author: CROW, Presiding Judge.

text:
    CITY OF STEELVILLE, a municipal corporation, Respondent, v. Stanley M. SCOTT and Patricia A. Scott, Appellants.
    No. 13469.
    Missouri Court of Appeals, Southern District, Division Three.
    Dec. 17, 1984.
    Motion for Rehearing or Transfer Denied Jan. 3, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      John L. Woodward, Woodward, Rohrer & Mazzei, P.C., Steelville, for appellants.
    J. Kent Howald, R. Brooks Kenagy, Beckham, Hale, Howald & Kenagy, Steel-ville, for respondent.
   CROW, Presiding Judge.

Stanley M. Scott and Patricia A. Scott appeal from a judgment in favor of the City of Steelville establishing a “roadway easement” across the back of a tract of real estate owned by the Scotts. The judgment ordered the Scotts to remove a “concrete wall” and any other obstacle in the disputed area, and to refrain from hindering the general public in its use of the area as a roadway.

The circumstances whence this case arose can best be understood by reference to the diagram appended hereto, prepared from exhibits received in evidence at the trial.

The trial court found that the City and the general public had “acquired an easement which has become a public alley,” 16 feet wide and approximately 182 feet in length, meandering between First Street and the east line of Block 8 in the City’s business district. Block 8 occupies approximately the top half of the diagram, and is bounded on the east by a platted and established alley, on the south by Main Street, and on the west by First Street. Block 8 extends northerly across a railroad right-of-way, shown on the diagram, and is evidently bounded on the north by Frisco Street. The north boundary of Block 8 is not shown on the diagram, however, as that boundary is immaterial to this dispute.

The easement described in the judgment is the westernmost 182 feet, more or less, of a strip measuring approximately 510 feet in length, running an irregular course from First Street to Hickory Street. As explained infra, there was evidence that this 510-foot-long strip, in its entirety, had long been used as an alley by the general public.

For convenience, the term “putative alley” will henceforth be used to identify this approximately 510-foot-long strip. The westernmost 182 feet of the putative alley, as earlier noted, is the only portion of the putative alley purportedly affected by the judgment.

As shown on the diagram, the putative alley, between First Street and the east line of Block 8, crosses land titled in several different owners. The Scotts, however, were the only owners named as defendants in this suit.

The Scotts’ property is rectangular in shape, the two long sides of the rectangle running generally north and south. The south side of the Scotts’ tract fronts on Main Street; the north (rear) abuts the railroad right-of-way. The putative alley, where it crosses the Scotts’ property, runs generally east and west. The east-west dimension of the Scotts’ land, as best we can determine from the record, is between 41 and 42 feet. Thus, the Scotts account for the ownership of less than one-fourth of the route of the approximately 182-foot-long easement described in the judgment, and only about 8 per cent of the route of the approximately 510-foot-long putative alley.

Beginning at the east edge of First Street, the putative alley runs east across vacant land between two buildings identified, respectively, as “C & C Auto Parts” and “Old Masonic Lodge.”

Morris Cooper, born October 16, 1900, testified that in 1888 his father owned the property designated C & C Auto Parts, together with the vacant land between C & C Auto Parts and the Old Masonic Lodge. The property owned by Morris Cooper’s father, in the aggregate, will be referred to as the “Cooper property.” Morris Cooper’s father owned the Cooper property until 1944, when Morris Cooper acquired it by inheritance.

The Cooper property belonged to Morris Cooper from 1944 until 1969, when he sold it to “Mr. and Mrs. Chipman.” During the time that they owned it, Morris Cooper, and his father before him, operated a retail business at that location.

Describing the area between C & C Auto Parts and the Old Masonic Lodge as “my vacant lot,” Morris Cooper testified that “it was used for a passageway there ever since I can remember.” He added: “The trucks used it there. They come through that way and unloaded the merchandise that the merchants bought from the St. Louis firms. They backed in there and unloaded their wares, whatever they had to unload for them.”

Morris Cooper further explained: “One time I contemplated building there, but I decided I didn’t want to do that. I wanted, I would disrupt my neighbors from using it to get their wares and one thing and another, and another reason, in case we had a fire or anything, a fire engine couldn’t get in there very easy and I wanted to keep it open for the use of the public.”

Morris Cooper testified that as far back as 1907, he and the general public had used the putative alley (his “vacant lot” being the extreme western segment thereof) to travel from First Street to Hickory Street, and vice versa.

The vacant lot was also regularly used for parking, not only by Morris Cooper’s customers, but also by customers of nearby stores. According to Morris Cooper, “I had no objection to them using it.” He recounted that it was customary in Steel-ville for people to use vacant land to travel between and behind buildings “whenever they so pleased.”

As illustrated by the diagram, the land immediately east of the Cooper property and the Old Masonic Lodge is, according to the transcript, owned by Ike Lovan. The east-west dimension of the Lovan parcel, as best we can determine, is between 20 and 21 feet. Lovan operates a jewelry store in a building on the front (south) of his property, abutting Main Street. North of Lo-van’s building, his land is vacant. According to the evidence, the putative alley crosses Lovan’s land some distance north of his store, then turns northeasterly and proceeds across land owned by Rowland Bass.

Bass’ parcel, like Lovan’s has an east-west dimension between 20 and 21 feet. A building sits on the south portion thereof, facing Main Street. The putative alley crosses Bass’ land north of his building.

At the east edge of the Bass land, the putative alley reaches the Scott property, turning easterly and running behind a structure identified as “Scotts’ Storage Building.” This structure has evidently existed for decades. A newer structure, adjoining the south side of the storage building, was erected by the Scotts in 1976, occupying a gap between the storage building and a building fronting on Main Street, in which the Scott family has operated a retail business for three generations.

The diagram reveals that the putative alley runs obliquely across the Scotts’ property, in such manner that the northern line of the putative alley crosses the north boundary of the Scott tract, entering the railroad right-of-way. The southern line of the putative alley crosses the east boundary of the Scott tract. Beginning at the northeast corner of the Scott tract, the railroad right-of-way extends south along the east boundary of the Scott tract a distance of 10 feet. Consequently, once the putative alley leaves the Scott tract, it lies entirely on the railroad right-of-way until reaching Hickory Street. According to our calculations, approximately 328 feet of the 510-foot-long putative alley are on the railroad right-of-way. A careful observer will note that a small part of the putative alley lies on railroad right-of-way west of the east line of Block 8 (that line being the west edge of the platted and established alley, extended northward from the northeast corner of the Scott tract). The judgment therefore, ostensibly affects at least a small area of the railroad right-of-way.

The events that precipitated this suit began March 10, 1982, when the Scotts commenced excavation to install concrete footings for a wall to run north from the northwest corner of their storage building. Forms were set and concrete was poured a week later. A wall approximately 20 feet in length was erected, its north end situated 5 or 6 feet south of the railroad right-of-way. The wall extended well into — but not entirely across — the putative alley. According to Stanley M. Scott, his intention was to build an addition onto the north side of the storage building.

The City thereupon instituted this suit and obtained a temporary restraining order, resulting in cessation of construction. The wall remained intact at time of trial.

The evidence already mentioned was not all of the evidence presented. However, the evidence, in the aggregate, viewed favorably to the result below, Cusumano v. Outdoors Today, Inc., 608 S.W.2d 136, 139[5] (Mo.App.1980), established that the general public had used the putative alley, together with the other vacant land adjacent to the various business buildings, for parking, deliveries and passage between First and Hickory Streets for over 70 years before the Scotts erected the wall.

The judgment fixed the location of the putative alley, in precise surveyors’ terms, from First Street to the east line of Block 8, and declared that the City and the general public had, for a period of more than 10 years, possessed, held, and used that segment of the putative alley which crosses the Scotts’ land “continuously, openly, notoriously, adversely and exclusively”. The judgment set out the legal description of the Scotts’ land, and declared that the City held a 16-foot-wide roadway easement across it “for the use and maintenance of a roadway for the public, with all rights and privileges incidental thereto.” The Scotts were permanently enjoined from “obstructing, impeding, and otherwise blocking or rendering said roadway inaccessable [sic] or unusable by the general public as a roadway.” Additionally, as noted earlier, the Scotts were commanded to remove the wall and any other obstacle.

