and the consideration of their effect on the merits must be made in light of the facts of this case. State v. Knapp, 534 S.W.2d 465, 568 (Mo.App.1975). During cross-examination of the defendant the prosecutor elicited the defendant’s claim that the purse had not been found near him in the weed covered lot, but brought there by Officer Abel from another location. Defendant explained that while Officers Abel and Sloan were not lying in testifying that the purse was found next to defendant, they were mistaken. In contradiction to the testimony of the two arresting police officers, defendant claimed he was not running alongside Bumpy Jay, that he was not with Bumpy Jay when a shot was fired at the officers, and that Bumpy Jay, not defendant, carried the purse. Defendant also testified that the police car had almost hit him while he ran for a bus and further, that Mrs. Bueneman was mistaken in her identification of defendant as the man who had taken the purse. Within this context the prosecutor, Mr. Daly, made the following comments during closing argument:

MR. DALY: . . . Call to mind the fact, according to his (defendant’s) story, he is going to catch a bus. There are other people out there on that street. Other police officers come on the scene. All these people conspiring.
MR. MOSTOY: Objection, Your Honor, to all these people. The only people in evidence are police officers.
THE COURT: Well, the jury will remember the evidence and follow the instructions of the court. You have two minutes left, Mr. Daly.
MR. DALY: Thank you, Your Honor. Are all these people conspiring to put a case on (against defendant)?

In light of the context in which the remarks were made the prosecutor was not inferring that people on the street could have been called as witnesses. Rather the prosecutor was arguing that it was incredible to suggest that the occupants of the Buenemans’ porch and the police officers would all give false testimony in order to convict the defendant.

Furthermore, even if our interpretation of the above quotation is incorrect, there was no prejudicial error committed because the prosecutor may refer to the defendant’s failure to produce or offer evidence. State v. Jenkins, 516 S.W.2d 522, “528 (Mo.App. 1974). Therefore, defendant’s contention that an impermissible inference resulted from the prosecutor’s comments is without merit.

The defendant’s final complaint is that the trial court erred in giving the jury instructions MAI-CR 7.70 and MAI-CR 2.10.

Instruction MAI-CR 7.70 modified by 2.12, submitted by the prosecutor is as follows:

If you find and believe from the evidence beyond a reasonable doubt:
First, that on August 6, 1977, in the City of St. Louis, State of Missouri, the defendant acting with another took from the actual and immediate physical control of Marguerite Hays a purse containing personal papers and one dollar and thirty-three cents lawful money of the United States, and
Second, that the property was taken by the defendant acting with another with the intent to permanently deprive Marguerite Hays of her use of such property and to convert it to the use of the defendant and another, and
Third, that the property was taken by the defendant without the consent of the owner, and
Fourth, that the defendant acted either alone or knowingly and with common purpose together with another in the conduct referred to in the above paragraphs, then you will find the defendant guilty of stealing from a person.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.

Defendant argues that giving the instruction was error because the state presented no evidence that defendant knowingly and with a common purpose acted with another for the purpose of stealing the purse. We do not agree. The evidence shows: 1) defendant and Bumpy Jay approached the Bueneman porch together; 2) Bumpy Jay went to the top of the stairs and engaged in idle conversation while defendant remained on the sidewalk near the porch; 3) as Bumpy Jay spoke he winked and nodded in defendant’s direction, and 4) after the two were asked to leave, Bumpy Jay started down the steps and defendant grabbed the victim’s purse. This evidence was such that the jury could infer that defendant and his companion were acting together for a criminal purpose. State v. Nichelson, 546 S.W.2d 539 (Mo.App.1977).

Defendant alleges it was error for the trial court to give MAI-CR 2.10 because he had no notice that he was being tried for acting with another in stealing Mrs. Hays’ purse. Instruction MAI-CR 2.10 reads:

All persons are guilty who knowingly act together with the common purpose of committing an offense, or who knowingly and intentionally aid or encourage another in committing it, and whatever one does in furtherance of the offense is the act of each of them.
The presence of a person at or near the scene of an offense at the time it was committed is alone not sufficient to make him responsible therefor, although his presence may be considered together with all of the evidence in determining his guilt or innocence.

We find defendant’s contention to be meritless. The information filed in this case states “[T]hat Frank Morris . acting with another . . . did unlawfully and feloniously steal. . . . ” Therefore, defendant was informed that he was charged with the offense regardless of whether he was a principal in the first or second degree. The evidence at trial was strong that defendant actually took Mrs. Hays’ purse. It was not error to so inform the jury. Judgment affirmed.

SNYDER, P. J., and SMITH, J., concur.