author: PRITCHARD, Chief Judge.

text:
    KANSAS CITY, Respondent, v. John R. HELMS, Appellant.
    No. KCD 28054.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Ronald J. Stites, Kansas City, for appellant.
    Aaron A. Wilson, City Atty., Louis W. Benecke, City Pros., Louise C. Hipsh, Asst. City Pros., Kansas City, for respondent.
   PRITCHARD, Chief Judge.

Upon his appeal from a conviction in Municipal Court, appellant was by the trial court found guilty of violations of the City’s ordinances, Sec. 34.93, racing on streets and highways; and Sec. 34.118, fleeing or attempting to elude a police officer. The trial court imposed sentences of 15 days confinement in the Municipal Correctional Institution on each charge, to run concurrently.

Appellant first says that the City did not meet its burden of proof in establishing his identity as perpetrator (as the driver of the automobile) beyond a reasonable doubt. The evidence, viewed in its light most favorable to the City, is this: On the evening of January 14, 1975, at about 5:55 p. m., officers Dowdell and Wagner were sitting in a police car in a parking lot at 105th Street and Blue Ridge Cut-off in Kansas City. At that time they saw an orange Chevrolet Nova moving northbound on Blue Ridge in the curb lane, without headlights, and at an estimated speed of 55 to 60 miles per hour, passing other vehicles. The posted speed limit was 40 miles per hour. The officers pulled onto Blue Ridge, turned on their lights and siren, and started pursuit. The vehicle continued to accelerate and turned east on 104th Street to Crystal, where it turned south to 105th Street, thence west a short distance to Corrington on which it travelled south and stopped in front of a residence at 10508 Corrington. In the course of the pursuit the officers never lost sight of the vehicle, being about 125 feet behind. On cross-examination Dowdell testified that distance was about 12 to 15 car lengths. After leaving Blue Ridge the officers encountered no other vehicular traffic. The officers were able to see that there were two people in the car, but could see only the backs of their heads. Officer Wagner testified that when the vehicle stopped in front of 10508 Corrington, the driver did not get out of it, but the person riding on the passenger side did. When the officers came up to the stopped vehicle, appellant was sitting in the driver’s seat and stated to Dowdell that he had not been driving it, and that it had been sitting there all night.

Upon being alerted to the chase by Dow-dell and Wagner, officer Bowman, who was in the vicinity, set up a road block with his vehicle on Corrington. From that position, about 150 to 200 feet away, he saw an orange Nova come around the corner and stop in front of a residence on Corrington. He saw the person get out of the passenger side and go about 5 or 6 feet away from it by the time the pursuing officers arrived, the time which elapsed being about 2 or 3 seconds. The driver of the car did not get out of it until the officers arrived.

Appellant’s position at trial was that he had not been driving the car but had permitted a young man, a prospective purchaser to drive it, accompanied by appellant’s girl friend, Laura White. At the time the chase was on, appellant was removing an air conditioner from another car he owned. He heard sirens, got out of the car he was working on and saw Laura running up to the house screaming. He ran to the vehicle and shut off the engine, and when the officers approached it he was behind the wheel with the door open and one leg out. Before this, the total time being 5 to 7 seconds, the young man who had been driving the car ran across the street and got into his own car, an orange Pinto, and appellant watched him drive away, in the opposite direction, north, from the police officers, as the police pulled up. [Officer Wagner testified that he saw no other vehicles move or leave the area where the pursued car stopped.] Appellant acknowledged that he had been with the young man, who was an interested buyer, in the vehicle before. He had known him about a month, but did not know his name. He knew that he lived in Ruskin, but did not know the address.

Laura testified that she had brought a meatloaf to appellant on the evening in question, and so he could eat it before it got cold she accompanied the young man in the car. She, too, had met the young man before when he was “over to buy the car a couple of weeks before that and then a time before that and they drank beer and just mouthed about the car.” She also did not know (or remember) the driver’s name although she had previously heard it. She described him as having long, blonde, shaggy hair, being kind of dirty, and that he did not have a beard, but possibly he had a mustache. [Officer Dowdell testified that he observed that the driver of the car had dark hair (brown or black) when it passed in front of his headlights on Blue Ridge Cut-off.] In 5 or 10 seconds Laura reached the front door of the house after the car stopped, and that its driver jumped out of it and ran across the street where he sat in his Pinto with its motor running and its headlights off. She saw the Pinto leave in the direction the officers were coming.

The circumstances leading up to the finding by the officers of appellant at the wheel of his car compel the drawing of the clear inference that he had been driving it during the high speed chase. Any other conclusion would have required the court to disregard the positive testimony of the officers that as they chased the vehicle it was in their view at all times; that they saw it pull up to the Corrington address and stop; that they saw no one emerge from the driver’s side of the vehicle where they found appellant; and that they observed no other vehicles move or leave the area of arrest. The court would have been further required to accept as true the version of appellant, and that of his witness, Laura, that there was an unknown third person who had been driving appellant’s vehicle and who fled from the scene in his Pinto ear. In its function of judging the credibility of witnesses and the conflicts in evidence, the court was not required to accept appellant’s version of the facts. The testimony of the chasing officers that the vehicle was never out of their sight distinguishes factually this case and Kansas City v. Stamper, 528 S.W.2d 767 (Mo.App.1975), where the circumstantial evidence was held insufficient to sustain the conviction. Other cases which are cited by appellant are inapposite factually and state merely the general rules of treatment of circumstantial evidence: State v. Canon, 486 S.W.2d 212 (Mo.1972); State v. Morse, 515 S.W.2d 608 (Mo.App.1974); and State v. Dupree, 477 S.W.2d 129 (Mo.1972). More in point are the City’s cited cases: State v. Maxie, 513 S.W.2d 338, 341 (Mo.1974), where it was said, “In a case involving circumstantial evidence, circumstances need not be absolutely conclusive of guilt and need not demonstrate impossibility of innocence * * ”; State v. Gamache, 519 S.W.2d 34 (Mo.App.1975), where it was noted that any evidence showing any form of affirmative participation is sufficient. The trial court did not err in overruling appellant’s motion for judgment of acquittal.

Without citation of authority, appellant in his Point II says the City did not meet its burden of proof in establishing intent beyond a reasonable doubt. Kansas City v. Thorpe, 499 S.W.2d 454 (Mo.1973), controls in its holding that intent could be deduced or inferred from the surrounding circumstances in the case, and that it is for the trial court to determine which inference should be drawn. Here the vehicle was being driven initially above the speed limit, and when pursued, it accelerated. Intent to evade the officers, and to speed, is clearly in the case. Point II is overruled.

Appellant’s Point III is that the court abused its discretion in not reconsidering the sentence imposed because it did not consider the severity of the violation, appellant’s past record or the hardships occasioned by the imposition of such a harsh sentence. Suffice it to say that See. 34.376 of the City’s Revised Ordinances authorizes as a maximum a fine of not more than $500.00, and/or imprisonment for six months. The imposition of these concurrent 15 day sentences are much less than the maximum that the court, in its discretion, could have imposed; and of course they are within the range of punishments authorized by the ordinance. Appellant will have to serve his full 15 day imprisonment, unless upon his application, and in the exercise of the trial court’s discretion, he shall be found eligible for and be granted participation in a work-release program. It is noted that in appellant’s motion for new trial he states that he was employed full time and supported another individual.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: TURNAGE, Presiding Judge.

license: Public Domain

text:
    George W. NIGH and Twila J. Nigh, Respondents, v. Marvin HICKMAN, Appellant.
    No. KCD 28055.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Ronald A. Barker, Andrew A. Krohn, Barker & Krohn, Princeton, for appellant.
    R. E. Moulthrop, Bethany, for respondents.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Suit in specific performance to enforce the provisions of a contract for the sale of real estate after the buyer was late with an installment payment and the seller refused to accept such payment. The trial court granted specific performance. Affirmed.

Marvin Hickman owned 120 acres and agreed to sell the same to George Nigh and his wife. Nigh made a downpayment and was to pay the balance in 10 annual payments on November 1 of each year. The contract did not specifically provide that time was of the essence, but it did provide that if any payment was not made when due, then Hickman had the right to declare the contract null and void, to reenter and take possession and to retain all payments made by Nigh as rent.

After Nigh took possession, he made the first two installment payments prior to the November 1 due date. However, the next installment was not paid by November 1, but on November 15, Nigh attempted to make the payment at the bank where payments were made. The bank refused, on the instruction of Hickman, to accept such payment. Nigh then attempted to make the payment direct to Hickman, but was refused.