The judgment did not identify the owners of any of the other tracts across which the putative alley passes, nor did it set out the legal descriptions of any of those tracts. Additionally, as already observed, none of the owners of those tracts were parties to this suit. Moreover, there was no showing that the City, by any earlier judgment, had acquired an easement for any portion of the putative alley, or that any owner of any of the land over which the putative alley passes had granted the City an easement for such use.

In sum, although the judgment declares that a 16-foot-wide easement for use as an alley has been acquired by the City (evidently by prescription) along the described route between First Street and the east line of Block 8, it is obvious that as matters presently stand, the only segment of the route over which a roadway easement is formally established is the segment across the Scotts’ land (the easement there being established only if the instant judgment be affirmed). In these circumstances, affirmance would result in encumbering the Scotts’ land with a roadway easement, each end of which abuts property across which no corresponding easement has yet been formally acquired, either by judgment or conveyance.

While one might assume that the City, if challenged in the future, could, through litigation, establish a roadway easement by prescription against the owners of the other tracts across which the putative alley runs between First Street and the east line of Block 8, such result is by no means assured.

There was no testimony from the Chip-mans, Lovan, Bass, or any official of the railroad, and nothing in the record indicates their attitudes toward formal recognition of a roadway easement across their respective properties. Morris Cooper, however, was unwilling to concede the existence of such an easement during the time he owned the Cooper property. As noted earlier, he referred to the passageway between C & C Auto Parts and the Old Masonic Lodge as “my vacant lot,” stating that he once contemplated building on it. It is evident that in his mind, Morris Cooper considered that the public used his vacant lot by his permission, and not in a manner hostile or adverse to his ownership. See generally Szombathy v. City of Berkeley, 280 S.W.2d 884 (Mo.1955); Kelsey v. City of Shrewsbury, 335 Mo. 78, 71 S.W.2d 730 (1934).

Additionally, the railroad right-of-way presents considerations distinct from those affecting the other tracts. See generally § 516.090, RSMo 1978; Granite Bituminous Paving Co. v. St. Louis & M. R. R. Co., 331 Mo. 899, 55 S.W.2d 468, 472[4, 5] (1932); St. Louis-San Francisco Ry. Co. v. King, 329 Mo. 1203, 50 S.W.2d 94, 98[1] (1932).

We are thus confronted by the question whether a municipality may obtain, by judgment, an easement across private property for roadway purposes when the easement nowhere connects with any place that the public has, either prior thereto or contemporaneously therewith, acquired a formally recognized right of roadway use.

Though we find no Missouri case with comparable facts, there is a condemnation suit, City of St. Louis v. Butler Co., 223 S.W.2d 831 (Mo.App.1949), that is helpful by analogy. There, a municipality sought to acquire a north-south strip of land for a public street. The proposed street, going north from the north boundary of the southernmost tract involved in the suit, ultimately reached another public street. However, going south from the north boundary of the southernmost tract, the proposed street crossed only that tract, which belonged entirely to one owner. The southern terminus of the proposed street was a railroad right-of-way where there were no depots or loading docks available to the general public and no road, street or viaduct to carry traffic across the railroad tracks. Holding that the proposed taking would serve no public purpose, the opinion upheld a judgment dismissing the action as to the owner of the southernmost tract. Inasmuch as neither the public generally nor the owners of property north of the southernmost tract would obtain any benefit from the proposed extension of the street across said tract, no public use was shown. Id. at 834[2].

Such would be the case here if, in the future, it were determined that the public had acquired no easement across the tracts where the remainder of the putative alley lies.

We recognize, of course, that in the record before us there is evidence of public use of the putative alley for well over half a century. We have pointed out, however, the uncertainty whether such use has resulted in acquisition Of a roadway easement, by prescription, over all of the separately owned tracts where the putative alley lies. That issue remains unadjudicated. Neither the character of the several tracts, nor the course of the putative alley across them, is uniform. Photographs reveal that the path of the putative alley is easily recognized as it passes between C & C Auto Parts and the Old Masonic Lodge, and farther east as it proceeds across the railroad right-of-way. The path is indistinct, however, across the vacant land owned by Lovan and Bass. All of that area is bare, and there is no established path susceptible to location or determination of width.

We point out these factors only to illustrate the possibility that future litigation might determine that the public has not acquired a roadway easement by prescription across all, or perhaps any, of the remaining 92 per cent of the putative alley. If it should ultimately be adjudged that there is no public right of access to either end of the segment that crosses the Scott property, the public would obviously be unable to lawfully use the easement which the instant judgment purports to establish across the Scott property. That would result in the Scott property’s being encumbered with a meaningless easement.

We do not decide, nor comment on, whether it would be proper to declare the existence of a roadway easement across land connecting the Scott segment with only one of the two streets (First or Hickory). It may be that the trial court will never have to decide that question. The trial court may conclude that the public has, by prescription, acquired an easement across the entire course of the putative alley, connecting both streets, or the trial court may conclude that the public has not acquired an easement connecting the segment across the Seotts’ property with either street. There is even the possibility that the trial court will not have to decide any of this, as the City might be successful in acquiring the easement it seeks by deeds from the owners of the respective properties across which the entire course of the putative alley lies.

All we decide is that because the instant judgment does not (and could not) establish the easement across any land except the Seotts’, it cannot stand. Persons owning the land across which the putative alley passes from the Seotts’ land to at least one street should have been made parties to this suit so that the existence of an easement susceptible to use by the public could have been declared in one judgment, if supported by the evidence. As an alternative to naming all such landowners as parties, the City could have (from such landowners, if any, as were so disposed) obtained deeds granting the City the easement it seeks, such deeds being made part of the evidence to demonstrate that the right to public use had been formally acquired as to such landowners’ property.

We hold that because the City neither joined, as parties to this suit, the owners of the land over which the public must necessarily travel to make use of the easement across the Seotts’ property, nor demonstrated that it had acquired, by conveyance, an easement across such land for such purpose, the City was not entitled to the easement granted by the trial court. To be a public road a road must, of physical necessity, be so situated and connected as to be accessible to the public. Trammell v. Bradford, 198 Ala. 513, 73 So. 894, 895[4] (1916). The easement across the Seotts’ land, standing alone, fails to meet that requirement.

The judgment must therefore be reversed and the cause remanded to afford the City an opportunity to acquire, if it can, the easement it seeks, either by judgment or deed, or the two in combination.

Having reached this conclusion, we need not rule on all of the points briefed by the Seotts, as some may not arise on retrial. We note, however, that the Seotts, in one assignment of error, maintain they should have had a jury trial. The issue arose in the following way.

Under date of May 19, 1983, the docket sheet shows: “Plaintiff appeared by counsel, Mr. Howald. Defendants appeared by counsel, Mr. Rohrer. Cause set for trial to court August 29, 1983, #2 setting.” (Emphasis added).

The Seotts registered no objection to the setting for a bench trial, and asserted no right to a jury trial until Thursday, August 25, 1983, four days before trial. On that date they filed a “Request For Jury” in the office of the circuit clerk. There was no showing that the court was advised of this until Monday, August 29, 1983, when the parties appeared for trial. The trial court noted that the cause had been set for non-jury trial for more than three months, “and to grant the request for trial to jury would, in affect [sic], grant a continuance because we don’t have a jury ready.” The trial court denied the request.

The Scotts’ contention, as we understand it, is based on the belief that the City should have sought relief by the remedy of ejectment, an action at law. The City’s petition, however, sought relief that included the quieting of title to the alleged easement in favor of the City across the Scotts’ land. Specifically, the City prayed that the court declare that the Scotts are owners in fee simple of that land, and that the City holds a 16-foot-wide “roadway easement” across it. In addition, the City requested the injunctive relief referred to earlier.

