author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri, Respondent, v. Willie COLEMAN, Appellant.
    No. 36301.
    Missouri Court of Appeals, St. Louis District, Division Four.
    May 20, 1975.

      Charles D. Kitchin, Public Defender, Thomas J. Prebil, James C. Jones, Asst. Public Defenders, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Scott A. Raisher, Asst. Attys. Gen., Jefferson City, for respondent.
   NORWIN D. HOUSER, Special Judge.

Willie Coleman, convicted of Burglary Second Degree, § 560.070, RSMo 1969, Y.A. M.S., and committed to the department of corrections for a period of 10 years, has appealed from the judgment of conviction.

The State’s evidence showed that the building housing Alper’s Jobbing Company at 1516 Dr. Martin Luther King Drive in the City of St. Louis was burglarized. The latch on the front door was forced open and part of the wood broken away. Six large cartons of shoes were taken from the building. At 12:40 a. m. two police officers observed appellant and another man exiting from an open door at Alper’s, each carrying a large cardboard box. These two proceeded across the street and there placed the boxes in the doorway of a building on the north side of the Drive, directly across from the Alper building. After setting down the box he was carrying appellant turned around and “headed out back across the street,” walking. There were street lights in the area. The officers were dressed in full police uniform. Evidently the two men saw the police officers, for when appellant was halfway across the street on his way back he began running south, then west on the Drive. The other man set his box down in the doorway and began running west on the north side of the Drive. One of the officers shouted “Stop, police officer,” but the two continued to flee. One officer pursued the man who was with appellant, and apprehended him. The other officer pursued appellant on foot to 16th Street, then east through the rear alley south of the Drive. There he found appellant crouched down in a small shed in the alley. State’s Exhibit 7, a pair of shoes taken from one of the six large boxes, identified as having been taken from Alper’s, was introduced in evidence. Mr. Alper testified that he gave neither appellant nor the other man permission to enter the building.

Appellant claims this evidence is circumstantial merely and is consistent with at least one reasonable hypothesis of his innocence; that it evidences nothing more than presence at the scene, opportunity to commit the crime and flight, which merely raises a suspicion of guilt but is insufficient evidence to authorize a conviction. Appellant suggests that the State’s evidence is consistent with the following hypothesis of innocence (to which version of the facts appellant testified): that appellant left Bob’s Restaurant, walked down the Drive, saw five young male blacks on the sidewalk very near Alper’s, and near a number of boxes; that as appellant approached he was seen by the men, who grabbed small shoe boxes and fled; that two more men emerged from Alper’s carrying large boxes which they placed in the doorway of the building across the street; that upon the appearance of the two police officers the men carrying the boxes ran and that appellant, frightened by the oncoming police car, also fled the scene.

The State’s evidence is not insufficient as a matter of law to prove beyond a reasonable doubt that appellant committed burglary in the second degree. “This evidence clearly shows that insofar as the criminal agency of appellant is concerned this case was not based upon circumstantial evidence but upon direct eyewitness testimony,” State v. Marler, 453 S.W.2d 953, 956[1] (Mo.1970), appellant having been seen exiting from the door of the store with stolen goods in his possession, and having been immediately pursued and apprehended in flight. Furthermore, evidence of burglary and recent, exclusive and unexplained possession of stolen property is sufficient to submit a burglary case. State v. Miller, 499 S.W.2d 496 (Mo.1973); State v. Robb, 439 S.W.2d 510, 513[3] (Mo.1969). If accused’s explanation of such possession is disbelieved by the trier of the fact (as apparently it was in this case) accused’s possession stands as if unexplained. State v. Clark, 438 S.W.2d 277 (Mo.1969); State v. Sallee, 436 S.W.2d 246, 250 (Mo.1969); State v. Durham, 367 S.W.2d 619 (Mo.1963). Other cases sustaining convictions of burglary under similar factual situations include State v. Mason, 506 S.W.2d 458 (Mo.App.1974); State v. Hawkins, 491 S.W.2d 342 (Mo.1973); State v. Wheeler, 478 S.W.2d 326 (Mo.1972); State v. Marler, supra. The court did not err in overruling appellant’s motion for judgment of acquittal at the close of the case and in submitting the case to the jury.

The trial court was not guilty of an abuse of discretion in denying appellant’s motion for a mistrial, following the prosecutor’s use of the word “arrest” during his cross-examination of appellant. The record follows:

“Q (By Mr. Kavanaugh): By the way, sir, in conclusion, you were convicted also were you not, you said you were convicted in 1959 of assault with intent to rob; is that right?
“A That’s correct.
“Q And you said that you were convicted in 1965 of three charges of assault with intent to kill; is that right?
“A That’s correct.
“Q Is it not also true you were convicted in 1962 of carrying a gun and sentenced to six months in the city workhouse?
“A That’s true.
“Q That’s true. Is it not also true you were convicted in April of 1964 of assault with intent to kill?
“A that’s true.
“Q So it is not just for the six prior felony convictions you have—
“A No, four.
“Q Sir?
“A Four, four.
“Q Well, there is an assault to rob, assault with intent to rob; is that right?
“A Two of those I never had no conviction on it.
“Q I am not talking about arrest I am talking about convictions?
“MR. PREBIL: I am going to object, and request to approach the bench.
“THE COURT: Sustained as to the term arrest.

(Whereupon the following proceedings were held at the bench out of the hearing of the jury):

“MR. PREBIL: This questioning has gotten a little bit out of hand. Now, for the first time he mentioned my client’s arrest record. It is completely improper for him to mention that, and the sole intention in my mind is to prejudice the jury, against my client. At this time I am going to request a mistrial.
“MR. KAVANAUGH: Before the Court makes any further ruling I would like the record to show, remind the Court rather, that this man said that he was not convicted, and it was at that time and only after that point that I told him I was not referring to arrest I was referring to convictions. This witness has showed some confusion.
“THE COURT: He has admitted it, all of them, so let’s leave it at that.”

While the credibility of a witness may not be attacked by showing mere arrests, investigations or criminal charges which have not resulted in convictions, State v. Taylor, 498 S.W.2d 614 (Mo.App.1973); State v. Elbert, 471 S.W.2d 170 (Mo.1971), that rule is inapplicable under these circumstances, where the accused at first admitted that the 1962 and 1964 episodes were convictions and then promptly reversed himself and denied they were convictions. The prosecutor’s use of the word “arrest” under these circumstances was inadvertent, and was invited — brought on by appellant’s own testimony, and at most was harmless error. The use of the word in this context did not carry the sting or contaminate the verdict, as in cases where the prosecutor knowingly and intentionally engages in a direct inquiry with reference to a witness’ prior arrests.

Appellant’s defense (that the offense was not committed by appellant but by several other boys prior to the time appellant came upon the scene) was not a “special negative defense” within the meaning of the definition of that term in Notes on Use under MAI-CR 2.04, nor was it a “theory of innocence,” requiring submission to the jury by appropriate instruction, whether requested or not, under the rulings in State v. Tate, 436 S.W.2d 716 (Mo.1969), and State v. Kinard, 245 S.W.2d 890 (Mo.1952). An instruction to acquit upon a finding that appellant was not involved in breaking into the premises of Alper’s and that offense was committed by the five boys appellant mentioned was not part of the “law of the case” within the meaning of Rule 26.02(6), V.A.M.R., requiring instructions upon all questions of law necessary for the guidance of the jury. Appellant’s testimony that he innocently came upon the scene of a burglary committed by others constitutes nothing but a “denial of the charge in its entirety,” fitting precisely within the rule announced in State v. Banks, 491 S.W.2d 247, 248[2] (Mo.1973), that “A defense bottomed on evidence an accused had nothing whatever to do with the crime charged does not come within the connotation of the ‘theory of innocence’ principle * * Appellant’s denial that he committed the crime “did not entitle him to a ‘theory of innocence’ instruction as a special defense to the charge.” State v. Broomfield, 510 S.W.2d 843, 846[2] (Mo.App.1974).

The court gave Instruction No. 7 on flight. Under the law in force at the time of this trial on May 20-22, 1974 it was not error to give an instruction on flight when justified under the evidence. See State v. Ward, 518 S.W.2d 686 (Mo.App.1975), and compare the cognate situation in State v. Martin, 515 S.W.2d 802, 804-805[4] (Mo.App.1974), in which reference is made to the proposition that there was no duty to instruct by MAI prior to the date when the MAI became operative. And see State v. Price, 513 S.W.2d 392, 396[8] (Mo.1974); State v. Durio, 512 S.W.2d 833, 835[4] (Mo.App.1974), and State v. Tindall, 496 S.W.2d 267, 271 (Mo.App.1973). (Since March 1, 1975 no flight instruction may be given, MAI — CR 5.40, but that rule was not in effect at the time this trial took place). Appellant argues that all of the State’s evidence was circumstantial and if the State wished to instruct the jury on the effect of appellant’s flight (which appellant concedes took place) the proper way would have been to give the general instruction on circumstantial evidence, MAI — CR 3.42; that under Rule 20.02(c) this applicable MAI — CR instruction should have been given to the exclusion of any other on the same subject. As indicated above, this is not a circumstantial evidence case. The argument is untenable.