Shortly thereafter Nigh contacted an attorney who wrote to Hickman and offered to pay the entire balance due. This likewise was refused. Thereafter Nigh filed suit asking for specific performance of the contract and paid the entire balance due into court. Nigh also asked that a quit claim deed to Hickman, which he and his wife executed at the time of the contract and placed in escrow, be annulled. Hickman had this deed recorded after the payment in question was not made on time.

On this appeal, Hickman contends the court erred in decreeing specific perform-anee and in annulling the quit claim deed because the provisions of the contract were tantamount to making time of the essence of the contract, and since the installment in question was not timely made, and under the terms of the contract Hickman had the right to declare the contract null and void and to terminate all rights which Nigh had in the land. Hickman further contends Nigh gave no reason for failure to make the installment payment on time and this gives Hickman the right to declare a forfeiture even though Hickman acknowledges equity abhors a forfeiture.

The applicable law in this case was declared in Parkhurst v. Lebanon Pub. Co., 356 Mo. 934, 204 S.W.2d 241 (1947). That case involved an installment contract, the late tender of an installment and the attempt on the part of the vendor to declare the contract null and void. In that case the court held it was not necessary to determine whether or not time was of the essence by the terms of the contract because as stated at 204 S.W.2d 247[8-9]: “ ‘Even where time is made material, by express stipulation, the failure of one of the parties to perform a condition within the particular time limited will not in every case defeat his right to specific performance, if the condition be subsequently performed, without unreasonable delay, and no circumstances have intervened that would render it unjust or inequitable to give such relief.’ ”

The facts of this case clearly bring it within the above stated rule. Here the delay in making the payment was 15 days and up to that point, Nigh had paid almost 35% of the purchase price. Hickman showed no change in condition or change in any other circumstances between the 1st, when the payment was due, and the 15th, when it was tendered, which would make in inequitable on him to grant Nigh the relief sought. The delay in making the payment was certainly not unreasonable.

It was stated long ago in O’Fallon, Jr. v. Kennerly, 45 Mo. 124, 127 (1869): “There is no doubt that equity may decree a specific performance of a contract for sale of property, notwithstanding a default m payment upon the day specified.”

An extensive annotation on this question appears in 55 A.L.R.3d 10.

As in Parkhurst it is not necessary to decide if time were of the essence because Hickman has not attempted to show any change of circumstance which would make it inequitable for the court to order the performance of this contract. On the other hand, Nigh has shown considerable harm resulting to him if the court refused to grant relief. In that circumstance, the court was correct in ordering specific performance of the contract and in declaring the quit claim deed from Nigh to Hickman null and void.

No error of law appears. The judgment is affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. Brenda F. GARNER, Appellant.
    No. KCD 28135.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

A jury'in the Jackson County Circuit Court found Brenda F. Garner guilty of stealing property valued at over $50.00. §§ 560.156, 560.161 1. (2), RSMo 1969. Acting under the Second Offender Act, the trial court assessed punishment at four years’ imprisonment. This appeal followed.

Inasmuch as appellant attacks the sufficiency of the state’s evidence, a detailed statement of the evidence (taken largely from respondent’s brief) is necessary. All evidence came from State’s witnesses. Appellant presented no testimony.

Phillip Gicalone, a security officer at Stix, Baer and Fuller’s Department Store on Ward Parkway in Kansas City, testified that at approximately 5:30 p. m. on October 17, 1974, he saw the appellant and another woman enter the store through the mall entrance, proceed to the escalator which was located near the center of the store, and ride to the second floor. Neither woman was carrying or wearing a coat or jacket when seen by Gicalone.

Approximately fifteen minutes later, at 5:45 p. m., the appellant and her companion were seen by Ann Smith, another security officer, boarding the escalator on the second floor of the store, and preparing to descend to the mall level. One of the women was carrying a gold leather coat over her arm; the coat was rolled inside out. The appellant and her companion rode the escalator down to the mall level, and walked west through the cosmetic department toward an exit.

Five or ten minutes later, Ms. Smith saw both women returning through the cosmetic department toward the escalator. Again, neither was wearing or carrying a coat. The appellant and her companion again rode the escalator to the second floor and headed toward the Junior Sportswear Department, where leather coats were on display.

Ms. Smith left to summon the store security manager, Daniel Anderson. She estimated that the appellant and her companion were out of her sight for approximately three or four minutes during this time. Shortly after she returned with Anderson, she saw the appellant and her companion leaving the Junior Sportswear Department, each carrying a green leather jacket over her arm; both jackets were folded inside out. Anderson and Ms. Smith followed the appellant and her companion down the escalator to the mall level. The two women stepped off the escalator, made a U-turn and headed for the mall exit. When they saw Anderson, the two women started to walk in different directions; however, both were stopped by Anderson before they could leave the store.

The appellant told Anderson that she had purchased the coat at Stix, Baer and Fuller’s Independence store. She also pointed to some little blue “squiggles” on the collar of the jacket she was carrying, and stated that she had placed those marks there to identify her jacket. An examination of the remaining leather jackets in stock in the Junior Sportswear Department revealed that they had the same markings.

Anderson testified that, after being summoned from his office by Ms. Smith, he went upstairs and proceeded in the direction of the Junior Sportswear Department, where he saw the appellant and her companion standing with their backs to him, facing a circle rack of leather coats. The appellant was carrying a green leather jacket folded over her arm, inside out; the other woman was in the process of taking a coat off the hanger. The second woman (Ms. Tarry) placed the coat over her arm in the same manner as the appellant, and slipped the hanger under another coat.

The two women then proceeded toward the escalator, passing at least one cash register. Anderson followed them down the escalator, and when the woman noticed that he was following them, they began to walk more quickly. Anderson caught up with them as they started to split up, and informed them that he “wanted to talk to them about the possibility of wrongful taking of merchandise from Stix, Baer and Fuller.” The appellant immediately volunteered that it “was kind of ridiculous to be arrested for stealing her own coat.”

On cross-examination, Anderson stated that from the time he first saw the appellant and Ms. Tarry, they were not out of his sight for more than five or ten seconds. He also testified that when the coats were taken from the two women, the sale tags were missing.

Debbie Dillon, manager of the Junior Sportswear Department, testified that she saw the appellant and her companion standing by the coat rack with leather coats folded over their arms. After the two women left her department, she went to the coat section and counted to see if any coats were missing. Her investigation revealed four empty hangers; however, no leather coats had been sold that day. Ms. Dillon also noted that the plastic fasteners, which kept the coat hangers attached to the rod, were not severed, as they would have been if the coats had been sold by one of the sales clerks. Ms. Dillon testified that the coat in the possession of the appellant had a wholesale value of $59.75 and a retail value of $120.00.

On cross-examination, Ms. Dillon stated that State’s Exhibit 2, the coat found in the possession of the appellant, came from the Stix, Baer and Fuller store in Ward Parkway. She stated that she could prove that it was in her stock because “I counted the coats, I know that it is my coat.” She added: “And I know it was in my stock.” Ms. Dillon also stated, however, that there was no way she could prove she had that particular coat.

Nancy Breidenback, merchandise coordinator at the Stix, Baer and Fuller store in Independence, testified that the particular kind of coat found in the possession of the appellant had never been carried by the Independence store.

Carl Jackman, a Kansas City, Missouri police officer, was called to the scene, and took possession of the two coats. He testified that the appellant stated that she had purchased the coat from the Stix, Baer and Fuller’s Independence store. Another Kansas City police officer, Cecil Stockdale, Jr., questioned the appellant at the scene after advising her of her constitutional rights. The appellant told Officer Stockdale “that she had gone to Stix, Baer and Fuller with the intention of stealing something, but [that] she was arrested before she had a chance to do so.” Again she stated that the jacket in her possession had come from the Stix, Baer and Fuller store in Independence.

Although the information charged appellant with stealing two coats, either acting alone or in concert with another, the ease was submitted to the jury on a charge of stealing one coat by appellant. After ten minutes’ deliberation, the jury returned a verdict of guilty.

Appellant first contends that her motion for judgment of acquittal should have been granted because the state adduced insufficient evidence upon which to predicate a finding of guilt. Appellant contends that the state failed to prove the corpus delicti and further that even if it did so, it failed to prove that the loss was due to appellant’s criminal activity.

On the first aspect, appellant challenges the adequacy of Ms. Dillon’s testimony to show that the loss of the four coats she testified were missing was due to criminality. Appellant questions the frequency of the inventory check, relied upon by Ms. Dillon, as evidence that four coats were missing. The witness stated that she made a count every day. She questions the accuracy of the inventories. No questions along that line were propounded to the witness. However, her testimony would support the conclusion that her method of operation and checking had been sufficient to permit her to keep track of the stock of merchandise. Appellant suggests that the missing coats could have been taken to another rack by sales personnel. However, this possibility was negatived by the witness’s testimony that had sales personnel removed the coats, they would also have removed the hangers.