The Scotts’ argument that the City was confined to the remedy of ejectment is without merit. The remedies pursued by the City were the same as those of the successful municipality in Cantrell v. City of Caruthersville, 249 S.W.2d 425 (Mo.1952). That does not mean, however, that the Scotts had no right to a jury on the quiet title issue. In Huter v. Birk, 510 S.W.2d 177 (Mo.1974), the plaintiffs, in one count, sought a declaration that they held an easement by prescription for use of a road across the defendants’ land. In other counts, the plaintiffs sought injunctive relief regarding the road and other disputes. The quiet title count was tried to a jury; the injunction counts were tried to the court. A judgment awarding the plaintiffs the easement and the injunctive relief was affirmed.

In the instant case, the issue is not so precisely defined, as the City has not asked for the declaration of the easement in a separate count from the injunctive relief. It may be, however, that the Scotts are nonetheless entitled to have a jury determine the easement issue. Counsel can study the authorities on the subject and cite them to the trial court if the Scotts desire a jury on retrial. We assume the Scotts will not again wait so late to make their position known. Their acquiescence in the non-jury setting, coupled with their failure to request a jury until it was obviously too late for the trial court to summon one, created an unnecessary problem for the trial court.

The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

HOGAN, TITUS and MAUS, JJ., concur.

PREWITT, C.J., not participating.

      . 39 AmJur.2d, Highways, Streets, and Bridges § 30 (1968), citing Central Pacific Railway Co. v. County of Alameda, 284 U.S. 463, 52 S.Ct. 225, 76 L.Ed. 402 (1932) states: “The public cannot acquire a right by prescription to pass over a tract of land generally, but only in a certain definite line of way.”

      . 1 W. Elliott, Roads and Streets § 2 (4th ed. 1926) states: "Although every public thoroughfare is a highway it is not essential that every highway should be a thoroughfare, as it is now well settled that a cul-de-sac may be a highway.”


source: Caselaw Access Project

author: DIXON, Judge Presiding.

license: Public Domain

text:
    Ralph D. GORDON, Appellant, v. STATE of Missouri, Respondent.
    No. WD34930.
    Missouri Court of Appeals, Western District.
    Jan. 22, 1985.
    John Kurtz, Popham, Conway, Sweeny, Fremont & Bundschu, P.C., Kansas City, for appellant.
    John Ashcroft, Atty. Gen., R. Brooks Pit-chie, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, J.P., and SHANGLER and CLARK, JJ.
   DIXON, Judge Presiding.

Movant appeals the trial court denial of his motion under Rule 27.26 to vacate the judgment of guilt of murder in the first degree and the life sentence imposed by the trial court.

A single issue is determinative of the appeal. Movant contends the public defender’s office had a conflict of interest because it represented movant and a key witness for the prosecution. Finding a conflict of interest and that, as a matter of law, that conflict rendered the public defender ineffective as movant’s counsel, the trial court judgment is reversed.

Movant was convicted in a jury trial conducted in early 1974. He was found guilty of felony murder in the robbery and shooting of a man who had been seeking prostitutes in the area of 30th and Prospect in Kansas City, Missouri. The conviction was affirmed on direct appeal. State v. Gordon, 527 S.W.2d 6 (Mo.App.1975). The proof of movant’s conviction, aside from proof of the victim’s death, came from several state’s witnesses. One Roberts testified movant was in the area on the evening and early morning in question. The witness claimed movant requested him to join in the robbery of two persons in a “Mustang” automobile early in the evening and that later, around 2:00 or 2:30 a.m., movant took him to where the victim’s Oldsmobile was later found with the victim in the trunk and told the witness he had robbed and killed someone and put the body in the trunk. Willie Flowers, a male prostitute and female impersonator testified he had solicited the victim and ridden around with him in the victim’s car. Flowers did not have any sexual activity with the victim because the victim had only six dollars. Flowers said he saw the victim continue to “cruise” the area for several hours. Flowers also said one Michael Glover had taken him home about 5:00 a.m. and, on the way, Glover showed him a black car and said the owner of the car was dead and in the trunk of the vehicle. Herbert Martin testified he had stolen a .38 caliber gun from an automobile and on the night in question had left the gun in the hands of movant. He further related the weapon was returned to him, with one shell spent, in the early morning hours. Martin said he sold the gun later that same day to an unknown purchaser. There was evidence, from witnesses at the scene where the victim’s car was found, that two men had spent a long time, until about 5:00 a.m., attempting to move the car. One of the witnesses heard a gunshot-like noise around 5:00 a.m.

A witness named Greer testified that movant attempted to solicit his aid in robbing the victim and that he saw movant enter the victim’s vehicle and leave with the victim. Greer variously stated the time of this incident from 1:30 a.m. to 2:30 a.m. Movant returned on foot in about an hour and entered Michael Glover’s vehicle in which Greer and Glover were sitting and told them he had robbed and shot the victim. Movant displayed the weapon and claimed it had malfunctioned. Later Greer, Roberts, and movant went to the location of the victim’s car and movant requested that Greer assist in stripping the tires from the victim’s vehicle, which he refused to do. The witnesses’ accounts have a variety of discrepancies and contradictions, except for Martin’s testimony about the weapon.

Movant contends that appointed counsel, the public defender, was involved in a conflict of interest unknown and unconsented to by movant and movant was thereby deprived of effective assistance of counsel.

The factual support for this contention was developed in the Rule 27.26 proceeding. Movant’s counsel put in evidence the files of the public defender’s office and of the circuit court concerning charges against the witness Martin. From these files, it appears that Martin was first charged with a felony in 1971. He was charged with a felony, tampering with a motor vehicle, and upon a plea, the charge was reduced to a misdemeanor. On October 31, 1973, a burglary and stealing occurred at Model Cities and on that same date Martin was charged. On December 18, 1973, Martin was arrested while shoplifting from Jones Store and charges of stealing over $50.00 were filed against him. In both cases, the proof at the preliminary hearings strongly indicated his guilt. On January 8, 1973, Martin pled guilty to the burglary and stealing charge pursuant to a plea bargain arrived at between the prosecutor’s office and the public defender’s office, which had been appointed as defense counsel in both cases. Martin was sentenced to three years for burglary and two for stealing and given probation for five years. The other stealing charge was dismissed. The record is silent as to whether his cooperation as a witness against mov-ant was a factor in the plea bargain.

The indictment against movant for the September 29, 1973, murder was filed in early October 1973, and he was arraigned October 10th. The public defender was appointed, and Gary Haggerty, an assistant public defender, was assigned. Martin was listed as a witness on the indictment. The movant’s case went to trial 28 days after Martin entered his plea.

Martin was arrested for another shoplifting offense, which occurred February 18, 1974. The State Board of Probation and Parole filed a report recommending revocation of his parole. This report was in evidence in the 27.26 proceeding. That report shows that Martin had been charged by the federal authorities with the forgery of a United States Treasury check. The report and the trial transcript show that Martin is a heroine addict. The report also shows that Martin had several misdemeanor stealing convictions, which he had failed to report to his parole officer. During the period between the February 18, 1974, offense and June of 1974, various negotiations occurred with respect to Martin’s continuance on probation. The parole violation was filed in connection with the January 1974 conviction and the judge handling that parole revocation and the judge handling the February 18, 1974, conviction agreed that his parole would not be revoked and that he would receive probation on the February 18, 1974, offense. The discussions resulting in this decision were influenced largely by representations by the public defender’s office of Martin’s assistance in testifying in the movant’s murder case. Gary Haggerty, the assistant public defender who acted as trial counsel for the movant, participated directly in the effort to avoid revocation of Martin’s parole and during the plea proceedings, which eventuated from the February 18, 1974, offense in June of 1974. The public defender asserted on the record Martin’s role as a witness in the movant’s murder trial as a basis for leniency. The federal authorities sentenced Martin to two years on a plea of guilty. The court denied revocation of his parole on the January 1974 offense and continued him on probation for that offense and the court, taking his plea on the February 18, 1974, offense, sentenced him to five years, suspended imposition of the sentence, and placed him upon five years probation concurrent with the January sentence and probation.