Finally, appellant claims that in at least six different instances (the complaints ranging from A to F, both inclusive) the prosecutor in his argument to the jury made improper statements which were clearly prejudicial. Only appellant’s complaints A and C were objected to at the trial, and only complaint A was mentioned in the motion for new trial. Complaints B through F were not properly preserved for appellate review, but we have examined each of these complaints on appellant’s suggestion that they be considered and ruled upon as matters of plain error pursuant to Rule 27.20(c).

(A) In pleading with the jury not to return “this type of individual back on our streets” the prosecutor said, “The next time it is not going to be little Mr. Alper’s Shoe — ” whereupon he was interrupted by an objection that the argument was improper. The court sustained the objection and upon request of appellant instructed the jury to disregard the statement, but ignored appellant’s request to discharge the jury and declare a mistrial. Appellant cites cases condemning inflammatory appeals calculated to arouse hostility towards the defendant by implanting fear in the jurors that if acquitted defendant will endanger their own safety or that of their families, contending that the argument implied that if the jury failed to convict appellant he would or might commit other crimes, possibly against members of the jury. Appellant reads into the argument implications that are not there. As in State v. Crawford, 478 S.W.2d 314, 320 (Mo.1972), wherein the prosecutor argued in similar vein, “[t]here was no suggestion of personal danger to the jurors or the members of their families if defendant was acquitted; nothing to arouse personal hostility on the part of the jurors. We construe the statement as a permissible call for law enforcement and discouragement of this type of crime, and find the argument unexceptional.” And see State v. Henderson, 510 S.W.2d 813, 823[22] (Mo.App.1974).

(B) The prosecutor, referring to the question of credibility of the witnesses, commented that “this man has been convicted of felonies six times. Six times.” Shortly thereafter he repeated that “Here is a man who has been convicted six times before. * * * ” Appellant claims that the second reference to prior convictions “does not reflect upon his credibility, but rather upon his character—what kind of a man he is”; that the argument was an attempt to establish appellant’s “propensity for criminal conduct.” Immediately preceding his references to previous convictions the prosecutor said, “The judge tells you to take into consideration the credibility of the witnesses,” and “You decide the believability of every individual that hits that witness stand * * * you decide the weight it is to be given * * *.”

Taking into consideration the entire argument we disagree with appellant’s interpretation of the prosecutor’s remarks, finding as we do that the argument in question went solely to the question of appellant’s credibility.

(C) The prosecutor asked the jury whether the policemen, the judge and the prosecuting attorney had done their job, and then said, “Admittedly, I am no Morris Shenker * * * Admittedly, I am not a very fine trial attorney, but I have brought in here a set of facts,” on which he was “naive enough” to believe that the jury was not going to turn this type of individual back on the streets. Appellant sees in these comments an effort to have the jury consider the relative skills of counsel by implying that the State was disadvantaged when compared to the defense, in an effort to gain the sympathy of the jury, and argues that due to the vast resources of the State the most competent defense counsel can never overcome the built-in inequity and advantage the State enjoys, and therefore this argument was unfair. Again, appellant reads more into the statement than meets the eye. Another and more reasonable inference is that the prosecutor in effect was saying to the jury, “While I am not the best lawyer in the world I have brought you a set of facts on which I do not believe you are going to acquit.” “ * * * [A] court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.” Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 1873, 40 L.Ed.2d 431 (1974).

(D) In his final rebuttal argument the prosecutor said:

“They didn’t find any tools on these individuals. Well, now, if you are a burglar, or if you are a car thief, and you are breaking into an automobile. Are you going to keep the tools on you. Not if you are a pro; you get rid of the tools right away. I can remember a story again on television. Somebody saw a man point a gun, bang! another man on this corner falls over and dies. The man who shoots the gun throws the gun in a sewer, man who shoots gun has no gun on his person, therefore, he walks free. Does that make sense? Because this man didn’t have a crowbar, or screwdriver, or hammer, or tools on his person, he didn’t do anything. It doesn’t follow. The first thing you do is get rid of the thing.”

Appellant excepts to this argument on the ground that it implies that appellant is a professional burglar, and is based on the authority of a fictitious television program seen by the prosecutor, thus in effect making the prosecutor a witness against appellant. This point is not well taken. In the first place, the argument was invited. Defense counsel had argued that both police officers testified that when apprehended neither appellant nor the other man had tools in their possession, and that the door had been pried; that “it takes a tool to pry the door,” and concluded by asking the jury, “What does that tell you?” The plain inference sought to be drawn was that since appellant had no tools on him he had not used tools and was not one of the burglars. The prosecutor was attempting to meet that argument by countering with the argument that a burglar will “get rid” of tools which, if found on his person, would incriminate him; that while an amateur might keep on his person the tools with which he performed a burglary or made an illegal entry into an automobile, a “pro” would dispose of such incriminating evidence, and the jury should conclude that appellant got rid of the tools rather than that he did not use tools. The prosecutor did not directly accuse appellant of being a professional burglar. The word “pro” was used in the sense of a skilled or experienced person. Compare the use of the term “professional job” in State v. Hornbeck, 492 S.W.2d 802, 808-809[15] (Mo.1973), upheld as a legitimate characterization of the burglary and not constituting an attack upon the defendant’s character. Certainly appellant, who fled and was apprehended sans tools some distance from the scene, had an opportunity to get rid of burglar tools in the course of his flight. The reference to the television program was obviously made for illustrative purposes. No reasonable juror would consider the reference as evidence.

(E) At the end of his closing argument the prosecutor said:

“Now, I have told you briefly why there has been a case made here, a burglary in second degree is set out in the information filed in this case, and is set out in the instructions. Now, I would ask you to give Mr. Prebil, as I am sure you will, the same kind of attention you have given me, and ask him while he is speaking with you to go through these instructions with you, and have him tell you why not, why not, Mr. Prebil. Thank you, Your Honor.”

Appellant argues that this argument was intended to impose upon appellant the burden of proving his innocence— to shift the burden of proof to the accused. That this is not the case seems clear enough. As we construe these remarks the prosecutor was telling the jury, in effect, “I’ve told you why a case of burglary second degree has been made, and now listen to the attorney for the defendant, whom I ask to tell you why a case of burglary has not been made.” A prosecutor has a right to challenge the defense to demonstrate why the State has not made a case, without being held to have misstated the rule respecting the burden of proof. A prime function of defense counsel is to pick the State’s case apart and persuade the jury that the accused is innocent — to demonstrate that the State has failed to meet its burden of proof.

(F) Finally, appellant urges that the cumulative effect of (A) through (E) was to deprive appellant of a fair and impartial trial. From a consideration of the record, briefs, and cases cited we are of the opinion that the court did not err by not sua sponte interrupting and stopping the prosecutor’s argument, as appellant in retrospect suggests; that reversible error was not committed in connection with the argument; that no manifest injustice or miscarriage of justice has resulted, and that appellant’s claim for relief under the plain error rule must be disallowed.

Affirmed.

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


source: Caselaw Access Project

author: TITUS, Judge.

license: Public Domain

text:
    Henry A. GOLDEN, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION of Missouri, DIVISION OF EMPLOYMENT SECURITY, Defendants-Respondents.
    No. 9725.
    Missouri Court of Appeals, Springfield District.
    May 27, 1975.

      Devon F. Sherwood, Sherwood & Bruer, Springfield, for plaintiff-appellant.
    Terry C. Allen, Jefferson City, for defendants-respondents.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

Without success, claimant exhausted all administrative procedures and appeals provided by the Missouri Employment Security Law (Ch. 288) to obtain unemployment benefits for three weeks in February 1973. The result of claimant’s appeal to the circuit court was likewise not of his liking and he appealed to this tribunal for succor. § 288.210.

At the time of unemployment, claimant was a 30-year-old married college student enrolled at Baptist Bible College in Springfield. He had been a student at the college since September 1971 where classes required his attendance from 7:30 a. m. to 12:20 p. m., Monday through Friday. From and after September 1971 (except for the period of unemployment, supra) claimant had been employed in jobs that did not conflict with his classroom hours. Because of his need to attend classes during the stated hours, claimant was available for work only in the “afternoon[s] and evenings, or a third shift.” Denial of benefits was predicated solely on findings that claimant was not “available for work” as required by § 288.040, subd. 1(2). In part, the reason for the finding was: “The law has no special eligibility provisions for students attending school. A student must meet the same availability requirements as any other claimant [and] his personal circumstances must leave him free to accept •any full-time suitable work when it is offered to him; he must not place unreasonable restrictions upon the . . . hours or other working conditions which he will accept . . . . By reason of his class attendance this claimant was not in a position to accept full-time work during all normal working hours.”

Before proceeding we should note that claimants may not qualify for unemployment benefits either because they are (1) ineligible therefor by reason of the eligibility requirements of § 288.040, or (2) are disqualified for benefits under circumstances enumerated in § 288.050. The two provisions of the act are separate; ineligibility under § 288.040 is to be distinguished •from disqualification under § 288.050. Although there be situations where the eligibility and qualification vel non of a particular claimant for benefits overlap because both are involved, unfortunately in some situations where courts should be concerned and limited to a consideration of only one or the other, the opinions seem to improperly commingle and confuse the two. In this instance we are not concerned with disqualification under § 288.050; neither are we concerned with claimant’s ability to work nor the effectiveness of his efforts in actively and earnestly seeking work as prescribed by § 288.040. Rather, our question is simply this: Is the claimant here, who has limited the time when he is accessible for employment to hours when not in attendance at college classes, “available for work” within the meaning of that term as used in § 288.040?