Appellant’s argument ignores entirely the evidence that appellant’s companion was seen removing a coat from the rack. It ignores the evidence that, having entered the store without a coat, appellant was standing at the rack with a coat of the style and manufacture of the coats displayed on the rack. Appellant emphasizes Ms. Dillon’s statement that there was no way by which she could “prove” that the particular coat in appellant’s possession had been in her stock. Again, however, this contention ignores the witness’s statement: “I know it was in my stock.” The witness’s statement that she couldn’t “prove” it was was based upon the absence of the store’s tag from the coat. Such acknowledgment, however, would not preclude the jury’s finding, beyond a reasonable doubt, on the basis of all of the evidence, that the coat had been taken from the sales rack.

Appellant would liken her case to that of State v. Celmars, 399 S.W.2d 145 (Mo.App.1966), in which the court held that the corpus delicti had not been shown in a “shoplifting” case. In that case, the articles involved were cigarettes. The defendant was found with sixteen cartons of cigarettes on a parking lot, across the street from a store where he had been seen, behaving somewhat suspiciously, some 12 minutes earlier. Several cartons of cigarettes were in a bag bearing the name of the store. However, although the cigarettes were identified as having come from the store, store employees testified that they could not tell whether or not they had been stolen or purchased. The store manager stated that he did not know of any merchandise having been stolen from the store on the day of the incident.

The court concluded that there was no evidence, direct or circumstantial, to show that the cigarettes had been stolen. There was such evidence in this case. The state’s evidence showed that four coats were missing from the rack and that none had been sold. Appellant was seen standing at the rack holding a coat of the type displayed for sale. This case is clearly distinguishable from Celmars.

Appellant further contends that even if the corpus delicti was proved, there was insufficient evidence to prove that the loss was due to appellant’s criminal activity. This argument is without merit. No one did testify that they saw appellant take the coat off the rack. However, appellant was seen in the immediate vicinity of the rack from which the coats were missing. Appellant argues that Mr. Anderson testified that she was out of his sight for only five to ten seconds and that this was too short a time to have permitted removal of the coat from the rack and also removal and disposition of the sales tags. This argument misreads Anderson’s testimony that appellant was holding the coat when he first saw her.

Appellant’s argument ignores the appellant’s statement to Anderson, a statement which recognized, without statement from Anderson, that she was aware that her possession of the coat was the matter Anderson wanted to discuss with her. It also ignores the state’s evidence which showed that appellant’s statement that she had bought the coat at Stix’s Independence store was untrue.

The circumstances of the case were such that a jury could conclude beyond a reasonable doubt that appellant had taken the coat. The fact that she passed the check station where she might have evidenced an intention to purchase the coat could be considered along with the statement of appellant in concluding that she took the coat with intent to steal it.

The state’s evidence was not required to negative every possible theory of innocence, only reasonable hypothesis of innocence. State v. Brunson, 516 S.W.2d 799, 803[6, 7] (Mo.App.1974). The state’s evidence here met the requirement.

Appellant challenges the adequacy of the charge under the Second Offender Act and the sufficiency of the evidence in support thereof.

The information charged that “Brenda F. Garner, a/k/a Brenda A. Haywood * * *, on the 5th day of December, 1969, at the District of Johnson, State of Kansas, was convicted of forging a credit agreement; that thereafter on the 5th day of February, 1969 said defendant was sentenced to not less than one nor more than seven years at hard labor or until legally discharged, at the Kansas State Industrial Farm for women at Lansing, Kansas; that thereafter on the 19th day of February, 1969 said defendant was placed on parole for a period of five years, * ⅜ ⅜.”

Appellant contends that the information fails to charge a prior conviction and subsequent sentence as required by § 556.280, RSMo 1969, because it charges a conviction on December 5, 1969, and a sentence on February 5,1969, a date prior to, not subsequent to, the date of the alleged conviction.

Section 556.280 does require a conviction for an offense and that the defendant “shall be sentenced and subsequently placed on probation, paroled, fined or imprisoned therefor, * * She contends that the information here does not charge a subsequent sentence and probation, but charges a sentence and probation ten months prior to the alleged conviction.

Although Section 556.280 is “highly penal and * * * must be strictly construed” (State v. Hacker, 291 S.W.2d 155, 157 (Mo.1956)), there is no requirement that such charge in an information be treated differently from other matters required to be stated in charging an offense. “Where it is sought to charge accused as an habitual criminal, the indictment or information should contain whatever allegations may be essential under the particular statute controlling, and its sufficiency will be determined in the light of the general rules of criminal pleading.” 42 C.J.S. Indictments and Informations § 145(2), p. 1065 (1944). See State v. Ellifrits, 459 S.W.2d 293 (Mo. banc 1970).

This rule would allow application of the Statute of Jeofails (§ 545.030, RSMo 1969), now incorporated in Rule 24.11 to the Second Offender portion of indictments and informations. Among the provisions of that statute are the following:

“1. No indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected: * * * * * *
“(5) For omitting to state the time at which the offense was committed, in any case where time is not of the essence of the offense; nor
“(6) For stating the time imperfectly; nor
“(7) For stating the offense to have been committed on a day subsequent to the finding of the indictment or information, or an impossible day, or on a day that never happened .
# * ⅝ ⅜ * *
“(18) For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

Applying these provisions, in State v. Smith, 237 S.W. 482, 484[1] (Mo.1922), the court refused to invalidate an information charging an offense to have occurred six months after the filing of the information. In State v. Feitz, 154 Mo.App. 578, 136 S.W. 746 (1911), an indictment charging an offense to have occurred prior to the effective date of the law involved, as stated in the charge, was upheld. In both cases, the obvious clerical error in the dates of the offense charged was held to have been cured. Here, the date of conviction of the Kansas offense was obviously a clerical error, inasmuch as the conviction must precede the sentencing and probation. Such error did not invalidate the Second Offender charge.

This claim of error is without merit.

The sufficiency of the evidence to support the Second Offender charge is also challenged. In support of the charge, the state produced a certified copy of a journal entry of the Johnson County Kansas District Court, which recited among other things the following:

“Now on this 5th day of February, 1969, this matter comes on for arraignment.
“The Information is read and defendant enters a plea of guilty to Count I: Thereupon, the State dismisses Counts II and III of the Information as read. * * *
“Thereupon, the Court accepts defendant’s plea of guilty and no legal cause shown and none appearing or found by the Court, pronounces the following sentence:
“IT IS THE JUDGMENT, SENTENCE AND ORDER OF THE COURT that the defendant, Brenda Ann Haywood, be and she is hereby sentenced to a term of not less than one nor more than seven years at hard labor or until legally discharged, at the Kansas State Industrial Farm for Women at Lansing, Kansas, for forging a credit agreement in violation of K.S.A. 21-616 sentencing provision being set forth in K.S.A. 21-631.
“Upon defendant’ oral motion, execution of sentence is stayed until 3:00 P.M. this date for application for probation.
“Now on this 19th day of February, 1969, appearances being the same as above, this matter comes on for the decision of the Board of Paroles of the District Court of Johnson County, Kansas.
“IT IS THEREFORE BY THE BOARD OF PAROLES OF THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS ORDERED that defendant’s application for parole be granted and defendant be paroled for a period of five years, subject to the conditions of subsequent Order of Probation.”

Detective Stockdale of the Kansas City Police Department testified: “Brenda Haywood was a defendant whom I testified against yesterday, she’s also known as Brenda Garner. * * * I know Brenda Garner and Brenda Haywood as being the same person.” In response to a question from defense counsel, the officer stated that he could not swear that Brenda Garner is the person referred to in the Johnson County Court record. He said, “I cannot say that by reason of that document, no.”

The state invokes the rule that identity of names of a person charged and of a person for whom a record of prior conviction has been produced is sufficient to make a prima facie case for identification of the defendant as the subject of the prior conviction. State v. Cook, 463 S.W.2d 863, 868[6-8] (Mo.1971); State v. Harris, 452 S.W.2d 577, 578[2] (Mo.1970); State v. Williams, 376 S.W.2d 133, 135[4, 5] (Mo.1964).

This is, however, not the usual case for application of this rule. Here the conviction was not of a person of the same name as the defendant in the original charge. The conviction was in the name of an alias, stated in the amended Second Offender charge. To bridge that gap the state offered only the testimony of the Kansas City police officer that Garner was known to him as Haywood. He acknowledged, however, that he did not know that the Brenda Garner on trial had been convicted of forging a credit agreement in Kansas on February 5, 1969, as Brenda Haywood. Nor did the officer testify that he knew Garner as Haywood at or around the time of such conviction. The record is bare as to the time and basis of such knowledge.