Movant postulates, upon the facts set forth above concerning the witness Martin, that a conflict of interest denied him effective assistance of counsel. When defense counsel is representing both a prosecution witness and the defendant, there is an inherent conflict of interest. Through the Sixth Amendment, the federal constitution guarantees the right to counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). This guarantee entitles the accused to a lawyer who can give faithful service and undivided loyalty. A lawyer who attempts to serve conflicting interests cannot properly serve with loyalty either client. State v. Crockett, 419 S.W.2d 22 (Mo.1967). When an actual conflict of interest appears, prejudice is presumed. Cuyler v. Sullivan, 446 U.S. 335, 345-350, 100 S.Ct. 1708, 1716-1719, 64 L.Ed.2d 333 (1980). Prejudice is presumed if the attorney actively represented conflicting interests and his conflicting duties affected his performance. Cuyler v. Sullivan, supra. This exception to the requirement of a showing of prejudice was specifically recognized in Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Based upon Glosser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), Missouri courts have held that when defense counsel represents a prosecution witness in a related or unrelated case, an actual conflict of interest exists. State v. Risinger, 546 S.W.2d 563 (Mo.App.1977). That different lawyers from the same office are separately engaged in the representation makes no difference. See, Ciarelli v. State, 441 S.W.2d 695 (Mo.1969). Risinger provides a dual rationale for the finding of conflict when the lawyer represents both the defendant and the prosecution witness. Risinger notes first:

The impossibility of representing a defendant with undivided allegiance becomes inherent in a situation where the attorney, because of confidential information obtained from a prosecution witness, has to reef his sails with a resulting lack of unfettered freedom to thoroughly and effectively cross-examine and impeach the witness.

546 S.W.2d at 566. Risinger’s second rationale is squarely applicable to the instant case. The defendant Risinger was convicted of receiving stolen property. The witness Matlock pleaded guilty before Rising-er’s trial to the theft of the property. Mat-lock also told the authorities Risinger had bought a CB radio from Matlock, which Risinger knew was stolen. The Risinger court said:

A second danger in being represented by an attorney who also represented a prosecution witness comes to light in the facts unique to this case. Matlock not only pleaded guilty to the crimes committed at the beer distributor’s in exchange for probation if he would testify against defendant, but he also testified he had sold stolen property to defendant. It is reasonable to assume that Matlock’s continued freedom on probation or his apparent immunity from prosecution for stealing the CB radio he allegedly sold to defendant might depend on his performance at defendant’s instant trial or subsequent trials on additional charges. Consequently, on the one hand the public defender had a continuing duty not to degrade the value of Matlock’s cooperation with the state so as to assure the success of his probation or his freedom from prosecution for stealing, while on the other hand the attorney was required by his professional duty to the defendant to attack Matlock’s credibility in every proper or conceivable manner. People v. Augustus, 36 Ill.App.3d 75, 343 N.E.2d 272, 273 (1976). Also see People v. Johnson, 46 Ill.2d 266, 265 N.E.2d 869, 870 (1970); People v. Ware, 39 Ill.2d 66, 233 N.E.2d 421, 422 (1968).

Risinger, 546 S.W.2d at 566-67.

Here, the witness Martin not only pleaded guilty to the unrelated charges but also, in his statement and testimony, admitted the theft of the weapon. Martin has never been charged with that crime and, like Mat-lock, his success in probation and his freedom from prosecution depended upon his cooperation. In fact, the record in the instant case demonstrates that his cooperation won him another parole on a subsequent charge and a continuation of his parole. It is notable that movant’s trial counsel personally intervened to assist Martin in the parole continuation after the later charge.

The state argues first that there was no conflict of interest because movant’s counsel took no action detrimental to movant and advantageous to the witness. The argument is both factually and legally flawed. The trial record demonstrates that trial counsel Haggerty failed to impeach the witness with any of his prior convictions. Because he did not raise the issue of the conviction 28 days before trial and the witness’s probation on two charges in which he had been caught red-handed, there was no inquiry about any arrangement for the witness to testify in movant’s case. Citing State v. Johnson, 549 S.W.2d 348 (Mo.App.1977), the state also notes the witness’s offenses were unrelated and concluded at the time of trial. Risinger specifically holds that the conclusion of the witness’s case does not end the attorney client relationship. Risinger, 546 S.W.2d at 566. The Risinger rationale does not depend upon the relationship or lack thereof between the witness’s offense and the defendant’s offense. It is the relationship of counsel to the parties that creates the conflict, not the relationship of the offenses. The conflict can exist whether the witness’s case is related or not. The witness has the same interest in the disposition of his case whether it is related to the one in which he will testify or not. State v. Johnson, supra, relied upon by the state, involved a fact situation where the representation of the purported witness had been concluded. However, in Johnson, the witness’ representation related to whether the witness would invoke the Fifth Amendment, which he did. Johnson, therefore, is not really a conflict situation since the potential witness never testified. There may be fact situations in which the representation of the witness is, in a temporal sense, so attenuated from the defendant’s case that no conflict could exist. The instant case demonstrates no such attenuation.

The state also cites Mooring v. State, 501 S.W.2d 7 (Mo.1973), and Mason v. State, 468 S.W.2d 617 (Mo.1971). In Mooring, the defendant was aware of the dual representation and the only claim of ineffectiveness of counsel was the failure to suppress a lineup in which the codefendant was not involved in any way. In Mason as well, codefendants were represented by the same defense counsel. The court in Mason stated that the mere fact of dual representation does not create a conflict of interest. That is not in conflict with State v. Rising er, 546 S.W.2d 568 (Mo.App.1977); State v. Cox, 589 S.W.2d 684 (Mo.App.1976); Ciarelli v. State, 441 S.W.2d 695 (Mo.1969); or Douglas v. State, 630 S.W.2d 162 (Mo.App.1982), all of which hold that simultaneous representation of a prosecuting witness and the defendant or of a codefendant who pleads and then testifies adversely to the defendant creates a conflict of interest, which is presumed to be prejudicial. There is no conflict because of the factual differences between the situations of codefend-ants and a defendant and prosecuting witness. The Supreme Court in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), quoted with approval the language in Glasser v. United States, 315 U.S. 60, 92, 62 S.Ct. 457, 475, 86 L.Ed. 680 (1942) (Frankfurter, J., dissenting), that in cases of multiple representation “ ‘ “[a] common defense ... gives strength against a common attack.” ’ ” Thus, in the multiple representation of defendants there may or may not be a conflict, depending upon the existence of a common defense. That factual difference does not exist when the dual representation involves a prosecution witness and the defendant. There is no common purpose or defense, whether the witness’s offense is unrelated or whether the situation involves a codefendant who has pleaded and then becomes a prosecution witness. There is a conflict in every such case because of the differing positions and interests of the witness and the defendant. The argument and authority cited by the state are applicable to the situation where multiple defendants are represented, but have no application to the factual situation in the instant case.

Because the public defender, counsel for the movant, and the prosecuting witness were involved in a conflict of interest, mov-ant’s Sixth Amendment right to counsel was violated. It follows that the trial court’s judgment denying relief on that ground is in error. The judgment is reversed and remanded with directions to vacate the judgment and sentence and afford the movant a new trial.

All concur.


text:
    James GRASSHAM, Respondent, v. FARM BUREAU TOWN AND COUNTRY INSURANCE COMPANY OF MISSOURI, Appellant.
    No. 13626.
    Missouri Court of Appeals, Southern District, Division Three.
    Dec. 20, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 11, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      R.L. Veit, Robert J. Swift, Jr., Carson, Monaco, Coil, Riley & McMillin, P.C., Jefferson City, for appellant.
    L. Dwayne Hackworth, Randy P. Schul-ler, Hackworth & Schuller, Piedmont, for respondent.
   CROW, Presiding Judge.