The term “available for work” is not defined in the Missouri Employment Security Law. Apparently no authority has found it required or necessary to undertake an exact definition of the term. The courts generally are content with saying that as availability differs from case to case, no standards can be envisioned that would cover the myriad of differing circumstances that may surface in individual causes. Wiley v. Carroll, 201 S.W.2d 320, 321 (Mo.1947). However, to be eligible a claimant must clearly possess a genuine attachment to the labor market and be able, willing and ready to accept suitable work. Producers Produce Co. v. Industrial Commission, 365 Mo. 996, 1014, 291 S.W.2d 166, 177[12] (banc 1956). Therefore, since no doubt exists as to present claimant’s readiness and willingness to work during the hours designated by him, the basic issue then is whether the availability of claimant (whose availability was limited to specific hours when he was not in attendance at college classes) was so reduced that he in fact was no longer available for work. Freeman, Able to Work and Available for Work, 55 Yale L.J. 123. Of course, the burden of proof was on claimant to show he was eligible for unemployment benefits. Blackman v. Industrial Commission, Div. of Emp. Sec., 491 S.W.2d 18, 22[2] (Mo.App.1973).

We have been cited no Missouri cases dealing with the problem at hand and have found none through independent research. In other jurisdictions with statutes similar to § 288.040, subd. 1(2), full-time students “attending school have been markedly unsuccessful in their attempts to secure unemployment benefits. The courts usually hold that such claimants are not eligible for benefits because they are not available for work . . . .” Annotation, 35 A.L.R.3d 1129, 1154, § 7 (1971). A full-time student, it is said, has a heavy burden to overcome in obtaining unemployment benefits, as regular school attendance is evidence in itself of ineligibility [Callaghan v. Morgan, 9 Or.App. 116, 496 P.2d 55, 57[1] (1972)], although benefits cannot be denied merely on that basis alone. Minniti v. Employment Division, 523 P.2d 1060, 1062[2] (Or.App.1974). Also, to be available for work a claimant must be actually and currently attached to the labor market, but if he is a full-time student a “normally reasonable” rebuttable presumption arises that he is not available for work. Woodley v. Commonwealth Unemp. Comp. Bd. of Rev., 13 Pa.Cmwlth. 8, 317 A.2d 897, 898[1, 2] (1974). This comports with the general proposition that any claimant, student or non-student, may render himself unavailable for work by imposing conditions and restrictions on the hours and days he will be available for work. 81 C.J.S. Social Security and Public Welfare § 204, at p. 304.

Ineligible student-claimants are those who limit their availability for work to particular times, days or periods that do not interfere with their primary and principal objective of obtaining a formal education. The reason such students are considered ineligible is that by making themselves available for work only conditionally and on a limited basis at times that do not conflict with their classes and learning purposes, they have divorced themselves actually and currently from the general labor market. While the determination of student-claimants to secure an education is commendable, the standards of the employment security act must be applied consistent with its purpose of removing the economic disabilities and distress resulting from involuntary unemployment [§ 288.020; In re Platt, 130 Vt. 329, 292 A.2d 822, 824[2] (1972)], and not to subsidize the expense of educating those persons whose availability for work is secondary to schooling. For cases holding students attending colleges, technology institutions, elementary and secondary schools ineligible for unemployment benefits, see Annot., supra, 35 A.L.R.3d at pp. 1154-1158; Texas Employment Commission v. Hays, 360 S.W.2d 525 (Tex.1962); Keen v. Texas Unemployment Compensation Commission, 148 S.W.2d 211 (Tex.Civ.App.1941); Woodley v. Commonwealth Unemp. Comp. Bd. of Rev., supra, 317 A.2d 897; Callaghan v. Morgan, supra, 496 P.2d 55; Graham v. Commonwealth Unemp. Comp. Bd. of Rev., 14 Pa.Cmwlth. 445, 322 A.2d 807 (1974); De Mito v. Unemployment Compensation Bd. of Review, 193 Pa.Super. 201, 163 A.2d 688 (1960); Majoris v. Unemployment Compensation Bd. of Review, 192 Pa.Super. 269, 162 A.2d 86 (1960); Gulbin v. Unemployment Compensation Bd. of Review, 191 Pa.Super. 646, 159 A.2d 37 (1960); Collins v. Unemployment Compensation Bd. of Review, 191 Pa.Super. 273, 156 A.2d 593 (1959); Bates v. Unemployment Compensation Bd. of Review, 191 Pa.Super. 266, 156 A.2d 589 (1959).

Student-claimants ruled eligible for unemployment benefits are those who place their availability for work ahead of their pursuit for formal learning. By not limiting their availability for work to times when they are free from class attendance and by proving a sincere willingness to change class schedules or entirely abandon their educational pursuits if that be necessary to secure employment, such student-claimants are said to be eligible for benefits because they are realistically and genuinely attached to the labor market. Patronas v. Unemployment Comp. Bd. of Review, 5 Pa.Cmwlth. 491, 291 A.2d 118 (1972); Wiley v. Unemployment Compensation Bd. of Review, 195 Pa.Super. 256, 171 A.2d 810 (1961).

A willingness to merely be employed conditionally does not meet the test of availability and the determination of availability for work is largely a question of fact for the commission. Woodley v. Commonwealth Unemp. Comp. Bd. of Rev., supra, 317 A.2d at 898; Majoris v. Unemployment Compensation Bd. of Review, supra, 162 A.2d at 87. We review this case on appeal pursuant to Mo.Const. Art. V, § 22, to “determine whether the findings of the Commission are supported by competent and substantial evidence upon the whole record, and are authorized by law. We may not substitute our own judgment on the evidence for that of the Commission, but we are required to decide whether it could reasonably have made its findings and reached its result upon consideration of all the evidence before it, and we are authorized to set aside its decision if it is clearly contrary to the overwhelming weight of the evidence.” Mid-Continent Aerial Sprayers v. Industrial Comm’n, 420 S.W.2d 354, 356[3] (Mo.App.1967). Even when two possible conclusions may be reached from the evidence, our inquiry is limited to deciding whether the Commission could have reasonably reached the conclusion it did. Blackman v. Industrial Commission, Div. of Emp. Sec., supra, 491 S.W.2d at 22.

In this case the only testimony came from the claimant. He limited his availability for work to the “afternoon[s] and evenings, or a third shift,” or, in other words, to times which did not conflict with full-time college attendance. Claimant expressed no desire, willingness or ability to adjust present class hours or completely forego his educational pursuits if that be necessary and required to gain employment. The record stands mute as to the extent and existence vel non of any market for labor at the times claimant was willing to accept employment. Considering all of this, we cannot say the Commission unreasonably concluded that claimant’s primary object was to be a full-time college student who was not available for work because he was not unconditionally, realistically and genuinely seeking attachment to the labor market.

The judgment is affirmed.

All concur.

      . Statutory references are tb RSMo 1969, V.A.M.S.

      . Sec. 288.040: “1. A claimant who is unemployed and has been determined to be an insured worker shall be eligible for benefits for any week only if the deputy finds that (2) He is able to work and is available for work; provided, however, that no person shall be deemed available for work unless he has been and is actively and earnestly seeking work.”


author: FRANK C. CONLEY, Special Judge.

text:
    STATE of Missouri, Respondent, v. Bobbie Ray GARDNER, Appellant.
    No. 9386.
    Missouri Court of Appeals, Springfield District.
    May 27, 1975.

      John C. Danforth, Atty. Gen., Dan Summers, Asst. Atty. Gen., Jefferson City, for respondent.
    John B. Newberry, Springfield, for appellant.
   FRANK C. CONLEY, Special Judge.

A jury found defendant guilty of selling a controlled substance under the Narcotic Drug Act and assessed his punishment at twelve (12) years confinement. § 195.200, RSMo 1969, V.A.M.S. The defendant assigns as error on this appeal: (1) that the sentence imposed is so severe as to shock the conscience of the court, (2) allowing E. L. Porter to identify himself as a Highway Patrol undercover agent, (3) submitting the case to the jury inasmuch as the state failed to establish a crime under the drug laws, (4) allowing the prosecuting attorney to question each of the veniremen about their church affiliation.

Trooper E. L. Porter of the Missouri State Highway Patrol testified that on the evening of July 7, 1971, at -approximately 11:55 p. m. he met the defendant at Phelps Grove Park in Springfield, Missouri, and purchased from him “one lid” of marijuana for the sum of $15.00. Trooper Porter also testified that at the time of this sale the defendant did not have a beard and that if he had a mustache it was just beginning to grow. The State called one other witness, Everett Markway, Jr., a chemist for the Missouri State Highway Patrol who testified that the substance purchased by Trooper Porter was cannabis sativa, commonly called “marijuana.”

The defendant offered testimony from six witnesses including the defendant. These witnesses testified that at the time in question the defendant had a full-grown beard.

We consider the points raised by defendant in reverse order. The defendant alleges that error was committed by the trial judge in allowing the prosecuting attorney to' question each of the veniremen about their church affiliation.