Whenever the state seeks to invoke the Second Offender law, it assumes the burden of proving beyond a reasonable doubt the facts required by that law. State v. Martin, 336 S.W.2d 394, 397[5] (Mo.1960). Thus, here the state had such burden in proving that Brenda Garner was the same person as Brenda Haywood. The state’s evidence showed only that Garner was at sometime or another known to the officer as Haywood, but it failed to show that Garner had been convicted as Haywood. This court will not extend the identity of names rule to apply in this case. Some further identification of the defendant as the person convicted under an alias is necessary. See State v. Trevino, 428 S.W.2d 552, 554[2, 3] (Mo.1968).

The contention that the proof varied from the charge is without merit. As previously pointed out, the date of conviction stated in the information is clearly a clerical error. The evidence of conviction and probation was adequate.

Counsel on appeal has conjured up numerous problems which the error might have caused in attempting to prepare a defense against the Second Offender charge. The possibilities are premised upon the theory that in preparing a defense, only the date of the alleged conviction would have been considered. In view of the other matters accurately stated in the charge, it could hardly be presumed that counsel would limit inquiry to the only erroneous date. Certainly, in this case, trial counsel, different from counsel on appeal, never suggested that he had been misled or prejudiced by the erroneous recital.

Because of the insufficiency of the evidence to prove beyond a reasonable doubt that defendant was convicted of an offense which subjects her to the Second Offender Law, “ * * * the sentence herein is declared void, the judgment is reversed and the cause remanded with directions to the court to cause the defendant to be brought before it to hold a hearing on the issue of former conviction of defendant and if proved to pronounce sentence and judgment against defendant taking all proper procedural steps required therefor by law and the rules * * * but in the alternative if the issue of former conviction be found in favor of defendant to grant [her] a new trial on all issues.” State v. Hill, 371 S.W.2d 278, 283 (Mo.1963).

Reversed and remanded.

All concur.


text:
    STATE of Missouri, Respondent, v. Louis CHARLES, Appellant.
    No. KCD 28147.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Richard G. Poland, Cameron, for appellant.
    John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

In a trial to the court, a jury being specifically waived, appellant was convicted of the commission of the crime under § 544.665 RSMo (Laws 1972, p. 1027, § 1), of willful failure to appear for trial of a felony charge for operating a confidence game. The court imposed punishment at four years imprisonment in the Department of Corrections.

The facts are these: Appellant was originally charged with operating the confidence game (a shell game) by which he realized $4,500. The events charged were said to have occurred on July 31, 1973. After preliminary hearing appellant was bound over to circuit court for trial which was first set for February 19, 1974. On that day the parties, by counsel, mutually applied for a continuance upon a statement of appellant’s illness, which continuance was granted to March 12, 1974. On that day counsel appeared without appellant and the case was set for trial for May 13,1974, and notice of the trial setting was mailed to counsel and to appellant, 3530 East Texas Freeway, Apartment 7, Houston, Texas, by the clerk of the court.

In magistrate court, appellant’s bail bond was first set at $25,000, then reduced to $15,000, and ultimately to $10,000. Forfeiture proceedings for appellant’s failure to appear were had, and final judgment of forfeiture was entered against the surety, Resolute Insurance Company, for $10,000. That company by its attorney, Jerry Don-nelly, appeared in court June 6,1974, and at his request a continuance was granted to the day of the judgment of forfeiture.

There is no question but that appellant had actual knowledge of the trial setting. On Monday, May 18, 1974, Mr. Donnelly appeared as appellant’s counsel, but appellant did not appear. Mr. Donnelly informed the court that appellant had called him “personally late Friday evening and indicated to me that he was in poor health and had an ulcer condition. He stated he had no money with which to buy a plane ticket and also needed a plane ticket for his girl friend who was supposed to be a witness for the defense. I told him that the matter had been continued previously and I did not believe that Mr. Paden or the Court would go along with further continuances, and that he should be here regardless of what it took to get here.” Mr. Donnelly then called the bondsman, Mr. Gene Doane, who told him he would pay for the plane ticket to get appellant and his girl friend there for trial. Doane called, but did not reach appellant personally, but did leave word with the girl friend that the plane tickets would be available at the Houston airport. Mr. Donnelly was never again contacted by appellant, but Doane called him the night before May 13,1974, and told him he had conferred numerous times with appellant’s girl friend, Janie May Adams, and Doane felt reasonably sure that appellant knew the plane tickets were available.

Mr. Paden, the prosecuting attorney, told the court that on the morning of May 13, 1974, while Mr. Donnelly was in his office, a person representing himself to be an attorney in Houston, Texas, called him stating that appellant was then in his office and requested a continuance. Mr. Paden advised the lawyer that the state would not agree to any continuances, and bond forfeiture would be initiated, and warrants for appellant would issue. The court did that day issue a warrant for appellant’s arrest.

The Sheriff of DeKalb County, Missouri had appellant in his custody on the confidence game charge, but subsequently released him on bail bond being made. The next time he saw appellant was some two months before the instant trial in 1975 when he went to Chicago and took charge of him as the result of extradition proceedings. It is stated in the record that appellant was acquitted of the charge of operating a confidence game.

Appellant’s first subpoint of Point I is that the trial court erred in finding him guilty of “willfully failing to appear” since there was no evidence of “willfullness.” It is argued, citing United States v. Reed, 354 F.Supp. 18 (D.C.Mo.1973), that mere proof of nonappearance for trial standing alone is insufficient to establish that a defendant, charged under the federal nonappearance statute, “willfully” failed to appear. Coupled with this argument is the contention that the unsworn statements of appellant’s counsel, and the other hearsay statements bearing upon appellant’s knowledge of the trial date, cannot be considered. These un-sworn statements of counsel and other hearsay statements, were contained in the court’s records, offered and received into evidence without objection. As noted, it was appellant’s own counsel who made the statements to the court, and the quote from State v. Levy, 262 Mo. 181, 170 S.W. 1114, 1117 (1914), set forth in State v. Jacks, 525 S.W.2d 431, 434 (Mo.App.1975), is applicable to the situation here: “ ‘Courts are warranted in acting upon the admissions of counsel in the trial of a cause. They are officers of the court, and represent their clients, and their admissions thus made bind their principals.’ ” The statements of appellant’s counsel, and other hearsay statements, being certainly not without probative value on the issue of appellant’s actual knowledge of the trial date, being admitted without objection, were in the case for all purposes to be considered by the trial court. State v. Bradley, 515 S.W.2d 826, 828 (Mo.App.1974) and cases cited. The argument is without merit, and what has been said disposes of appellant’s second subpoint to Point I that the state failed to prove that he had actual notice that he was to appear for trial on May 13, 1974. Buttressing this holding is the additional evidence in the court’s record that the clerk mailed a copy of the order setting the case for trial to appellant. This creates a rebuttable presumption that the mailed matter was subsequently received. Hall v. American Insurance Union, 27 S.W.2d 1076, 1078 (Mo.App.1930); Williams v. Northeast Mutual Insurance Association, 51 S.W.2d 142, 143 (Mo.App.1932); State v. Euge, 349 S.W.2d 502, 506[9] (Mo.App.1961); and U. S. v. Garrity, 433 F.2d 649, 652[4] (8th Cir. 1970).

As to the state’s showing that appellant “willfully” failed to appear for trial, that quoted term was defined in the recent case of State v. Adams, 532 S.W.2d 524 (Mo.App.1976), as simply meaning intentional. See also 8 C.J.S. Bail § 51(2), p. 150; People v. McCaughey, 261 Cal.App.2d 131, 67 Cal.Rptr. 683 (1968); Parrott v. State, 522 P.2d 635 (Okl.Cr.1974); People v. Davis, 168 Misc. 511, 5 N.Y.S.2d 411 (1938); United States v. Wetzel, 514 F.2d 175 (C.A. 8th 1975); United States v. DuPugh, 434 F.2d 548 (C.A. 8th 1970); United States v. Currier, 405 F.2d 1039 (C.A.2d 1969); Gant v. United States, 506 F.2d 518 (C.A. 8th 1974); People v. Lawson, 16 Ill.App.3d 61, 305 N.E.2d 594 (1973), construing statutes similar to § 544.665, supra, as to the meaning of “willful.” The evidence is sufficient to sustain the trial court’s finding that appellant, knowing of the trial setting, intentionally and deliberately failed to appear for trial.