This is a suit by James Grassham (“plaintiff”) against Farm Bureau Town and Country Insurance Company of Missouri (“defendant”) on a fire insurance policy. The trial court, hearing the cause without a jury, entered judgment for plaintiff for $15,000, the policy limit. Defendant appeals. The sole issue is whether the policy was in force at the time of the loss.

The policy, which insured a frame structure described as a “vacation-type cabin” near Clearwater Lake in Reynolds County, was issued for a term of one year, bearing an inception date of “11-23-79” and an expiration date of “11-23-80.” It said:

“The term of this policy shall be from 12:01 A.M. on the effective date to 12:01 A.M. on the expiration date, Standard Time, and for such terms of 12 calendar months each thereafter as the required renewal premium is paid on or before expiration of the current term and accepted by the Company.”

Plaintiff paid the initial premium, $110, by check dated January 14, 1980.

Plaintiff renewed the policy for another one-year term by a check in the same amount dated November 18, 1980.

Harold Smith, defendant’s “service supervisor,” testified that a computer sends a renewal notice to defendant’s policyholders approximately 21 days before their policies are scheduled to expire. According to Smith, such a notice was sent to plaintiff about November 1 or 2,1981. No copy of the notice was produced by either party, but Smith testified the notice was “exactly the same” as one shown him at trial. That one said, in pertinent part: “This is the only notice you will receive. Policy will be cancelled on above due date if premium not received on or before due date.”

Plaintiff’s bookkeeper admitted receiving such a notice, explaining that the notice prompted him to write a check for the $110 annual premium on November 25, 1981. The bookkeeper mailed the check to defendant’s “home office” at Jefferson City the same day. Smith testified that defendant received the check November 28, 1981. It was deposited in defendant’s bank account.

On November 29, 1981, plaintiff’s daughter-in-law received a phone call from the owner of a cabin situated next to plaintiff’s. The caller was attempting to find plaintiff, to tell plaintiff that plaintiff’s cabin — along with the one owned by the caller — had burned.

Plaintiff’s daughter-in-law relayed the news to plaintiff’s bookkeeper, who then called plaintiff and notified him. Plaintiff thereupon notified defendant’s agent in Van Burén that same day (November 29).

Records of the Missouri Department of Conservation reveal that its Piedmont forestry office was notified of the fire by telephone at 3:18 p.m., November 24, 1981. The call was evidently made by a squirrel hunter.

Ron Keith, a “forestry aide,” was dispatched to the scene, arriving at 3:31 p.m. He saw the two cabins “were completely burned down to the foundation, completely gone.” The fires were still burning, with flames “maybe about four feet high.” A woods fire, which had burned approximately one acre, was extinguished by Keith.

There was no testimony as to when the fire started, but the cabins were along a gravel road traveled by “between six and a dozen cars a day,” and no one had reported a fire in that vicinity to the Department on November 22 or 23.

The record is silent as to why plaintiff was not notified of the fire until five days after its discovery.

On December 11, 1981, defendant’s regional claims supervisor wrote plaintiff a letter, the heading of which stated:

“EXPIRATION OF POLICY: 11/23/81
DATE OF LOSS: 11/24/81”
The letter read:
“This is to inform you of the expiration of your property policy, G56 542, for non-payment of premium.
This Company cannot afford any coverage under this policy for the loss which occurred on November 24, 1981, due to the policy having lapsed because of nonpayment of premium.
We regret this action, but feel confident you can understand the position we must take.”

Defendant, however, kept all of the premium paid by the check of November 25, 1981. In explanation, Smith, defendant’s service supervisor, testified that although the computer showed that plaintiff’s policy had lapsed November 23, 1981, because of nonpayment of premium, the computer “status sheet” showed that defendant “had reissued and started coverage on 11-28-81 for another period of a year from that date,” said coverage being identified by the same policy number as the lapsed policy. According to Smith, defendant would have sent plaintiff a receipt saying that defendant had received the premium on November 28, 1981, and the “policy period” would be from November 28, 1981, to November 28, 1982. Defendant, however, produced no copy of such a receipt, and plaintiff denied receiving any such receipt.

Defendant’s sole contention at trial, and here, is' that plaintiff had no coverage on the cabin from 12:01 a.m., November 23, 1981, until November 28,1981, and that the fire occurred during that interval. Defendant makes no claim that plaintiff caused the fire, nor does defendant assert that plaintiff knew the fire had occurred when the renewal check was sent November 25, 1981.

The trial court filed findings of fact and conclusions of law with its judgment, but made no finding as to when the fire began. In the trial court’s view, that was unnecessary. The trial court concluded that plaintiff’s policy was a continuing policy, with no provision by which coverage was suspended from the stated expiration date until receipt of the renewal premium. The trial court determined that defendant’s acceptance of the late premium on November 28, 1981, indicated an intent by defendant to waive its right to insist on prompt payment. These circumstances, ruled the trial court, resulted in a renewal of the policy for a one-year term beginning at the expiration of the previous term. Consequently, there was no interruption in coverage and the policy was in force regardless of which day the fire started.

Expressed another way, the trial court’s rationale, as we perceive it, is that timely payment of the stipulated premium would have, according to the renewal provision of the policy, automatically renewed coverage for a one-year term beginning at 12:01 a.m., November 23, 1981, and ending at 12:01 a.m., November 23, 1982. Defendant had the right, under the policy, to insist that the renewal premium be paid by the deadline established by the policy, and the concomitant right, of course, to reject a delinquent tender of premium and thereby avoid liability for any loss occurring after 12:01 a.m., November 23,1981. That was a right that defendant could waive, however, and defendant did waive that right by accepting plaintiffs tender of the premium five days after it was due. Inasmuch as the premium necessary to renew coverage for a one-year term — beginning and ending on the dates specified in the policy — was tendered (albeit late) by plaintiff, and accepted by defendant when tendered, the policy was renewed for a one-year term beginning at 12:01 a.m., November 23, 1981. Consequently, the trial court found there was coverage irrespective of when plaintiff’s cabin caught fire.

Defendant contends the trial court erred in finding that defendant waived its right to insist on timely payment of the premium, arguing that such finding is unsupported by substantial evidence and is contrary to Missouri Law. Defendant maintains that its acceptance of the check on November 28, 1981, “was not for the purpose of backdating coverage on the policy to the expiration date; rather it was to reinitiate coverage on the date the past-due premium was received for a period of one year from that date.”

As this was a court-tried case, the scope of our review is established by Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976). The judgment will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.

Insurance policies with renewal provisions similar to the one here have been held to be “continuing” policies. Lake v. Farm Bureau Mutual Insurance Company of Missouri, 624 S.W.2d 28, 29[2] (Mo.App.1981); M.F.A. Mutual Insurance Co. v. Quinn, 259 S.W.2d 854, 859[5] (Mo.App.1953). The policies in Lake and Quinn, as here, contained no provision by which the insurance was suspended from the expiration date until payment of premium. Absent such provision, payment of a premium, then past due, and its acceptance by the insurance company, is evidence of a waiver of the company’s right to insist on prompt payment. Lake, 624 S.W.2d at 29; Quinn, 259 S.W.2d at 859[8].

An argument similar to defendant’s was rejected in Mitchell v. Farmers Insurance Exchange, 396 S.W.2d 647 (Mo.1965). There, the deadline for payment of the renewal premium, as fixed by the policy and subsequently extended by an “avoid lapse” notice, was May 18, 1961. The evidence, viewed favorably to the policyholder, was that a check for the renewal was mailed May 17, 1961, and reached the company May 19. The incident that occasioned the loss (a motor vehicle accident) occurred May 20. The company stamped the check received as of May 22, unaware of the accident. Subsequently, on June 6, the company learned of the accident. On June 23, the company concluded that the policy was not in effect on May 20, and that it should be reinstated effective May 23. On June 26, an endorsement to that effect was mailed to the policyholder.