A review of the record discloses while jurors were in fact questioned in this regard, at no time during such part of the voir dire examination did the defendant object to such questioning. Voir dire examination is conducted under the supervision and largely within the discretion of the trial court, State v. Crockett, 419 S.W.2d 22 (Mo.1967). The trial court must be given the opportunity by timely objection to pass upon the propriety of questions, and where the defendant forgoes objection, as occurred here, the trial court should not be convicted of error for allowing the questions. State v. Thomas, 452 S.W.2d 160 (Mo.1970), unless there be plain error. A review of this record does not so indicate. This point is ruled against defendant.

The defendant next alleges that the court erred in submitting this case to a jury inasmuch as the State had failed to establish a crime under the drug law.

An examination of defendant’s motion for new trial fails to disclose such an assignment of trial court error. Since errors not assigned in the motion for new trial are not preserved for appellate review, State v. Rowden, 452 S.W.2d 210 (Mo.1970), defendant cannot now argue this point unless the situation calls for invocation of the “plain error” rule (Rule 27.20(c), V.A.M.R.). Aside from the fact that defendant has waived the objection by not raising same in the motion for a new trial, the contention is ill-founded on the merits. First, from an examination of the record, it does not appear that defendant requested a definition, and words of common usage which are generally understood when used in jury instructions need not be defined in the absence of a request to do so. State v. Goodman, 490 S.W.2d 86, 87[1] (Mo.1973). Secondly, even if so requested the court was under no obligation to define “marijuana” for the jury. The key word under the old statute is “cannabis,” not marijuana. Accordingly, this point is likewise ruled against defendant.

The defendant’s third contention is that it was error to allow E. L. Porter to identify himself as a Highway Patrol undercover agent. The defendant’s contention that it was prejudicial to the defendant to permit Trooper Porter to identify himself as a member of the Missouri State Highway Patrol working undercover at the time of this offense is disposed of by a consideration of § 43.180, RSMo 1969, V.A.M.S., which reads as follows:

“43.180. Powers of patrol members — investigation of crime, how paid for
The members of the state highway patrol, with the exception of the director of radio and radio personnel, shall have full power and authority as now or hereafter vested by law in peace officers when working with and at the special request of the sheriff of any county, or the chief of police of any city, or under the direction of the superintendent of the state highway patrol, or in the arrest of anyone violating any law in their presence or in the apprehension and arrest of any fugitive from justice on any felony violation. The members of the state highway patrol shall have full power and authority to make investigations connected with any crime of any nature. The expense for the patrol’s operation under this section shall be paid monthly by the state treasurer chargeable to the general revenue fund, provided, however, the amount appropriated from the general revenue fund shall not exceed ten per cent of the total amount appropriated for the Missouri state highway patrol. (L.1943 p. 652 § 8358a; L.1949 p. 293)”

Trooper Porter testified that he was working in Springfield at the request of the County Sheriff. Therefore, pursuant to the statute, he possessed the authority “to make investigations connected with any crime of any nature.” See also § 195.190, RSMo 1969, V.A.M.S. This, likewise, is ruled against defendant.

We turn then to the first contention raised by the defendant, that the sentence imposed is so severe as to shock the conscience of the Court.

Clearly, the punishment was well within the range provided by statute. § 195.200(4), RSMo 1969, V.A.M.S. And while the trial court was authorized to reduce the sentence, it did not choose to do so. It should be noted that in his motion for new trial the defendant did not allege as an abuse of discretion the failure of the trial court to reduce the sentence. The general rule with regard to a reviewing court’s authority to reduce a sentence is that the necessary passion and prejudice and abuse of discretion must clearly appear in the record. State v. Agee, 474 S.W.2d 817, 820-821[11] (Mo.1971); State v. Mucie, 448 S.W.2d 879, 889[11] (Mo.), cert. denied 398 U.S. 938, 90 S.Ct. 1842, 26 L.Ed.2d 271 (1970); State v. Caffey, 365 S.W.2d 607, 610[6] (Mo.1963).

The Mucie case is helpful in consideration of this point in that it enumerates a list of factors which bear upon a request for a reduction of sentence. These factors are as follows: (1) was the penalty the maximum provided by law, (2) was the crime a brutal one, (3) how long did it take the jury to reach its verdict, (4) were there instances of inflammatory conduct or other prejudice producing events in the trial. 448 S.W.2d at 889.

Additionally, the Mucie court admonished that merely comparing other lesser punishment imposed for the same crime in similar factual contexts would be to no avail unless the compared cases actually involved a reduction of sentence. Guided by the check list enumerated in the Mucie case, it is abundantly clear that there are no grounds for a reduction of the sentence in the ease at bar. The record is totally devoid in this case of any indication that either in the evidence which was introduced and presented to the jury which heard this case and which assessed the punishment or in the argument or conduct of counsel in the trial of this case that there was anything which in any way could be construed as prejudicial and inflammatory and which resulted in a sentence being assessed which was prejudicial to this defendant.

As has so often been noted, the punishment fixed was within the range of punishment provided by the statute, and we shall not fault the trial judge who heard the evidence.

Accordingly, we affirm.

BILLINGS, C. J., HOGAN and TITUS, JJ., and REINHARD, Special Judge, concur.

STONE, J., not sitting.

FLANIGAN, J., not participating because not a member of this Court at the time the cause was submitted.


author: KELLY, Judge.

text:
    Gary W. KING, Plaintiff-Appellant, v. Dr. Edward LAKE, Defendant-Respondent.
    No. 35633.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 1, 1975.
    Motion for Rehearing or to Transfer to Supreme Court Denied May 19, 1975.
    Rosecan & Popkin, Richard C. Witzel, St. Louis, for plaintiff-appellant.
    Hullverson, Hullverson & Frank, Thomas C. Hullverson, E. Lemoine Skinner, III, St. Louis, for defendant-respondent.
   KELLY, Judge.

This is an appeal from a judgment of the Circuit Court for the Twenty-third Judicial Circuit of Missouri entered in behalf of a defendant in a medical malpractice case, and although the plaintiff-appellant attempts to present for review three Points Relied On in his brief, they constitute nothing other than abstract statements of law and fail to comply with the requirements of Rule 84.04(d), V.A.M.R., that Points Relied On “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, . . . ” (Emphasis supplied). On this grounds alone we could refuse to afford him review. However, since all three Points Relied On, as well as the six sub-Points, relate to one question, we shall nevertheless consider that question. The question, succinctly put, is whether the giving of an instruction defining “negligence” in a medical malpractice case in terms of the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of the defendant’s profession “practicing in similar localities ” constituted prejudicial error. We hold that it did not and affirm.

The facts, stated briefly, are that the plaintiff-appellant, on August 12, 1970, was working underneath an automobile removing the transmission when it fell off the jack fracturing his left forearm. He sought the services of the defendant-respondent, a Doctor of Osteopathy, whom he contends negligently failed to re-examine and re-x-ray his forearm after reducing the fracture and placing it in a plaster cast to determine whether the bones were in proper alignment as they healed. After trial to a jury, verdict was rendered for the defendant-respondent, judgment was entered thereon and this appeal followed.

The thrust of plaintiff-appellant’s complaint is that the trial court erred in refusing to give his proffered instruction and, instead, gave an instruction which is identical except that it limits the skill and learning required of the defendant-respondent to the skill and learning ordinarily used by members of the profession practicing in similar localities. He argues that the “similar localities” rule is antiquated and although the rule in Missouri prior to Gridley v. Johnson, 476 S.W.2d 475 (Mo.1972), the Supreme Court in Gridley reasoned that the rule had long outlived its usefulness, that the modern trend is away from the “similar localities” rule, and thereby changed the substantive law of the State in this respect. Defendant-respondent contends that although Gridley, supra, criticized the rule it did not overrule it, but, rather, referred the matter to the committee on jury instructions for later action, directing meanwhile that the trial courts and attorneys of this state continue to use M.A.I. No. 11.06 with the deletion of the words “in good standing.” 476 S.W.2d, l.c. 483. We agree with defendant-respondent’s contention.

This case was tried on June 26, 1973. The Supreme Court Order deleting the words “in similar localities” from M.A.I. No. 11.06 although adopted on December 12, 1972, was not published in the 1973 Pocket Parts of the Missouri Approved Jury Instructions and shipped until June 22, 1973. The Supreme Court Order of December 12, 1972 provides:

“The aforesaid changes in and additions to M.A.I. as now adopted must be used on and after July 1, 1973.” As the Supreme Court said in Smile v. Lawson, 506 S.W.2d 400, 402 (1974): “The trial court having given an approved instruction the use of which at the time was mandatory may not be convicted of error in not anticipating future changes in instructions on this subject.”

We affirm.

CLEMENS, P. J., and STEWART, J., concur.


author: PER CURIAM.

text:
    GORDON’S TRANSPORTS, INC., Respondent, v. BEST TRUCK LINES, INC., Appellant.
    No. KCD 26456.
    Missouri Court of Appeals, Kansas City District.
    June 2, 1975.