Appellant’s last point is that the court erred in receiving the testimony of Sheriff Esely that he went to Illinois to pick up appellant in 1975, “and in receiving and considering said evidence as proof of unlawful intent in connection with an offense allegedly occurring May 13, 1974, * The court did admit the evidence for the stated reason, “I think the whereabouts of the defendant would go to the question of his intent and willfully violating this provision.” In that observation and ruling the court was precisely correct. After failing to appear for trial, appellant continued to absent himself, and never did return to Missouri in any attempt to absolve himself of the charged violation of the statute. His originally formed intent not to show up for trial must be considered to have continued up to the time he was extradited. Analogies are in the cases holding that flight from the jurisdiction is evidence bearing upon the criminal intent of a defendant, done for the purpose of avoiding prosecution. See People v. Colmey, 117 App.Div. 462, 102 N.Y.S. 714 (1907); State v. Foster, 80 N.H. 1, 113 A. 211 (1921); Johnson v. State, 120 Ga. 135, 47 S.E. 510 (1904); Brown v. State, 143 Tex.Cr.R. 358, 158 S.W.2d 1018 (1942); and note State v. Adams, supra, holding that testimony that defendant was apprehended at O’Hare Airport in Chicago after having failed to appear was deliberate and willful, the result of a plan or design to evade incarceration. Note also United States v. Dorman, 496 F.2d 438 (C.A. 4th 1974), holding that where defendant was apprehended beyond the geographical limits of his bond (as is the evidence here) it was evidence of his willful failure to appear; and United States v. Hall, 346 F.2d 875 (C.A. 2nd 1965), where fleeing 5,000 miles was held to be evidence that defendant’s failure to appear was willful. By reason of the foregoing authorities, appellant’s last point is ruled adversely to him.

The judgment is affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. Willis J. WILLIAMS, Appellant.
    No. KCD 28152.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Robert Beaird, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Jefferson City, Douglas Mooney, Asst. Atty. Gen., for respondent.
    Before TURNAGE, P. J., and ROBERT R. WELBORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from conviction by a jury of possession of more than 35 grams of marijuana. §§ 195.017, 195.200, RSMo 1969. The questions are whether the court abused its discretion in excusing a venireman and in limiting defendant’s right of cross-examination. Affirmed.

Appellant does not attack the sufficiency of evidence to sustain the conviction. The record contains evidence to show that: On November 1, 1974, at around 10:00 p. m., Patrolman Ronnell Foster, while engaged in a pedestrian check in front of the Byron Hotel, 29th and Prospect, Kansas City, Jackson County, Missouri, observed defendant walking toward him with a clear plastic bag protruding from under his jacket. The bag contained a green, leafy substance which he believed to be marijuana. Patrolman Foster called to defendant as he passed on the sidewalk. Defendant turned and started to run. Patrolman Foster grabbed defendant and spun him around against his patrol car, and defendant crouched down and dropped the bag next to the police car. Patrolman Foster arrested defendant and found an additional bag of marijuana in defendant’s jacket pocket. Chemical analysis of the two bags by Gary Bafus of the Regional Crime Laboratory showed that they contained a total of 205.7 grams of marijuana.

Defendant denied possession of the marijuana, and asserted he was manhandled without provocation. Jacquliene Williams, Mary Armstrong, Elaine Davis, and Paul Sutherland stated that defendant did not have any marijuana on him during the evening in question.

Appellant charges the court abused its discretion and erred in excusing Venireman McCrary “because there was no evidence * * * indicating that said Venireman was in any way unqualified to serve as a juror.”

The voir dire examination contained the following:

“MR. ELY [for the State]: * * * Now, in this particular case I have one question * * *. That question involves the very reason why we are here; marijuana. Now, is there any member of the jury panel who feels for any reason that marijuana or the possession and use of marijuana, should be decriminalized; that it should have no criminal penalty? * * *
“VENIREMAN: Sandra S. Clayton.
“MR. ELY: Now, Mrs. Clayton, since you feel that marijuana should be decriminalized would you be able to listen to the evidence in this particular case, and if you were instructed, as you will be, by the Court, if you were to sit as a juror, that upon a finding of guilty, that this particular defendant had marijuana in his possession, that you would have to impose some sort of criminal penalty and that criminal penalty would range from one day to one year in the county jail, or a fine fixed by you but not to exceed $1,000, or from two years to five years in the Missouri State Penitentiary? Now in light of the fact that you believe it should be decriminalized, would you assess such a penalty? VENIREMAN CLAYTON: I’m not sure I would.
“THE COURT: All right, Mrs. Clayton. You will be excused.
“MR. ELY: Is there any other person who feels the same way * * * ? VENIREMAN McCRARY: Yes. MR. ELY: Do you feel the same way? VENIREMAN McCRARY: Very same way.
“MR. BEAIRD [for Appellant]: Your Honor, could I engage in a preliminary question before he is struck for cause? THE COURT: Very well. * * * MR. BEAIRD: The prosecutor has outlined the bounds of punishment here. Now, let me be certain of this. If you felt that after the evidence was in and a verdict of guilty was warranted — in other words, there was a law existing against possession of marijuana, and it was proved that Mr. Williams did have this marijuana, could you then bring in a punishment of, say, ten dollars? VENIREMAN McCRARY: Yes.
“MR. BEAIRD: Based on this, Your Honor, it is the defendant’s position that he is capable of returning a verdict within the range of punishment and cannot be properly struck for cause. THE COURT: I don’t agree with you, counsel. Mr. McCrary, you are excused.”

Appellant argues that it was “imperative to ask whether [Mr. McCrary’s] general philosophical position would preclude his following the law as given to him in the instructions. Such a question was not forthcoming from either the State or the Court [or from the defendant]. * * * The question of whether the venireman would have shunned a higher penalty was never presented; the Court’s arbitrary action terminated all further inquiry.” He argues also that the court’s action gave the panel an impression that the only proper penalty was jail time and thereby deprived him of an impartial jury.

Appellant cites the general rule that: “Ordinarily an opinion as to the penalty that should be imposed in case accused is guilty does not disqualify a juror * *.” 50 C.J.S. Juries § 245, p. 1000. More important to the resolution of the issue in this case are the rules that the trial court is vested with discretion in determining competence of jurors; that its rulings need not be limited to strict terms of governing statutes; that a juror may be excluded if he lacks any of the ordinary qualifications which the court in its discretion may deem sufficient to render him an impartial juror, State v. Lewis, 323 Mo. 1070, 20 S.W.2d 529 (1929); and that the trial court has discretion in determining qualifications of jurors and its decisions will not be disturbed unless such discretion was abused, State v. Boothe, 485 S.W.2d 11 (Mo. banc 1972).

Mr. McCrary’s adoption of the position of his fellow venireman shows a personal and philosophical difficulty in dealing with a prosecution for possession of marijuana. His expressed willingness to impose a fine of $10 in a case in which he was advised that punishment ranged from imprisonment for two to five years or jail confinement for one day to one year, or a fine not to exceed $1,000, or both such fine and confinement, did not demonstrate that he was able to consider the full range of punishment or to follow the court’s instructions; and there is no indication that counsel was precluded from further pursuit of the matter.

Accordingly, it may not be said that the court abused its discretion in excusing Mr. McCrary for cause. State v. Boothe, supra. See also People v. Asher, 32 Mich.App. 380, 189 N.W.2d 148 (1971), which was also an appeal from conviction of possession of marijuana and appellant charged that the court erroneously excluded a venireman for cause when she advanced an opinion that marijuana was not a dangerous drug and, as a result, she would have difficulty enforcing the drug laws. The court held that the trial court’s concern that such venireman’s distaste for the drug laws would have influenced her decision was legitimate and well founded. In its denial of appellant’s position, the Michigan court considered Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), cited also by Appellant Williams, and found that it did not control the present question. The court held also that a “Defendant’s right to an impartial jury does not encompass the right to a juror who would find it difficult to convict defendant under any circumstances.” 189 N.W.2d l.c. 153[6].

Appellant charges the court erred in sustaining a State’s objection to defense counsel’s cross-examination question of Patrolman Foster.

Appellant asserts that part of his defense was that Patrolman Foster planted marijuana on the defendant as a “cover-up” of an unprovoked attack. The following occurred.

“Q. (By Mr. Beaird) * * * have you ever carried marijuana in your car?

“MR. ELY: Objection, Your Honor. The same objection. It is an insult to this officer’s credibility and his honesty to suggest some of the things that Mr. Beaird is, at least, attempting to suggest. THE COURT: I don’t know what he had in mind but the objection is sustained.