Mitchell held that regardless of the time limits fixed by the policy and the notice, and regardless of whether the act of mailing the check was considered payment, all such requirements were waived by the company. It was evident that when the company processed the check on May 22, its personnel were aware that the deadline for payment had passed. Despite that, the company treated the payment as a routine renewal. Id. at 650[1]. Having specified the payment terms, the company could waive those requirements. Id. at 650[2].

Pointing out that the policy was a continuing policy, the opinion stated that our courts have consistently held that conditions for payment of premium may be waived by the insurer, and that the insurer had done so there. Id. at 652. Having accepted the delinquent premium, the company could not impose an uncommunicated condition, i.e., that coverage lapsed during the interval between the payment deadline and receipt of the cheek. Id. at 651[3]. The premium having been accepted by the company when received, the policy was thereby extended from its stated expiration date, and was in effect on the date of the accident. Id. at 652[5].

The principles of Lake, Quinn and Mitchell apply here. Defendant was not required to accept plaintiff’s delinquent tender of the renewal premium. When plaintiff’s check reached defendant’s home office on November 28, 1981, defendant could have rejected it, in timely fashion, and escaped liability for any loss occurring after 12:01 a.m., November 23, 1981. Defendant had the option, however, of accepting the premium even though it arrived late. Having specified, in the policy, that renewal premiums be paid by a certain time, defendant was free to waive that requirement and accept renewal premiums tendered after the established deadline. Defendant undeniably accepted the late premium in the instant case, depositing plaintiff’s check in defendant’s bank account.

Acceptance of late renewal payments, under Lake, Quinn and Mitchell, is evidence of a waiver by an insurance company of its right to insist on timely payment. Defendant’s acceptance of plaintiff’s check in the instant case, therefore, supplied substantial evidence of a waiver by defendant of its right to receive the renewal premium on or before 12:01 a.m., November 23, 1981. We consequently reject defendant’s argument that the trial court’s finding that defendant waived its right to insist on timely payment of plaintiff’s renewal premium is unsupported by substantial evidence or contrary to Missouri law.

The trial court was not obliged to accept Smith’s explanation that defendant’s acceptance of plaintiff’s late premium was for the purpose of initiating new coverage for a one-year period beginning November 28, 1981. The term of each one-year renewal under plaintiff’s continuing policy was from 12:01 a.m., November 23, to that same time on the ensuing November 23. Under Mitchell, 396 S.W.2d at 651[3], defendant, having accepted plaintiff’s renewal premium, could not impose an uncommu-nicated change in the renewed one-year term of plaintiff’s coverage.

We are mindful, of course, that Smith testified defendant would have sent plaintiff a receipt stating that the new “policy period” would be from November 28, 1981, to November 28, 1982. Plaintiff’s evidence, however, was that no such receipt was ever received. Whether defendant did in fact notify plaintiff that the new one-year period began November 28, 1981, was a fact issue for the trial court to determine. Defendant requested “a finding of facts and conclusion of law” generally, but defendant requested no finding on that specific issue. The trial court’s findings of fact included no finding on that issue. Accordingly, the finding on that issue is considered as having been made in accordance with the result reached. Rule 73.01(a)(2), Missouri Rules of Civil Procedure (14th ed. 1983).

In that connection, we observe that the letter of December 11, 1981, from defendant’s regional claims supervisor to plaintiff, did not mention a new period of coverage beginning November 28, 1981. That letter, in blunt and certain prose, told plaintiff that his policy had expired November 23, 1981, and that the loss had occurred November 24. Coverage was denied “due to the policy having lapsed because of nonpayment of premium.”

By the time the letter was written, plaintiff’s premium had, of course, been in defendant’s hands for two weeks. The letter, however, wholly ignored plaintiff’s payment of the premium and its acceptance by defendant. The explanation for keeping the premium which Smith offered two years later at trial is nowhere found in the letter. The significance of that omission was obviously not lost on the trial court.

Defendant’s reliance on Stone v. M.F.A. Mutual Insurance Co., 663 S.W.2d 774 (Mo.App.1983), is misplaced. There, the insurer, in two separate written communications to the insured, made it plain that delinquent payment of a premium, if accepted by the insurer, would result in resumption of coverage effective the day the insurer received payment. Defendant produced no such communication in the instant case, and nothing in plaintiff’s policy so provided.

The judgment is supported by substantial evidence, is not contrary to the weight of the evidence, and, in the respects referred to herein, neither erroneously declares nor erroneously applies the law.

Judgment affirmed.

HOGAN, TITUS, FLANIGAN and MAUS, JJ., concur.

      . We take judicial notice that November 1, 1981, was a Sunday, so we assume the notice was not sent that day.

      . Trial occurred December 15, 1983.

      . The trial court set out an alternative theory that an ambiguity existed in the policy regarding the expiration date of the coverage, which ambiguity the trial court resolved in favor of plaintiff. Inasmuch as we affirm the judgment on the basis set out in the opinion, we need not, and do not, comment on the trial court’s alternative theory.


author: CROW, Judge.

text:
    STATE of Missouri, Respondent, v. David LEE, Appellant.
    No. 13636.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 31, 1984.
    David Robards, Joplin, for appellant.
    John Ashcroft, Atty. Gen., T. Chad Far-ris, Asst. Atty. Gen., Jefferson City, for respondent.
   CROW, Judge.

David Lee (“defendant”), found guilty by a jury of burglary in the first degree, alleged to have been committed on or about September 8, 1982, was sentenced as a persistent offender to 25 years’ imprisonment. The persistent offender allegation was based on a June 27, 1979, conviction of the class 2 felony of burglary in the Circuit Court of Will County, Illinois, and a July 27, 1979, conviction of the class 3 felony of attempted burglary in the same court.

Among defendant’s assignments of error on appeal was a contention that the evidence regarding the two 1979 convictions was insufficient to warrant a finding beyond a reasonable doubt that the felonies whence those convictions arose were committed at different times. § 558.016.3, Laws 1981, p. 636; § 558.021.1(2), Laws 1981, p. 637. This court agreed, and in State v. Lee, 660 S.W.2d 394 (Mo.App.1983), declared the sentence void and remanded the cause to the trial court with directions to hold a new hearing on the persistent offender issue. Id. at 398.

The trial court complied, receiving evidence afresh on that issue. The State presented a “certified statement of conviction” as to each of the two Illinois cases, just as the State had done at the original hearing. For brevity, we hereafter refer to the certified statement regarding the burglary conviction as “Exhibit 4” and the certified statement regarding the attempted burglary conviction as “Exhibit 5,” the respective designations of those documents in the trial court. In addition, the State presented a certified copy of the bill of indictment in each of those cases. We hereafter refer to the copy of the bill of indictment in the burglary case as “Exhibit 1” and the copy of the bill of indictment in the attempted burglary case as “Exhibit 2,” the respective designations of those documents in the trial court. Exhibits 1 and 2 had not been presented at the original hearing.

Exhibit 1 alleged that the burglary was committed on or about January 30, 1979. Exhibit 2 alleged that the attempted burglary had occurred on or about February 26, 1979. Additionally, the alleged sites of the two offenses were different, as were the alleged residents of the respective properties.

Defendant presented no evidence that either of the offenses was committed at any time or place other than as alleged.

The trial court found that the offenses were committed at different times, and entered a new judgment assessing the same sentence as before. Defendant appeals anew.

Defendant’s first point;

“The trial court erred in finding the defendant to be a persistent offender as the exhibits purporting to establish the alleged prior convictions failed to comply with the statutory requirements so as to be admissible and without such exhibits the evidence was insufficient to support a finding that the defendant was a persistent offender beyond a reasonable doubt.”

The point obviously contravenes Rule 30.06(d), Missouri Rules of Criminal Procedure (15th ed. 1984), as it nowhere states wherein and why the exhibits failed to comply with the “statutory requirements” for admissibility. The point neither identifies the statute or statutes on which the point is based, nor does it provide any hint as to which requirements were unfulfilled.

We have nonetheless examined the argument portion of the brief and have extracted therefrom what we perceive to be defendant’s contention. Before stating it, however, we must describe the manner in which Exhibits 1, 2, 4 and 5 are certified.