      Charles W. Hess, Kansas City, for appellant; Linde, Thomson, Van Dyke, Fairchild & Langworthy, Kansas City, of counsel.
    William P. Whitaker, Kansas City, for respondent; Reeder, Griffin, Dysart & Taylor, P. C., Kansas City, of counsel.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   PER CURIAM.

This is a suit by Gordon’s Transports, Inc., a corporation, for interline charges due it against defendant Best Truck Lines, Inc., which charges were incurred while defendant’s charter was forfeited in the state of Kansas. Defendant appeals from the judgment of the circuit court in favor of plaintiff in the amount of one thousand four hundred and forty-three dollars and thirty-three cents ($1,443.33), plus costs.

Defendant Best’s position on this appeal is, first, the trial court lacked jurisdiction of the subject matter of the litigation and to render judgment against a corporation which was nonexistent at the time the interline freight bills were incurred; that the former officer and owner, Isham, acted as statutory trustee under Section 351.525, RSMo 1969, V.A.M.S., during the period of forfeiture ; and that the corporation was not “recreated retroactively” when its charter was reinstated December 9, 1969; and second, neither the nonexistent corporation nor anyone acting in its place assumed the debts created by the former officer and owner, Isham, for interline service used by him.

These precise issues were decided adversely to defendant in Riley v. Best Truck Lines, Inc., 510 S.W.2d 229 (Mo.App.1974) (suit to recover insurance premiums); and Pacific Intermountain Express Co. v. Best Truck Lines, Inc., 518 S.W.2d 469 (Mo.App.1974).

No error of law appears, and therefore the judgment of the trial court is affirmed. An extended opinion in this cause would have no precedential value. Rule 84.16(b), V.A.M.R.


author: SIMEONE, Presiding Judge. McMILLIAN, Judge

text:
    STATE of Missouri, Plaintiff-Respondent, v. Virgil HALK, Defendant-Appellant.
    No. 35919.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 29, 1975.
    Motion for Rehearing or Transfer to Supreme Court Denied June 12, 1975.

      Charles D. Kitchin, Public Defender, Richard A. Knutson, David V. Uthoff, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., and K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty. and Thomas J. Kavanaugh, Jr., Asst. Circuit Atty., Charles B. Blaekmar, Sp. Asst. Atty. Gen., St. Louis, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

Defendant-appellant, Virgil Halk was convicted of the offense of attempted burglary and was sentenced to five years in the Department of Corrections. §§ 556.150, 560.040, RSMo 1969, V.A.M.S. He appeals. We affirm the judgment of conviction.

Mr. and Mrs. Jack Alumbaugh on May 9, 1973, owned a residence at 6128 Westminster Avenue in the City of St. Louis. To the west next door is a residence owned by Dr. Orland W. Johnson. There is a “gangway” between the two residences. On the morning of May 9, 1973, Mr. and Mrs. Alumbaugh left their home about 8:00 a. m. The doors and windows were locked. They did not give permission to anyone to enter their home that day.

At about 9:00 a. m. Mrs. Cheryl McKee, who lived a few doors away from the Alum-baughs, was taking her daughter to school and had occasion to walk by the Alumbaugh home. When she arrived at the gangway between the two homes, she “observed two young men kneeling in the gangway in front of the [basement] window, and one young man was pushing on the window.” One of the men she saw kneeling and pushing on one of the windows in the Alum-baughs’ residence was the defendant, Virgil Halk. When she saw the young men in the gangway, she said, “What the hell are you doing there?” and when she made the statement, “[t]hey turned and looked at me and then turned and jumped the fence into Dr. Johnson’s back yard.” At about that time, Dr. Johnson had just come back from walking his dog, and Mrs. McKee told him that “something was going on there.” Dr. Johnson went through his house and out to the back yard to “see if anybody was around.” About forty-five minutes or an hour later, he went to the back alley because “I thought I had seen some people pass down the alley. . . . ” When he started back toward his house, he was aware of a man standing by the gate. “He would be looking down at the Alumbaughs’ window or just standing there. And at that point he turned around and saw me, and then evidently there had been two other people there also, and they got up and ran, and then the other person also ran.” He could not identify the defendant, but Mrs. McKee did. Mrs. McKee knew the defendant because he “lives on Westminster.” She was able to identify the defendant in a lineup consisting of four men who were “all approximately the same physical description . . . [hjeight, weight, build, and so forth.”

After Dr. Johnson saw the young men run down the gangway toward the street, he called the police and gave them a general description of the young men. The police and Dr. Johnson examined the Alumbaugh window; the “bars had been more or less torn loose from the window sash.”

About 10:30 a. m. Mr. Alumbaugh, after receiving a phone message, returned to his home. When he arrived, he found that there “was an ornamental iron grille removed from one of the basement windows, placed against the foundation, and the window was pushed in. It is a swinging-type window.”

When Dr. Johnson called the police, Patrolman Jerry Jones came to the scene. He spoke with Dr. Johnson and noticed the condition of the basement window. “When I arrived, the iron bar . . . was on the outside, leaning up against the building.”

Virgil Halk was arrested by Officer Frank Banaszek, on May 9, at the defendant’s residence. Eventually trial was held. At trial, the prosecutor inquired of Officer Banaszek — “After the defendant was placed under arrest, was he advised by you or anyone in your presence of his constitutional rights?” He replied, “Yes, sir. I gave him his rights.” The officer also told the defendant he did not have to make a statement, that anything he said could and would be used against him. During the trial, the prosecutor again inquired of the ■officer — “[after the lineup at the district station] Did you again advise the man of his rights that he had a right to remain silent and didn’t have to make a statement?” The officer replied, “I’m not sure. We didn’t question him. He refused to make a statement.” (Emphasis added). No objection was interposed, nor was any motion to disregard or motion for mistrial made.

Defendant made a motion for judgment of acquittal at the close of the state’s case and again at the close of all the evidence. The defendant did not testify.

After instructions were given, which did not include one on “mere presence,” the jury returned a unanimous verdict of guilty. Defendant filed a motion for new trial alleging error in that the court erred in (1) “allowing Patrolman Frank Banaszek to comment on the fact that Virgil Hack (sic) did not make a statement” and (2) “not instructing the jury on the law as to mere presence of an individual at the scene of an offense.” After the motion was overruled, the defendant was sentenced to five years.

On this appeal, defendant urges three grounds for reversal: (1) “The trial court erred in permitting testimony concerning defendant’s refusal to make ,a statement since such evidence constituted an infringement on defendant’s constitutional rights”; (2) “[t]he court erred in not instructing the jury on mere presence of defendant at the scene of the crime, since it involved a question of law which was necessary information for the jury in reaching a verdict”; and (3) “[t]he trial court erred in overruling defendant’s Motion for a Directed Verdict since there was not substantial evidence of appellant’s guilt and a cause of action was not sufficiently established.”

We shall determine these points in inverse order. In ruling on the sufficiency of the evidence to sustain a conviction, we consider the evidence in the light most favorable to the state and all favorable inferences reasonably drawn therefrom as true, and all evidence to the contrary is to be disregarded. State v. Favell, 411 S.W.2d 245, 247 (Mo.App.1967); State v. Murphy, 356 Mo. 110, 201 S.W.2d 280, 282 (banc 1947); State v. Cain, 507 S.W.2d 437, 438 (Mo.App.1974).

There is no merit to the defendant’s third contention, and the authorities relied upon are not dispositive of the issue here. The defendant correctly states the general principle that evidence that an accused had an opportunity to commit an offense which merely raises a suspicion of guilt and gives rise to conjecture is insufficient to support a conviction. State v. Cain, supra, 507 S.W.2d at 440. Mere presence of an accused at the commission of an offense, while it is evidence to be considered in determining guilt, is insufficient unless there is evidence that the defendant participated in the commission of the offense or associated himself in some way with the venture. State v. Castaldi, 386 S.W.2d 392, 395 (Mo.1965); State v. Cain, supra, 507 S.W.2d at 441. There is evidence here that the defendant actively participated in the offense. The defendant and others were seen in the gangway kneeling by the Alum-baugh window, the defendant was identified by an eye witness pushing on the basement window and the grille was found lying next to the window against the foundation. We conclude that there was sufficient evidence to make a submissible case.

As to the second point, the court gave an instruction that “[a]ll persons are equally guilty who acts [sic] together with a common intent in the commission of a crime and a crime committed by two or more persons acting jointly is the act of all and each, one so acting.” Defendant contends that this “instruction is to [sic] general and inadequate because it omits a necessary area of the law, namely it makes no mention or explanation of mere presence of an accused at the scene of the offense.” He further contends that a “mere presence” instruction should have been given because this involves a question of law.

Appellant relies upon State v. Schleicher, 458 S.W.2d 351 (Mo. banc 1970). That decision held that the omission of the words “before or during the commission thereof [the crime]” did not make the instruction given inadequate since the instruction adequately required the presence and assistance in the criminal act itself. 458 S.W.2d at 354-355. That decision is not, we believe, authority for the point raised by appellant. The trial court in this case gave an instruction which required the jury to find beyond a reasonable doubt that if the defendant, acting alone or with others, did, with felonious intent, attempt to break and enter the Alumbaugh home and that defendant failed in the actual perpetration of the burglary, then the jury should find defendant guilty of attempted burglary in the second degree.