“MR. BEAIRD: That’s all the questions I have.”

Appellant concedes his question “could have been more artfully put, but, nevertheless * * * feels that it was quite evident what the import of the question was intended to be.” He argues that the court so unreasonably and narrowly confined his cross-examination as to frustrate the search for truth. See, e. g., State v. Summers, 506 S.W.2d 67 (Mo.App.1974), where cross-examination of self-confessed accomplice witnesses directed toward showing that they had committed criminal offenses, the common method of attacking their credibility, was unduly limited by sustaining State’s objections to such questions.

The cross-examination question in issue is vague so as to warrant the court’s statement of a lack of understanding. The court did not refuse counsel further questions which might have clarified his purpose, and, without further indication of purpose, it may not be said that the sustained objection precluded an attempt to show a plant of evidence or a cover-up. Accordingly, it may not be said that the trial court acted outside the discretion accorded in control of cross-examination. State v. Winn, 324 S.W.2d 637 (Mo.1959); State v. Johnson, 486 S.W.2d 491 (Mo.1972); State v. Summers, supra; United States v. Hester, 465 F.2d 1125 (8th Cir. 1972); United States v. Cole, 449 F.2d 194 (8th Cir. 1971).

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Tommy Turner BURNETT, Appellant.
    No. KCD 28164.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Terry E. Brummer, Columbia, for appellant.

      John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J„ and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from conviction of possession of more than 35 grams of marijuana. §§ 195.-017, 195.200, RSMo 1969. The appellant does not challenge the sufficiency of evidence except to question whether there were breaks in the chain of custody of ten bags purported to contain marijuana, State’s Exhibits 5 through 14, sufficient to render them inadmissible. Affirmed.

On September 24, 1974, at approximately 9:00 a. m., William R. Simpson informed Sergeant Bill D. Smith of the Missouri State Highway Patrol that he had just observed a man placing a large quantity of green vegetation in a van parked alongside Interstate Route 70 west of Columbia. Sergeant Smith pursued the van east on 1-70, radioed for assistance, and later stopped the van east of the intersection of 1-70 and U.S. Highway 63 South. Upon observation of the green vegetation in the van, Sergeant Smith arrested the driver, defendant Tommy Turner Burnett, for possession of marijuana. Deputy Miller and Deputy Ehrsam of the Boone County sheriff’s office assisted in stopping the van. Deputy Miller stayed with the van at the scene and when it was towed to the sheriff’s office; Deputy Ehrsam transported the defendant to the sheriff’s office; Sergeant Smith proceeded to the sheriff’s office. At the sheriff’s office, these officers locked the van and sealed it with stickers. Later in the day, Sergeant Smith, assisted by Deputy Ehrsam and Trooper Bruning, removed the vegetation from the van, inventoried it, and put it in plastic bags which were tied and marked with evidence tags. The bags were then taken to the jail garage for storage. Deputy Matney was the jailer on duty and he closed the garage door to complete the storage operation. Sergeant Smith identified State’s Exhibits 5 through 14 as “the bags that were used when we took the plant material from the vehicle and * * * put it in the bags and these are the tags that was put on them when we marked them.”

On September 25, 1974, Sergeant Smith went to the jail where Deputy Lory Rennie was present, loaded the bags, Exhibits 5 through 14, on a truck and transported them to the Trace Substance Laboratory at the University of Missouri. No one was present at the laboratory and Sergeant Smith restored the bags at the jail garage with Deputy Rennie present.

On September 26, 1974, Sergeant Smith again obtained Exhibits 5 through 14 from the jail with Deputy Rennie present and delivered them to Steve Morris at the Trace Laboratory Center.

Deputy Thomas D. Miller participated in the arrest of defendant Tommy Turner Burnett at approximately 9:15 a. m., September 24, 1974, near the intersection of 1-70 and U.S. 63 South in Boone County. Following the arrest, Deputy Miller stayed with defendant’s van and contents while it was being towed to the sheriff’s office where it was sealed and secured by Sergeant Smith.

Jailer David H. Matney was present at the jail on September 24, 1974, at approximately 5:10 p. m., when Sergeant Smith and his assistants (Deputy Ehrsam and Trooper Bruning) “unloaded a van and put eight containers of evidence in the garage,” after which he closed and locked the garage.

On September 25, 1974, at approximately 3:15 p. m., Trooper Smith came to the garage and, with jailer Matney’s help, loaded the evidence, after which jailer Matney closed the garage. At 4:50 p. m., Sergeant Smith returned the evidence and jailer Mat-ney put it in the garage and locked the door.

On September 26, 1974, Dr. Steve Morris, senior research chemist for the University of Missouri at the Environmental Trace Substance Research Center, received Exhibits 5 through 14 (ten bags) from Sergeant Smith and delivered them to Terry Baxter who does analyses for the Center.

Terry Baxter accepted the delivery of Exhibits 5 through 14 from Sergeant Smith and Doctor Morris for analysis. His analysis showed that each of Exhibits 5 through 14 contained marijuana, the total weight of which was 57,661 grams, 127 pounds. Later on September 26, 1974, due to lack of storage space at the laboratory, and after his analysis, Terry Baxter returned the evidence to the police department where it was given to Officer Heidy. In the course of the analysis, Mr. Baxter worked on ten bags of evidence material. He was assisted by Susan Bryan, his technician. She helped separate leaves from stalks and, after the analysis, helped reseal the bags.

On September 26, 1974, Detective John Heidy of the Columbia Police Department met Terry Baxter at the sheriff’s office to receive evidence that Mr. Baxter had analyzed. He received Exhibits 5 through 14 (ten bags) which he stored in the sheriff’s property locker overnight. On the following day, in the presence and with the assistance of Deputy Bruce Martin, he obtained the bags and transferred them to the basement of the Daniel Boone City-County Building for storage under lock and key. In October, 1974, Detective Heidy gave his key to the storage room to Bobbi Sue Arnold, evidence custodian for the prosecuting attorney, and on the day of trial assisted Mrs. Arnold in bringing the bags from their storage to the courtroom. The only other key was in custody of Deputy Martin.

Appellant charges the court erred in overruling defendant’s objection to introduction of State’s Exhibits 5 through 14 “because there were fatal breaks in the chain of custody of these exhibits rendering them inadmissible.” He asserts that the burden of the State in maintaining and showing a continuous chain of custody is such that it should include evidence to exclude the possibility of tampering with the evidence. He argues first that the State failed to meet that burden in that it appears that Sergeant Smith delivered ten bags of evidence to the chemist, Terry Baxter, which were allegedly taken from defendant, and Deputy Matney recorded that he received eight bags from Sergeant Smith at the time of their first storage, ergo, “Somewhere between the Boone County Jail and the Environmental Trace Substance Laboratory, two additional bags of evidence appeared.” Appellant argues also that the chain of custody was shown to have been broken by the testimony of Terry Baxter that his technician, Susan Bryan, had access to and handled some of the evidence, and that he was prejudiced when she was not called to testify.

The chain of control, custody, or possession requirement is to prevent alteration of or tampering with exhibits or any substitution. State v. Orr, 493 S.W.2d 374, 377 (Mo.App.1973); State v. Lemon, 504 S.W.2d 676, 684 (Mo.App.1973); State v. Winters, 525 S.W.2d 417, 426 (Mo.App.1975). To meet this burden, the State is not required to exclude every possibility of these occurrences, State v. Baines, 394 S.W.2d 312, 316 (Mo.1965), nor to show that some credible witness retained the exhibit in his personal possession or under constant watch, State v. Rose, 428 S.W.2d 737, 740 (Mo.1968). “All that is necessary to establish a chain of custody of an exhibit is that the evidence must afford a reasonable assurance that the exhibit was the same at trial as it was when first obtained. It is sufficient if the evidence shows reasonable assurance that the exhibit is the same and in the same condition.” State v. Rogers, 523 S.W.2d 344, 348[10] (Mo.App.1975).

Appellant’s first argument and his quoted conclusion fail to consider that Exhibits 5 through 14 started as ten bags of vegetation taken from defendant’s van, and they remained as ten bags throughout the custody chain with a single exception, the notation “eight bags” made by jailer Mat-ney. The chain, as previously detailed, meets the “reasonable assurance standard” as applied in similar cases, e. g., State v. Rogers, supra; and the discrepancy noted goes to the weight of the evidence rather than to its admissibility. State v. Thomas, 360 S.W.2d 694, 698 (Mo.1962).

In answer to appellant’s second argument, it is sufficient to observe that access to evidence by laboratory personnel other than the chemist who testified does not destroy the adequacy of the chain of custody. State v. Winters, supra; State v. McCrary, 478 S.W.2d 349, 350 (Mo.1972); State v. Foster, 490 S.W.2d 659 (Mo.App.1973).