Appended to each of the four exhibits is a one-page certificate composed of three sections. The certificates appended to Exhibits 4 and 5 are identical except that, as shown below, each certificate identifies the individual case number of the conviction to which it refers.

The first section of the certificates appended to Exhibits 4 and 5 states:

I, Sam H. Paul,
Clerk of the Circuit Court in and for said County, in the State aforesaid, do hereby certify the foregoing to be a true, perfect and complete copy of statement of conviction for David P. Lee, Case No. [pertinent number].
Dated November 10, 1982”
Beneath the date is a line on which the signature “Sam H. Paul” appears. Under that line are the printed words: “Clerk of the Circuit Court.”
The next line is set up like this:
“By -
(Deputy)”
On that line are handwritten initials appearing to be “IM” or “SM.”
Also appearing in this section is an imprint of a seal: “Circuit Court, Will County, Illinois, Twelfth Judicial Circuit.”
The second section of the certificates appended to Exhibits 4 and 5 states:
I, Charles P.
Connor, Judge of the Circuit Court of said County, do hereby certify that Sam H. Paul, whose name is subscribed to the foregoing Certificate of Attestation, now is, and was at the time of signing and sealing the same, Clerk of the Circuit Court of Will County aforesaid, and keeper of the Records and Seal thereof, duly elected and qualified to office; that full faith and credit are and of right ought to be given to all his official acts as such in all Courts of Record and elsewhere; and that his said attestation is in due form of law, and by the proper officer.”

Beneath this is a line on which an illegible signature appears. Under that line is the printed word: “Judge.”

Also appearing in this section is an imprint of the seal described earlier.

The third section of the certificates appended to Exhibits 4 and 5 states:

I, Sam H. Paul,
Clerk of the Circuit Court in and for said County, in the State aforesaid, do hereby certify that Charles P. Connor, whose genuine signature appears to the foregoing certificate, was at the time of the signing the same, Judge of the Circuit Court of said County duly commissioned and qualified; that full faith and credit are and of right ought to be given to all his official acts as such in all Courts of Record and elsewhere.
Dated November 10, 1982”
Beneath the date is a line on which the signature “Sam H. Paul” appears. Under that line are the printed words: “Clerk of the Circuit Court.”
The next line is set up like this:
“By -
(Deputy)”

On that line are handwritten initials appearing to be “IM” or “SM.”

Also appearing in this section is an imprint of the seal previously described.

The certificates appended to Exhibits 1 and 2 are identical to the certificates appended to Exhibits 4 and 5, with these exceptions: (1) the certificates appended to Exhibits 1 and 2 identify the respective bills of indictment rather than statements of conviction, (2) said certificates are dated October 24, 1983, in the first and third sections, (3) said certificates bear handwritten initials appearing to be “cb” or “ck” above the “Deputy” line in the first and third sections, (4) the name of the judge in the second section is Robert R. Buchar, and (5) a legible signature, “Robert R Buchar,” appears on the “Judge” line in the second section.

Additionally, it is arguable, from visual inspection, that the signatures “Sam H. Paul” on the certificates appended to Exhibits 1 and 2 were not written by the same hand that penned the signatures “Sam H. Paul” on the certificates appended to Exhibits 4 and 5.

The argument portion of defendant’s brief reveals that the statute on which he bases his first point is § 490.130, RSMo 1978, which provides, in pertinent part:

“The records and judicial proceedings of any court ... of any state, attested by the clerk thereof, with the seal of the court annexed, if there be a seal, and certified by the judge ... of the court to be attested in due form, shall have such faith and credit given to them in this state as they would have at the place whence the said records come.”

Defendant maintains that the signatures “Sam H. Paul” in the first and third sections of the certificates appended to Exhibits 4 and 5 were not in fact written by Sam H. Paul, but were instead written by “some unnamed person whose status is not shown on the certificates and whose initials may be IM.” Defendant makes a similar complaint as to the signatures “Sam H. Paul” in the first and third sections of the certificates appended to Exhibits 1 and 2, insisting that those signatures were made by an unnamed person “whose initials may be CK.”

Defendant asserts that inasmuch as Sam H. Paul is shown to be the Clerk of the Circuit Court of Will County, Illinois, and the certificates are not signed by him or by anyone who is shown to have authority to execute such certificates, said certificates are not in the form required by § 490.130, and therefore Exhibits 1, 2, 4 and 5 should not have been received in evidence. Absent those exhibits, says defendant, there was no evidence of the convictions on which the persistent offender allegation was based. Consequently, according to defendant, the judgment must be reversed and the cause remanded for retrial, with punishment to be assessed by the jury if there be a verdict of guilty.

The point is answered by State v. Brown, 476 S.W.2d 519, 522-23[2-4] (Mo.1972), a prosecution under the second offender procedure, §§ 556.280-.290, RSMo 1969, repealed effective January 1, 1979, by Laws 1977, pp. 662-63. There, the accused attacked the proof of an Indiana conviction by asserting that the putative signatures of the clerk of the court on two certificates were “so obviously not executed by the same person as to destroy the presumption of regularity.” Id. at 523. Rejecting the contention, the Supreme Court of Missouri pointed out that the questioned documents bore the signature of the judge and the seal of the court, and that inasmuch as there was a presumption of genuineness of the clerk’s signatures, the burden was upon the accused to rebut that presumption. The accused, however, produced no such evidence. Id.

Such are the circumstances in the case before us. The second sections of the certificates appended to Exhibits 1, 2, 4 and 5 bear the signature of a judge of the Circuit Court of Will County, Illinois, who certifies that “Sam H. Paul, whose name is subscribed to the foregoing Certificate of Attestation, now is, and was at the time of signing and sealing the same, Clerk of the Circuit Court of Will County aforesaid, and keeper of the Records and Seal thereof, duly elected and qualified to office.” (Emphasis added.) The judge further certifies that the attestation of Sam H. Paul “is in due form of law, and by the proper officer.” (Emphasis added.)

At the persistent offender hearing, the trial court asked defendant if he had any evidence that the signatures of Sam H. Paul were not genuine. Defendant presented none. We find defendant’s first point indistinguishable from Brown, which is binding on us. Mo. Const, art. V, § 2; State v. Dunn, 615 S.W.2d 543, 550[15] (Mo.App.1981). Defendant’s first point is, accordingly, denied.

Defendant’s second, and final, point is:

“The trial court erred in admitting into evidence State’s Exhibits 1 and 2 as these exhibits had not been used at the first hearing on defendant’s alleged prior convictions and the State was barred from introducing such additional evidence on that issue by the double jeopardy clause of the federal and state constitutions.”

This contention was fully addressed in this Court’s denial of defendant’s alternative motion for rehearing or transfer to the Supreme Court of Missouri following the original opinion herein. Lee, 660 S.W.2d at 398-400. The issue was ruled adversely to defendant at that time, and his present brief cites no new authority indicating that ruling was wrong. Consequently, we adhere to that ruling and deny defendant’s second point.

Although defendant heretofore requested oral argument, we have, in adjudicating his two points, determined that oral argument would not be beneficial. Accordingly, the request for oral argument is denied per our Special Rule 1(e), p. 457, Missouri Rules of Court (15th ed. 1984).

Judgment affirmed.

PREWITT, C.J., HOGAN, P.J., and MAUS, J., concur.

      . Other issues were to be resolved upon remand; however, those issues are not pertinent to the present appeal.


author: LOWENSTEIN, Presiding Judge.

text:
    Dell R. WOTEN and Shirley Woten, Appellants, v. Kenneth A. DAY and Culp Truck Lines, Inc., Respondent.
    No. WD 35290.
    Missouri Court of Appeals, Western District.
    Jan. 15, 1985.

      George A. Tyree, Blue Springs, for appellants.
    Don B. Roberson, John P. Poland, Don B. Roberson, Kansas City, for respondent.
    Before LOWENSTEIN, P.J., and SOM-ERVILLE and NUGENT, JJ.
   LOWENSTEIN, Presiding Judge.