The evidence was that Mrs. McKee placed the defendant at the scene; she saw the defendant pushing on the window. The instruction given, we believe, adequately required the jury to find that the defendant was present so that an instruction on presence was not necessary. The trial court did not err in failing to give an instruction on “mere presence.” No such instruction was requested, and we believe that presence is a fact rather than a matter of law.

Thirdly, defendant makes much of the statement by Officer Banaszek that “. . . We didn’t question him. He refused to make a statement.” Defendant vigorously contends that the trial court erred in permitting this testimony and that such a comment indicating silence of an accused permits the jury to draw an inference of guilt. He contends that a long list of eases has held that “silence on the part of the accused after arrest or while in custody is inadmissible [sic] because he is under no duty to speak.” No objection was made at trial, and the point was not preserved for review; however, he urges us to treat the matter as “plain error” which affects the substantial rights of the defendant. Rule 27.20(c), V.A. M.R.

The rule is well established in this state that silence of an accused while under arrest is not admissible against him, because such person is under no duty to speak. State v. Dowling, 348 Mo. 589, 154 S.W.2d 749, 755 (1941); State v. Foley, 144 Mo. 600, 46 S.W. 733, 738 (1898); State v. Allen, 235 S.W.2d 294, 296 (Mo.1950); State v. Vainikos, 366 S.W.2d 423, 427 (Mo. banc 1963); State v. Phelps, 384 S.W.2d 616, 621 (Mo.1964); State v. Stuart, 456 S.W.2d 19, 22 (Mo. banc 1970); State v. Bowdry, 346 Mo. 1090, 145 S.W.2d 127, 130 (1940). The decisions which have applied this rule are cases where the accused was asked about the alleged crime or where someone in the presence of the accused made a statement about the alleged crime. This rule was extended in State v. Stuart, supra, to cover a situation where the defendant under arrest failed to volunteer an exculpatory statement. Such failure to volunteer such a statement was held to be inadmissible as an admission. The parties have not referred us to any decision, and our research discloses none, which resolves the issue presented — whether a statement made by an officer after giving the Miranda rights that the accused “refused” to make a statement — is reversible error regardless of the circumstances.

We believe that in the context of the facts of this case the one statement — “He refused to make a statement” — is not such plain error to require reversal.

Rule 27.20(e) provides that plain errors affecting substantial rights may be considered in the discretion of the court though not raised in the trial court or preserved for review “when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.” But before the “plain error” rule may be invoked, there must be a sound, substantial manifestation and a strong clear showing that injustice or miscarriage of justice will result if the plain error rule is not invoked. State v. Carpenter, 436 S.W.2d 748, 751 (Mo.1969); State v. Meiers, 412 S.W.2d 478, 480-481 (Mo.1967).

In State v. Meiers, supra, the defendant contended that certain statements made by him at the time of his arrest were admitted when he was not advised of his constitutional rights. The defendant sought review under Rule 27.20(c). Our Supreme Court declined to invoke the plain error rule, since there was no substantial manifestation that injustice or miscarriage of justice would result. See also State v. Taylor, 472 S.W.2d 395, 403-404 (Mo.1971).

The court in Meiers declined to adopt a rule where a question of a violation of rights under the Fifth Amendment is raised, that it must in every case abandon other time-tried and tested reasonable rules of trial and appellate practice. The “plain error rule” is to be invoked only on a case-by-case basis to prevent manifest injustice or miscarriage of justice.

We do not perceive any manifest injustice or miscarriage of justice in this case. The six words of the officer do not in our opinion constitute such a miscarriage of justice so as to constitute plain error and so as to require a reversal. The defendant was identified by Mrs. McKee pushing on the basement window, he was known by Mrs. McKee, the state’s evidence was substantial, the question propounded to the officer by the prosecutor was not “Did he refuse to make a statement?” but rather “Did you again advise the man of his rights . ?” The statement made by the officer was somewhat unresponsive. There was no deliberate attempt by the prosecutor to elicit a reply that the defendant refused to make a statement. The question was not objected to, and no objection was made to the statement. Under these circumstances, therefore, we do not find plain error.

Having disposed of all the contentions raised by the appellant and finding no reversible error, the judgment of conviction is affirmed.

The judgment is affirmed.

GUNN, J., concurs.

McMILLIAN, J., dissents in separate opinion.

McMILLIAN, Judge

(dissenting).

I respectfully dissent. While the majority opinion recognized that silence of an accused after arrest and while in custody is not admissible against him because such a person is under no duty to speak, the opinion thereafter does violence to the principle.

In deciding that our “plain error” rule has no application, the majority opinion adopts a very mechanistic formula by attempting to measure whether a miscarriage of justice resulted by a mere counting of words.

To put the claimed error in proper context, I have set out in full, relevant parts of the prosecutor’s questions:

“Q. After the defendant was placed under arrest, was he advised by you or anyone in your presence of his constitutional rights?
“A. Yes sir. I gave him his rights.
“Q. Did you tell him he did not have to make a statement?
“A. Yes Sir.
“Q. Did you tell him anything he said could be and would be used against him in court?
“A. Yes Sir.
“Q. After you advised him of those rights was he detained by you or was released?
“A. He was placed under arrest by me and conveyed to the 7th District Station.
“Q. After she viewed the lineup at that point, was this man released by you or detained, booked, and forwarded downtown?
“A. Detained and booked and forwarded.
“Q. Did you again advise the man of his rights that he had a right to remain silent and didn’t have to make a statement?
“A. I’m not sure. We didn’t question him. He refused to make a statement.”

We now know from the transcript of the trial that defendant never made a statement. And we may assume that the prosecutor was aware of this fact. Thus, the question becomes what was the motive, or, to say the least, the relevance of the question, “After the defendant was placed under arrest, was he advised by you or anyone in your presence of his constitutional rights?” And the further question, “Did you tell him he did not have to make a statement?” Obviously, neither question has any relevance nor materiality unless defendant had made an admission and the state was laying the foundation for its admission into evidence. Such was not the case, and as the prosecutor well knew defendant had made no statement. In this posture the motives of the prosecutor become suspect.

Not satisfied with the undue advantage gained from this thrust, the prosecutor continues his deadly attack with the question, “Did you tell him anything he said could be and would be used against him in court?” And finally, “Did you again advise the man of his rights that he had a right to remain silent and didn’t have to make a statement?” Answer, “I’m not sure. We didn’t question him. He refused to make a statement.” In my opinion this entire line of questioning by a seasoned prosecutor was an attempt to convict the defendant by his silence, permitting the jury to draw an inference of guilt from his refusal to explain, in violation of the spirit, if not, the letter of the Fifth Amendment of the United States Constitution and Article I, § 19, Mo.Constitution, Y.A.M.S.

In State v. Dowling, 348 Mo. 589, 154 S.W.2d 749, 755[4, 5] (1941), in a well-reasoned opinion by the late Judge Ellison, where an officer was permitted to state that: (1) the accused “. . . ‘wasn’t going to say anything until he seen an attorney’ . . . ” and (2) the accused “. ‘refused to tell us where he had been’ . ” the court held it cannot be proven that the defendant said he declined to answer on the advice of counsel; or refused to give a statement, People v. Rothe, 358 Ill. 52, 192 N.E. 777, 779(7) (1934); or declared he had nothing to say, Diblee v. State, 202 Ind. 571, 177 N.E. 261, 264(8) (1931).

In support of his conclusion Judge Ellison declared, “Section 22, Art. II of our Constitution [the present Art. I, § 18(a), Mo.Constitution, 1945] provides the accused in a criminal case shall have a right to appear and defend in person and by counsel. This applies also to proceedings before the trial. Section 23 [the present Art. I, § 19, Mo.Constitution, 1945] of the same Article provides no person shall be compelled to testify against himself in a criminal cause. The immunity afforded by this section protects the accused against self-incrimination before any tribunal or in any proceeding. Section 4082, R.S.1939, § 3693 Mo.St.Ann. p. 3247 (now § 546.270, RSMo 1969 [V.A.M.S.]) provides: ‘If the accused shall not avail himself or herself of his or her right to testify, ... it shall not be construed to affect the innocence or guilt of the accused. . .

If these statutory and constitutional rights have any meaning whatsoever their provisions cannot be violated, indirectly or directly, at the trial by a showing that defendant had theretofore been subjected to interrogation and stood on constitutional rights. Here, it is not a question as to whether or not these gratuitous statements were made by the officer inadvertently or were direct answers (as shown here) to inquiries made by the prosecutor, the question is whether or not such comments are constitutionally impermissible. I think so.

In State v. Phelps, 384 S.W.2d 616 (Mo.1965), the accused did not respond to officers’ questions while under arrest for a robbery. The court held that the evidence referred to was not competent, and its admission was error which was prejudicial to the defendant. Evidence that the accused did not respond or make any statement to the police officers while under arrest may well have been considered by the jury in determining his guilt or innocence. In State v. Stuart, 456 S.W.2d 19 (Mo. banc 1970), a juror, without objection, asked a police officer, “Did either one of these guys claim the money?” And the officer answered, “. . . [N]o.” The alleged error was neither preserved at trial nor asserted in the motion for a new trial. Relying on “plain error”, the court held an accused’s failure to volunteer an exculpatory statement is not admissible as an admission, and it may not be shown that by his silence he failed to deny or explain, while under arrest, any incriminating facts.