Judgment affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    STATE of Missouri ex rel. Carolyn D. MAYWEATHER, a minor, by her guardian ad litem, James L. Baker, Relator, v. Honorable Keith P. BONDURANT, Judge Division Six, Sixteenth Judicial Circuit, Respondent.
    No. KCD 28547.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.

      James L. Baker, James L. Muller, Kansas City, for relator.
    Fred A. Murdock, Charles R. Svoboda, John A. Layton, Kansas City, for respondent.
    Before SHANGLER, Acting C. J., and DIXON, SWOFFORD, WASSERSTROM, SOMERVILLE, and TURNAGE, JJ.
   WASSERSTROM, Judge.

By application for mandamus, relator seeks an order upon respondent circuit judge to reinstate a third party petition. This court issued its alternative writ, and the cause is now presented for final determination.

Relator was originally sued in a magistrate court by the Aetna Casualty & Surety Company on a subrogation claim for property damages. That claim arose out of an automobile accident on July 16, 1973, in which an automobile driven by relator collided with that of Aetna’s insured. Relator defaulted in the magistrate court, and a judgment was entered against her from which she appealed to the circuit court.

In the circuit court relator filed by leave of Division 9 a third party petition against Automobile Club Inter-Insurance Exchange, claiming judgment against Exchange for all sums which might be adjudged against her in favor of Aetna, to the extent of the policy limits of certain insurance issued by Exchange to relator’s brother. The third party petition alleged that the brother contracted on June 20,1973, for insurance from Exchange which Exchange represented would become effective immediately; that relator was driving her brother’s automobile with his consent at the time she became involved in the collision on July 16, 1973; that notice of the Aetna claim and lawsuit was given to Exchange but that Exchange denied liability for the alleged reason that the policy by Exchange to relator’s brother did not become effective until July 18, 1973, two days after the collision.

Exchange responded to that third party petition by a motion to dismiss. That motion was sustained in Division Six of the Circuit Court. Relator filed a motion to vacate that order, but the motion was overruled. This application for mandamus followed.

Respondent claims: 1) that mandamus is not an appropriate remedy; and 2) that the third party petition attempted to be filed by relator in the Circuit Court is barred by § 512.280. (All statutory references herein are to RSMo 1969).

I.

Respondent contends that the remedy of mandamus is not available in this cause for the reason that relator has an adequate remedy by appeal. He points out that under Rule 81.06, a judgment entered by a court without a jury “of an entirely separate and independent claim unrelated to any other claims stated or joined in the case” shall be deemed a final judgment for the purpose of appeal; and he cites Hauser v. Hill, 510 S.W.2d 765 (Mo.App.1974) for the proposition that the dismissal of relator’s third party petition comes within the operation of that rule.

Even if relator has a right of appeal under the theory just outlined, nevertheless that remedy would not be adequate. Respondent overlooks that upon a direct appeal there would be no mechanics for staying the trial of the liability issue between Aetna and relator. The trial of a jury case entails a heavy financial burden which should be borne by Exchange, not relator, if the Exchange policy was indeed in effect on the date of the accident. Relator should be entitled to have that issue of insurance liability determined in advance of trial so that the burden of defense will be assumed by Exchange if relator is covered. Although Exchange might ultimately be responsible for the cost of defense if the issue of liability between Aetna and relator proceeded first, nevertheless, such ultimate declaration of liability would provide no satisfactory answer to relator’s immediate financial problem. Therefore, the remedy by appeal cannot be considered so adequate as to preempt relief by mandamus.

In any event, rightly or wrongly this court has already issued its alternative writ. The issues in this case have been fully briefed and argued orally and it would be wasteful of judicial resources to decline to proceed to a determination of the merits. The rule prevails that having possessed itself of a cause by the issuance of a preliminary writ, the appellate court as a matter of discretion will retain and decide the cause. State ex rel. v. Kirkpatrick, 504 S.W.2d 83, 85 (banc 1974); State ex rel. v. Brown, 330 Mo. 220, 48 S.W.2d 857, 860 (banc 1932); State ex rel. v. Billings, 421 S.W.2d 16, 18 (banc 1967); State ex rel. v. Grayston, 349 Mo. 700, 163 S.W.2d 335, 337 (banc 1942); State ex rel. v. Higbee, 328 Mo. 1066, 43 S.W.2d 825, 826 (banc 1931); State ex rel. v. Cowan, 232 Mo.App. 391, 107 S.W.2d 805, 808 (1937); State ex rel. v. Crain, 301 S.W.2d 415, 423 (Mo.App.1957).

II.

Turning now to the underlying legal issue, the question is whether § 512.280 still controls despite the adoption by the Missouri Supreme Court of new procedural rules effective January 1, 1974. Section 512.280, which respondent insists does still control, provides: “The same cause of action, and no other, that was tried before the magistrate, shall be tried before the appellate court upon the appeal * * Respondent points to the fact that relator did not and could not bring in Exchange as a third party defendant in the magistrate court, and he argues that § 512.280 therefore bars relator from doing so in the circuit court.

Under the law in effect prior to January 1, 1974, respondent’s argument unquestionably would have been correct. In Liberty Import Corp. v. Neuman, 234 S.W.2d 227 (Mo.App.1950), this court expressly held that in an appeal from a magistrate to a circuit court, the latter could not allow the defendant to file a third party petition, that ruling being based upon what is now § 512.-280.

However, Rule 41.01(b), effective January 1, 1974, looks to a different result. That rule provides: “Civil actions originating in the magistrate courts * * * but which are pending in the * * * circuit courts * * * shall be governed by Rules 41 through 101 * * Thus this rule provides for the first time that third party practice under Rule 52.11 shall become available in the circuit court upon an appeal from the magistrate court.

Quite obviously the result under Rule 41.-01(b) and that under § 512.280 are inconsistent and cannot stand together. One must take precedence. Another court rule, Rule 41.02, directly provides that precedence shall be given to Rule 41.01(b), since 41.02 states that Rules 41 to 101 “supersede all statutes and existing court rules inconsistent therewith.”

Notwithstanding these new rules, respondent says that § 512.280 nevertheless controls and must be given effect, on the argument that the application of Rule 41.-01(b) to this case would contravene Missouri Constitution Article V, § 5. That constitutional section, which gives the Supreme Court power to establish rules of practice and procedure, limits that power by saying that rules so adopted shall not change substantive rights * * * or the right of appeal.” Respondent argues strongly that the permission of third party practice in this case would both change substantive rights and also the right of appeal.

Contrary to that argument, the utilization of third party practice in this case would make no such change, but rather would be purely procedural in nature and effect. This can be demonstrated by the fact that even prior to January 1, 1974, relator could have appealed the magistrate judgment and also at the same time could have filed a new suit against Exchange. In this respect the situation is not unlike American Life & Accident Ins. Co. v. Morris, 281 S.W.2d 601 (Mo.App.1955), where an insured brought suit on his insurance policy in a magistrate court. The insured joined the city which was also claiming proceeds of that policy. From a judgment in favor of the policy holder, both the city and the insurer appealed to the Circuit Court. Then the insurer filed a new inter-pleader suit in the Circuit Court on the theory that the third party procedure in the magistrate court had been in error and that the third party procedure was not available on the appeal from the magistrate judgment. The St. Louis Court of Appeals held that the insurer’s substitute procedure was correct and that the interpleader suit should be permitted.

Somewhat similarly, even before January 1, 1974, relator could have pursued an appeal from the magistrate court and could have concurrently instituted suit against Exchange. The only thing new accomplished by Rule 41.01(b) is that relator is now permitted to pursue these two remedies in a single lawsuit. Certainly no new substantive right has been created, since each of her two rights preexisted the new rule.

Nor can it be said that the new rule changes the right of appeal. Relator’s right of appeal from the magistrate judgment stems from § 512.180, which stands unaffected even after January 1, 1974. The new rule only changes the procedures which are available after the appeal has already been taken and perfected.

This situation bears some analogy to In re Moore, 282 S.W.2d 856, 860 (Mo.App.1955). That case involved the requirement for filing bonds on appeals from a magistrate court, which had been changed by Supreme Court Rule 22.13. Under the practice prior to the adoption of that rule, an appellant from a police or magistrate court had to file an appeal bond and then a separate recognizance if there was a change of venue. Rule 22.13 changed this by permitting the appeal bond to serve both purposes. This rule was challenged as being a change in substantive rights and the right of appeal in violation of Constitutional Article V, § 5. This contention was rejected and it was held that only procedural rights were affected:

“Neither the rule itself, nor the reading of the rule into the bond, constitutes a change in the substantive rights of the principal and surety or affects the right of appeal. Procedural rights only, and not substantive rights, are affected by these rules.”