In the instant case, on two occasions, these incriminating admissions were placed before the jury, and by his silence or refusal to make a statement, his very refusal may in the mind of the jury be damaging or, to say the least, construed to affect either his innocence or guilt. Consequently, I would reverse and remand for a new trial.


author: ROBERT R. WELBORN, Special Judge.

text:
    Robert K. SKILLMAN, M.D., Respondent, v. FIRST NATIONAL BANK OF KANSAS CITY, Missouri, Executor of the Estate of Phillip L. Byers, M.D., Deceased, Appellant.
    No. KCD 27153.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.
    Motion for Rehearing and/or Transfer Denied June 2, 1975.
    Application to Transfer Denied July 14, 1975.

      William M. Stapleton, Daniel M. Dibble, Kansas City, for appellant; Lathrop, Koontz, Righter, Clagett, Parker & Nor-quist, Kansas City, of counsel.
    Roy A. Larson, Laurence R. Tucker, Morris, Mitchell, Larson, King, Stamper & Bold, Kansas City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Action to construe partnership agreement. Trial court found for plaintiff. Defendant appealed.

Dr. Phillip L. Byers began the practice of medicine in Kansas City in 1938. In 1954, Dr. Robert K. Skillman joined him as a partner and they practiced under an oral partnership agreement until December 21, 1968. At that time they entered into a written partnership agreement which is the subject of this litigation. Under the agreement they were to share equally in the profits, but a “billing differential provision,” at the crux of this controversy, provided for the reduction in the share of the income for a partner whose annual billings fell below the billings of the other partner.

The partnership agreement provided for disability benefits for temporary total, temporary partial, permanent partial and permanent total disability. The latter also had the effect of terminating the partnership.

Doctor Byers became ill with terminal cancer. His last work was performed April 30, 1970. A physical examination, as called for by the partnership agreement, resulted in a finding by the trial court that Doctor Byers’ permanent disability began July 1, 1970 and that the partnership terminated on that date. The trial court also found that Doctor Byers became temporarily totally disabled on April 30, 1970.

Plaintiff’s action was filed July 27, 1971. Doctor Byers died December 10, 1971, and his executor was substituted as defendant. In his petition, plaintiff asserted that April 30, 1970 was the date of Doctor Byers’ permanent disability, but he does not here question the trial court’s July 1, 1970 finding.

With that question no longer in controversy, the problem presented relates to the proper application of the “billing differential” to Doctor Byers’ share of the partnership income during 1970 and to the benefits to which he was entitled under the agreement upon his permanent disability.

The “billing differential” problem arose by reason of the following provision of the partnership agreement:

“15. VOLUNTARY REDUCTION OF WORKLOAD. In the event the annual billings of a Partner whose interest in the capital account is 33Vs% or more (hereinafter called a full Partner) fall one-sixth below the average annual billings of all the other full Partners, such Partner’s share of the partnership profits for each succeeding year shall be reduced by the difference between his average annual billings and the average annual billings of the other full Partners for the year in which such one-sixth or more reduction shall occur, the amount of profits thus reduced to be shared pro rata by the other Partners. If, in succeeding years, such Partner’s annual billings increase so that the difference between his annual billings and the average annual billings of all other full Partners is less than one-sixth of such Partner’s annual billings, the reduction of his share of partnership profits shall cease and he shall share in partnership profits as provided in Section 7 hereof.”

(The partnership agreement as originally drawn contemplated a partnership of three members. The third member did not join in the agreement.)

According to the stipulation on which the case was submitted, the “billing differential” provision was included in the agreement at Doctor Byers’ request. (Apparently the “billing differential” was applied in the 1968 partnership year, inasmuch as the December 31, 1969 financial report for the partnership showed a “Prior Year Billing: Differential” charge against Doctor Byers of $24,099.27.)

For the 1969 year, the billing differential charge against Doctor Byers was $34,504.80. The basic controversy, once the termination date was established, is whether or not this differential is to be applied against the permanent disability benefit payable to him under the following provision of the partnership agreement:

“2. If a Partner voluntarily withdraws from the partnership and does not continue in the active practice of medicine in the Greater Kansas City area, as above defined, or the partnership terminated because of the permanent total disability of a Partner, such withdrawing or disabled Partner shall receive from the remaining Partners an amount, in addition to the value of his interest in the capital account, equal to his share of the partnership profits for the three months preceding the date of termination of the partnership, such amount to be paid by the remaining Partners within one year after the date of termination of the partnership.”

The plaintiff asserted that the billing differential was to be applied against Doctor Byers’ share of the profits for 1970 and also against the permanent disability payment.

Based upon the trial court’s findings as to the effective date of Doctor Byers’ permanent disability and the termination of the partnership, three computations were submitted in the agreed statement of facts on which the ease was tried as possible under the agreement:

“Construction B:
“Assuming that temporary total disability commenced on April 30, 1970, and that permanent total disability commenced on June 30, 1970, and further assuming that the 1969 billing differential is not applicable after December 31, 1969, then Byers is entitled to the sum of $40,442.28.
⅝ sfc sfc ¾: ⅝ ⅜
“Construction D:
“Assuming that temporary total disability commenced on April 30,1970, and assuming that total permanent disability commenced on June 30, 1970, and further assuming that the 1969 billing differential should be applied to the capital account of Byers for the year commencing January 1, 1970, and assuming that the 1969 billing differential should not be applied to the three month termination benefit, then Byers is entitled to the sum of $5,937.49.
* * * ⅜ * *
“Construction F:
“Assuming that temporary total disability commenced April 30, 1970, and assuming that permanent total disability commenced June 30, 1970, and further assuming that the 1969 billing differential is applied to Byers’ capital account for the year commencing January 1, 1970, and to the three month termination benefit, then Byers owes the partnership $2,688.69.”

The defendant also submitted Construction H, as follows:

“Construction H:
“Assuming that temporary total disability commenced April 30, 1970, and that permanent total disability commenced on June 30, 1970, and further assuming that one half of the 1969 billing differential is applicable, then Byers is entitled to the sum of $23,189.88.”

Plaintiff agreed with the mathematics of this computation, but did not agree that it was a possible construction of the agreement.

The trial court accepted and adopted Construction F, but since plaintiff had disclaimed any claim for money judgment, no monetary judgment was entered. On this appeal, appellant urges that the trial court erred in failing to accept Construction B. Alternatively, appellant contends that Construction H should have been accepted.

The arguments of appellant in support of the claim that Construction B should have been accepted are summarized in its brief as follows:

“ * * * [T]his Court should find that the billing differential provisions of paragraph 15 have no application to the year 1970 first because the paragraph contemplates only a voluntary reduction of work load; second, because the billing differential operates only upon partnership profits (not disability benefits) and only then when they are ascertainable at the end of the year and contemplates an ongoing partnership during the entire succeeding year and not a termination thereof; and third, because to apply the entire amount of the billing differential would wipe out the disability benefits elaborately provided for elsewhere in the contract and would result in an inequitable, unreasonable and unfair interpretation of the agreement.”

The parties offer no novel suggestions as to the applicable rules in the construction of the agreement. They agree that the intent of the parties should be sought out and applied. They agree that the court should look to the words employed by the parties. Ward v. Gregory, 305 S.W.2d 499, 503[3] (Mo.App.1957). The agreement must be examined from its four corners and isolated provisions should not be sought out to the exclusion of others. Warnecke v. Rabenau’s Estate, 367 S.W.2d 15, 17-18[2, 3] (Mo.App.1963). Appellant also argues that when a contract is fairly susceptible to two constructions, the one which makes it fair, customary and such as prudent men would naturally make will be adopted, and the other which would make it inequitable, unusual or unreasonable will be rejected. Miller v. Kamo Electric Cooperative, Inc., 351 S.W.2d 38, 42[3] (Mo.App.1961). Appellant also argues that a clause of doubtful meaning should be given a construction which will make it fair and reasonable between the parties and will not give one party an unfair advantage over the other. Isaac T. Cook Company v. Bank of St. Louis, 297 S.W.2d 607, 611[5] (Mo.App.1957).

Respondent accepts these rules and cases, but would apply them in full for both parties. Respondent also would construe the billing differential provision strictly against Doctor Byers inasmuch as he was responsible for that provision of the agreement. McIntyre v. McIntyre, 377 S.W.2d 421, 426[11, 12] (Mo.1964).

Appellant advances three considerations which it contends shows that the billing differential provision was not intended to apply to the operation of the partnership in 1970. First, appellant contends that the caption of the provision in the agreement “VOLUNTARY REDUCTION OF WORKLOAD” indicates that the provision was intended to apply to voluntary action by one of the partners, which results in smaller billings, not to reduction in billings resulting from illness which produces disability. Appellant states: “As the stipulated facts have shown, Dr. Byers contracted terminal cancer and was totally disabled by that disease beginning April 30, 1970. Therefore, the reduction of his work load in 1970 (emphasis supplied) was anything but voluntary, * * The difficulty with this argument is that the billing differential here involved arose because of Doctor Byers’ smaller billings for 1969, not 1970. The stipulation of facts gives no basis for applying appellant’s conclusion to the 1969 year and therefore this argument must be rejected.