This court is bound by the Supreme Court Rules as well as by the statute, and it is our duty to give effect to the rules if reasonably possible. It is to be noted that in the adoption of these new rules the Supreme Court has declared in Rule 41.02 that “Rules 41 to 101, inclusive, are promulgated pursuant to authority granted this Court by Section 5 of Article V of the Constitution of Missouri * * *.” That declaration demands respect. Under the analysis set forth above, the application of third party practice in this case does no more than and does not exceed the purpose so announced by the Supreme Court. Rule 41.01(b) is within the rule making power conferred upon the Supreme Court and has the effect of superseding § 512.280 and the case law decided thereunder.

The alternative writ is made peremptory.

All concur.

PRITCHARD, J., not participating.


author: DIXON, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Vert Roscoe GIBSON, Defendant-Appellant.
    No. KCD 27870.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.

      Robert L. Wehrman, Shapiro, Pólsinelli, Schulte, Wehrman & Welte, Kansas City, for defendant-appellant.
    John C. Danforth, Atty. Gen., Nanette Laughrey, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

Defendant, Vert Roscoe Gibson, was charged with having committed perjury in violation of Section 557.010 RSMo 1969. Gibson was tried before a jury, found guilty, and sentenced to seven years. On this appeal, defendant contends that the State failed to make a submissible case under the quantitative evidence rule applicable in prosecutions for perjury.

The perjury charge arises out of a conflict between the defendant’s testimony at the trial of an alleged accomplice, one Graves, when Gibson testified that Graves was not involved in the commission of the initial crime of stealing over $50 from a Safeway super market. This testimony directly and specifically conflicted with the defendant Gibson’s testimony under oath at his guilty plea proceedings to stealing over $50 from the Safeway store. In the course of those plea proceedings, Gibson clearly and unequivocally testified that Graves was in fact involved in the theft from the Safeway store and that they were acting in concert in committing that crime. At the perjury trial, the State offered the testimony of a security officer of the Safeway store. He testified that Gibson and Graves entered the Safeway store together and that the defendant then filled a basket with groceries, and Graves returned and attempted to assist him in getting the basket of groceries out of the store without paying for them. The testimony clearly indicated the collaboration of the defendant Gibson and Graves in attempting the theft. Graves was apprehended outside the store with the groceries transferred to him by Gibson, while Gibson was apprehended inside the store. The State also offered as a part of its case the sworn testimony of the defendant Gibson at his guilty plea.

Against this background, the defendant’s contention is that the quantitative evidence role was not satisfied since the State produced only the security officer as a witness to contradict the testimony of Gibson at Graves’ trial and that his testimony was not corroborated so there was insufficient evidence under the rule peculiar to perjury prosecutions to make out a submissible case.

The quantitative evidence rule, peculiar to perjury prosecutions, is that the uncorroborated oath of one witness is not enough to establish the falsity of the testimony which is relied upon as furnishing the basis for perjury. The rule is established in the law of this State. State v. Burgess, 457 S.W.2d 680 (Mo. banc 1970); State v. Cusumano, 372 S.W.2d 860 (Mo.1963); State v. Heed, 57 Mo. 252 (1874); State v. McGee, 341 Mo. 151, 106 S.W.2d 480 (1937).

This rule is most clearly set forth in State v. Heed, 57 Mo. 252, 254 (1874):

“ ‘In proof of the crime of perjury also it was formerly held that two witnesses were necessary, because otherwise there would be nothing more than the oath of one man against another, upon which the jury could not safely convict.’ But this strictness has long since been relaxed; the true principle of the law being merely this, that the evidence must be something more than sufficient to counter-balance the oath of the prisoner and the legal presumption of his innocence. The oath of the opposing witness therefore, will not avail, unless it be corroborated by other independent circumstances. But it is not precisely accurate to say that these additional circumstances must be tantamount to another witness. The same effect being given to the oath of the prisoner as though it were the oath of a credible witness, the scale of evidence is exactly balanced, and the equilibrium must be destroyed by material and independent circumstances, before the party can be convicted. The additional evidence need not be such as standing by itself, would justify a conviction in a case where the testimony of a single witness would suffice for that purpose; but it must be at least strongly corroborative of the testimony of the accusing witness; . . . ”

The entire thrust of defendant’s argument, that the quantum of evidence to sustain a conviction for perjury is not present, is based upon the contention that the defendant’s under-oath testimony at his plea proceedings cannot be used as corroborating evidence of perjury. Defendant argues that when that testimony is excluded the State is left with the uncorroborated evidence of the security officer as against the allegedly false testimony of Gibson offered at Graves’ trial. Making this contention, the defendant relies upon State v. Hardiman, 277 Mo. 229, 209 S.W. 879 (1919). There is language in State v. Hardiman which would seem to support the position contended for by the defendant in this case. The broad language of Hardiman suggesting that corroborating evidence means evidence independent of any declaration of the defendant and the person to be corroborated relies upon two other cases, State v. Thornton, 245 Mo. 436, 150 S.W. 1048 (1919), and State v. Hunter, 181 Mo. 316, 80 S.W. 955 (1904). Unfortunately for the defendant’s argument, none of these cases, when carefully examined, support the position that a declaration of the defendant may not be corroborative of other testimony demonstrating perjury. A reading of Hardiman shows that the defendant’s statement offered in corroboration was not corroborative in fact and an examination of Thornton and Hunter show that they do not support the language of Hardiman as the defendant construed it. In Thornton the court decided only that the statement of the defendant was inadmissible because it was involuntary and not because the defendant made it. So also in Hunter, the defendant charged with perjury committed on the trial of a claim for damages against a railroad company was convicted of perjury based upon a confession obtained upon a promise of immunity from prosecution. The court again held that the statement did not furnish corroboration because it was involuntary, but expressly disavowed any implication that a defendant’s statement could not be used, saying 181 Mo. at page 336, 80 S.W. at page 960:

“We do not intend to be understood by what has been said, as holding that other admissions and statements made by defendant, tending to show that he committed perjury on the trial of his suit against the railroad company, were inadmissible in evidence against him, if voluntarily made.”

An earlier case, State v. Blize, 111 Mo. 464, 20 S.W. 210 (1892), which reversed a conviction upon other grounds clearly set forth the rule concerning corroboration. In Blize, the defendant testified at trial that the prosecuting witness in a rape case had a bad reputation for virtue and chastity and that he had himself had sexual intercourse with her. In the perjury trial, the prosecu-trix directly swore that the statement of the defendant with respect to intercourse was false and several witnesses testified that at a preliminary examination preceding the rape trial, the defendant had testified under oath that he had never had sexual intercourse with the prosecutrix. The court held that this was sufficient evidence to have submitted a charge to the jury concerning the falsity of the evidence given at the rape trial, but the court reversed on the ground that although there was evidence sufficient on that specific falsehood, it was insufficient on the other assignment concerning the falsity of the defendant’s testimony as to the prosecutrix’ reputation and that the judgment, therefore, would be reversed.

Thus, the situation in Blize is very much like the instant case. Defendant also cites State v. Burgess, 457 S.W.2d 680 (Mo. banc 1970) and State v. Sloan, 309 Mo. 498, 274 S.W. 734 (1925), but they do not support his position. In Burgess, the court was merely confronted with the question whether the trial court must instruct on the quantitative evidence rule, requested or not. The court held that the rule related to an essential question, not a collateral one, and an instruction on it must be given, whether such is requested or not. There was no discussion of whether defendant’s statement in contradiction of his sworn statement could serve as corroborative evidence to satisfy the quantitative evidence rule.

In Sloan, the court simply held the statement offered as contradiction to be neither a confession nor an admission that the other statement was false. The statement offered constituted nothing more than a different explanation, consistent with the innocence of defendant as to how he came to testify as he did testify. The court, holding as it did never reached the issue of whether the jury should have been instructed to disregard any inconsistent statement of defendant in determining his guilt of perjury.

The sworn statement of the defendant at the plea proceedings being voluntary and corroborative of the testimony of the security officer satisfies the quantitative evidence rule, and the evidence thus considered makes a submissible case.

The conviction is affirmed.

All concur.

      . The official Missouri report is quoted above for the text of the Hunter opinion. The Southwestern Reporter version contains a typographical error which changes the whole tenor of the opinion. Most likely it is this typographical error which has caused so much confusion. The Southwestern Reporter version substitutes the word “admissible” for the word “inadmissible.”