Appellant next argues that the billing differential is to be applied to reduce the “partner’s share of the partnership profits for each succeeding year” and that this language means that the effect of the billing differential was not to be applied until the end of the succeeding year, when the partnership profits are ascertained. Appellant argues that since the partnership did not continue for the full year 1970, there was no ascertainable profit for the partnership for that year against which the billing differential might be applied.

This contention is without merit. The purpose of the billing differential provision was to adjust the partner’s share of the income according to the share of the work done by each of them in producing the income. For the year 1969, the differential was ascertainable at the end of that year. When it reached the Vi, the differential was to be applied in the distribution of the profits of the succeeding year. A monthly profit statement was prepared for the partnership, showing the profit from each month’s operation through June, 1970. The partners’ drawings were obviously related to the effect of the billing differential reduction, with Doctor Byers drawing $30,300 through June 30 and Doctor Skillman $63,-000 during the same period. This evidences the construction which the parties themselves placed on the agreement and refutes the contention that the billing differential was to be given no effect until the end of the year 1970.

Appellant next contends that the 1969 billing differential should not be applied to 1970 because to do so would wipe out all disability benefits due Doctor Byers. Appellant argues that the parties would not have made detailed and extensive provision for disability benefits if they thought that it was possible to wipe out those benefits by application of the billing differential.

Temporary total disability benefits, under the agreement, consist of the disabled partner’s “share of partnership profits” for a period of seven months. Inasmuch as the billing differential is to be applied to the partner’s “share of the partnership profits,” no reason appears for not treating such income in the same manner as regular partnership income, insofar as the billing differential is concerned. What Doctor Byers was entitled to during his temporary total disability was his “share of partnership profits,” which .would include the effect of the billing differential. There is nothing in the agreement which indicates that the parties intended that the onset of disability would nullify the disabled partner’s obligation to the other partners which had arisen by reason of the past greater contribution of the nondisabled partner.

In the computations suggested by the parties below, there does not appear to have been any special consideration given or distinction made between the temporary total disability benefits to which Doctor Byers might have been entitled and his regular share of the partnership income. There does appear to have been a distinction made with respect to the termination benefit. The computation accepted by the trial court in which specific reference was made to the application of the billing differential to the three month termination benefit resulted in Doctor Byers owing the partnership $2,688.69. Construction D, which was on the same basis as Construction F except that in the latter the billing differential was not applied to the termination benefit resulted in Doctor Byers being entitled to receive $5,937.49. The difference between these figures is $8,626.18. No analysis of the computation by which this difference was arrived at has been given, but, since this figure is only two cents less than one fourth of the billing differential, it is obvious that this amount is related to one fourth of the billing differential and that in Construction F Doctor Byers’ termination benefit was reduced by that amount. The assumption appears to have been that since the termination benefit was a three months’ share of the profits, the applicable portion of the billing differential would have been ¾2 or ¼ of the year’s total. That is demonstrated by the following computation:

Construction Construction
D F
Beginning Capital Balance 3594.86 3594.86
Va Income through 6/30 45130.33 45130.33
⅝⅛ Income 5/1 through 6/30 22017.10 22017.10
Less V4 Billing Differential _ -8626.18
Total Credits 70742.29 62116.11
Drawings 30300.00 30300.00
Billing Differential 34504.80 34504.80
5937.49 -2688.69

The inequity of Construction F is apparent. The billing differential has been applied not once, but twice. Although appellant has not argued here for Construction D, in view of other errors in the trial court’s judgment, considered later, the court on remand should enter judgment declaring that Construction D is the proper construction of the billing differential clause in this case.

Respondent’s contention that because the partnership books showed a deficit in Doctor Byers’ capital account, he lost all entitlement to either temporary total or permanent disability benefits, must be rejected. None of the constructions suggested to the trial court involved such an assumption. The partnership was a 50-50 arrangement. The current status of either partner’s capital account as shown on the books of the partnership did not alter the right to share profits on the 50-50 basis, except insofar as the billing differential clause and other provisions of the agreement might temporarily reduce one partner’s share of the income.

The construction of the billing differential clause here applied will not produce an unreasonable and inequitable result. Disability benefits are reduced but do not become nonexistent. As stipulated by the parties, this provision was Doctor Byers’ idea. He lived with it through 1969 which saw a $24,099 billing differential for the preceding year result in his drawing $68,600 in 1969, whereas Doctor Skillman drew $111,500 from the partnership profits. He was fully aware of the effect of the provision at the time that his answer and counterclaim were filed in this litigation, yet he sought no relief from the provisions of the agreement by way of reformation. There is no reason to assume that the billing differential provision has not been applied as the parties intended when the agreement was entered into.

Appellant has suggested that the pro-rata application of the billing differential for 1970, which is the basis of Construction H in the parties’ stipulation, be adopted. Appellant points to nothing in the terms of the agreement which would authorize such construction.

In his counterclaim Doctor Byers asked for judgment for the amount of his capital account plus his share of the partnership profits from January 1, 1970, and disability benefits. The stipulation of facts recited that, on December 1, 1971, Doctor Skillman and Doctor Byers entered into an agreement with the lessor of the premises occupied by the partnership and k new lessee of such premises, under which the lease to Skillman and Byers was cancelled and certain “machinery, equipment, fixtures, installations, attachments, alterations, additions and improvements” were conveyed to the new lessee for $34,963.80. The stipulation also recited that the fixed assets of the partnership had a net book value as of June 30, 1970 of $9,468.49, which had been calculated in the various constructions previously referred to.

By his suggested findings of fact, the defendant sought a finding that the fair market value of Doctor Byers’ assets in the capital account on July 1, 1970, was $17,-481.90, or $12,747.66 more than the book value of his share of the assets on that date. Suggested conclusions of law included a finding that the fair market value rather than book value of the assets in the capital account was to be used in determining their value on the date that the partnership terminated or July 1, 1970. The suggested conclusions of law by defendant also sought recovery of $12,746.95 in addition to defendant’s claimed share of profits, that sum being the difference between the claimed fair market and book value of the assets.

The trial court adopted suggested findings by plaintiff that there was not sufficient evidence upon which to base a finding of fair market value of the assets on July 1, 1970. The court also found as a matter of law that the intent of the agreement was that book value be used in determining the value of the capital account for the purpose of calculating the termination benefit of Byers.

Appellant attacks those findings on this appeal. Respondent asserts that appellant has no standing to attack the findings because the stipulation below made no reference to “fair market value” of the assets and argues, in effect, that the question was never successfully raised below. The stipulation, taken with defendant’s suggested findings, shows clearly that defendant was seeking relief on the theory that the sale price of the fixed capital assets evidenced their fair market value as of the date of termination of the partnership. Respondent’s contention that the matter was not presented to the trial court cannot be accepted.

The provision of the agreement involved in this dispute is that portion of the provision for benefits to a totally disabled partner which includes “the value of his interest in the capital account * * *.” Respondent here asserts and the court below found that by this provision the parties meant the book value of the disabled partner’s interest in the capital account.

This provision is a part of Article 20 of the Agreement, dealing with “Retirement or Liquidation.” Under subsection (a) dealing with “Retirement,” which was likely drawn with the three-man partnership in mind, the retirement of a partner from the business was not to have any effect on the continuation of the partnership business. “The partnership books shall be closed at the end of the calendar year in the regular way and the retiring Partner shall be paid the amount of his interest in the capital account as then shown on the partnership books (emphasis supplied).” This demonstrates clearly that the parties knew how to make book value the controlling value for the purpose of calculating a partner’s share of the capital account. Such language is significantly lacking insofar as the provision here involved is concerned.

The contrast between the language of the provision here involved and that under Article 20(a) leads to the conclusion that the trial court erroneously held that Doctor Byers’ share of the partnership capital account was to be valued at its book value for the purpose of Article 20(b) 2. See Watson v. Lunt, 75 N.M. 734, 410 P.2d 954, 955[2] (1966); Sorokach v. Trusewich, 13 N.J. 363, 99 A.2d 790, 794[5, 6] (1953).

The question remains whether or not the sale on December 1, 1971 was sufficient proof of the value of the assets on July 1, 1970. “The price which personal property sold for at a time subsequent to the time as of which value is to be determined, but not too remote, is also admissible as evidence of its value.” 29 Am.Jur.2d Evidence, § 389, p. 441 (1967). The property involved is described as “machinery, equipment, fixtures, installations, attachments, alterations, additions and improvements * Their exact nature does not appear but obviously they are items required for equipping a doctor’s office. Such items are not subject to rapid or wide fluctuation in value. Therefore, the sale price in December, 1971 is not too remote to evidence the market value of the property as of July 1, 1970. The trial court erred in concluding that there was not sufficient evidence from which such value could be determined. The sale price was sufficient for that purpose.

The judgment is reversed and the cause remanded for entry of a new judgment in accordance with the views herein expressed. Such judgment shall include a monetary judgment in favor of defendant on its counterclaim in the amount of $18,684.44, consisting of $5937.49 due as Doctor Byers’ share of the partnership income and benefits for permanent disability and $12,746.95, representing the difference between the fair market value and the book value of the assets in Doctor Byers’ capital account on July 1, 1970.

Reversed and remanded.

All concur.