This appeal involves a collision between a motorcycle driven by appellant, Dell Woten and a 28 foot truck owned by respondent, Culp, and driven by respondent, Kenneth Day. Woten was “test driving a new Honda motorcycle” and driving east through an intersection, after stopping for a stop sign, and Day was making a left hand turn onto the same road to go west, thus temporarily blocking the east bound lane. Woten slammed on his brakes and his cycle slid into the left rear end of the truck causing extensive bodily injury to Woten. The accident occurred on September 5, 1979. At trial, a jury returned a verdict for respondents, finding Woten guilty of contributory negligence.

The only point on appeal concerns jury Instruction No. 11 (and the parallel Instruction No. 15 for Mrs. Woten’s loss of consortium claim) which read:

Your verdict must be for both defendants if you believe:
First, either:
Plaintiff Dell Woten drove at an excessive speed, or plaintiff Dell Woten failed to keep a careful lookout, and Second, plaintiff Dell Woten, in any one or more of the respects submitted in paragraph first, was thereby negligent, and
Third, such negligence of plaintiff Dell Woten directly caused or directly contributed to cause any damage Dell Woten may have sustained.

The Wotens’ concede that there was conflicting evidence regarding the speed of the motorcycle. Their only contention on appeal is there was no substantial evidence to support the submission of the “careful lookout” alternative.

Instructions must be supported by the evidence, and when, as here, the instruction states more than one element of negligence in the disjunctive, there must be substantial evidence tending to prove each element. Hill v. Barton, 579 S.W.2d 121, 130 (Mo.App.1979). Furthermore, in determining the sufficiency of the evidence to support the submission of a contributory negligence instruction, this court considers the evidence in the light most favorable to the defendant, giving it the benefit of all favorable inferences, and disregarding plaintiffs evidence unless it tends to support the giving of the instruction. George v. Gross and Janes Co., 634 S.W.2d 579 (Mo.App.1982).

As to the particular instruction on failure to keep a careful lookout, there must be substantial evidence from which the jury could find that in exercising the highest degree of care, Woten could have seen the other vehicle in time to have taken effective precautionary action to avoid the collision, had Woten been keeping a careful lookout. Burrage v. McGee, 644 S.W.2d 374, 376 (Mo.App.1982). This court believes the following facts support the submission of this instruction.

The distance between the intersection where Woten was stopped, and the driveway from which Day was pulling out was some 300 feet. There were no obstructions. Day’s truck started from a position of fourteen to fifteen feet from the south edge of the street. Day testified that when he started forward, Woten was still at the stop sign; when the front of the truck entered the street, and he was preparing to turn left, Woten had just started across the intersection. An independent witness testified Woten was standing still at the stopsign when the defendant pulled onto the road and further testified that as Woten started across the intersection, he had his front wheel off the ground, executing what is commonly called a “wheelie.” Woten testified his speed was 25 m.p.h. Considering this evidence along with the judicially noticed fact that a vehicle travels in feet approximately one and one-half times its speed stated in miles per hour, and that reaction time is only ¾ of a second, Burrage, supra, it is reasonable to infer that Woten in the exercise of the highest degree of care, could have seen Day’s truck blocking his lane some 300 feet distant in time to have taken evasive precautionary action.

The judgment is affirmed.

All concur.


author: CLARK, Judge.

text:
    CITY OF COLUMBIA, Missouri, A Municipal Corporation, Plaintiff/Appellant, v. L.D. and Anna BAURICHTER, Defendants/Appellants, Anderson Heirs, Defendants/Appellants, Fred and Mabel Coats, et al. Defendants/Respondents.
    No. WD 35463.
    Missouri Court of Appeals, Western District.
    Jan. 15, 1985.

      Thomas M. Schneider, Jones & Scott, Columbia, for City of Columbia.
    George A. Spencer, Columbia, for L.D. & Anna Baurichter.
    Jeffrey 0. Parshall, Knight, Ford, Wright, Atwill & Parshall, Columbia, for Anderson Heirs.
    David V. Bear, Bear, Hines & Thomas, Columbia, for Fred Coats, et al.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   CLARK, Judge.

This is a condemnation suit in which the City of Columbia has acquired land for a public park. Controversies existed as to ownership interests in the lands taken and in the condemnation awards and motions were filed seeking apportionment of the funds among the various claimants. This appeal is prosecuted by three of the parties who contend the court erred in its judgment ruling on those claims.

The land taken in condemnation is an abandoned strip of M-K-T Railroad right-of-way 100 feet in width extending generally from northeast to southwest across the southwest quarter of Section 28, Township 48, Range 13 in Columbia, Boone County. As described in the condemnation petition and in the awards made by the commissioners, the property was divided into four tracts. Tract A is the southerly one-half of the strip, being a parcel 50 feet in width and approximately 3300 feet in length. Tracts B, C and D together comprise the north one-half of the strip and are also 50 feet in width. These latter tracts are unequal, Tract B being 1.171 acres more or less, Tract C being 0.811 acres more or less and Tract D being 1.56 acres more or less.

The commissioners’ report assessed damages for the taking of Tract A at $28,600, for Tract B at $40,500, Tract C at $15,700, and Tract D at $14,800. After the commissioners’ report was filed, the city deposited the total award of $99,600 with the court and the motions for apportionment were filed by the various interested defendants.

Because of the disposition made of this appeal, it is unnecessary to describe in detail the bases on which the contesting defendants asserted their respective claims to the condemnation proceeds. It will suffice to say that the trial court was called upon to construe the intent and effect of various deeds given in the late nineteenth century to create the railroad right-of-way and to decide which of the contesting claimants owned the land by reverter after abandonment of the rail line in 1977.

Appellants Baurichter claim all of the proceeds of the awards for the four tracts and appeal from the trial court’s order declaring them to have owned only the south one-half of the right-of-way. Appellants designated as the Anderson heirs, being sixteen individuals, also claim all of the award proceeds and they appeal from the trial court’s order which found that the Anderson heirs had no interest in the condemned property. The City of Columbia, as intervenor in the motion hearings, appeals and supports the claim of the Anderson heirs.

The respondents are the Tarleton Development Corporation, Fred and Mable Coats, Gary and Sarah Sapp and Fred and Ann Riddle. The trial court apparently ruled that all of these respondents owned the north one-half of the right-of-way. Respondents claim no error in that decision nor in the ruling favoring appellants Bauri-chter and rejecting the claim of the Anderson heirs.

The evidence presented to the trial court in support of the respective motions for division of the condemnation proceeds consisted entirely of documents and a stipulation. On November 2, 1983, the court entered its Memorandum Decision which concluded with the following judgment:

“It is thus the decision of this court that the Defendants Anderson, et al are not entitled to any of the condemnation proceeds in this case, that the Defendants Baurichter, et al are entitled to one-half of said proceeds, and that the Defendants Coats, et al are entitled to the other one-half of said proceeds.”

This entry was supplemented on November 9, 1983 with the following:

“Judgment in memorandum decision of November 1, 1983 amended as follows: In ‘Conclusion’ portion of memorandum decision, the judgment should be that the deft’s Anderson et al are not owners of any real estate in the Southwest Quarter of Section 28, and that the D’s Bauri-chter, et al are the owners of the South half of the railroad right of way in that Quarter Section and the Deft’s Coats et al are the owners of the North half of the railroad right of way in that Quarter section. The original decision implies division of proceeds on one half and one-half basis and such is incorrect.”

Motions for distribution of condemnation awards among defendants are procedurally controlled by § 523.053, RSMo.1978. The statute sets out a complete scheme whereby awards made jointly to a number of defendants claiming interests in the condemned lands may obtain distribution of the awards by agreement or, failing that, by an adjudication made by the court. The statute grants a right of intervention to the plaintiff in the condemnation action and also confers the status of a final judgment upon the trial court’s decision allocating the award among the contesting parties. The significance of the judgment extends not only to the immediate division of the award. The percentage shares set off to each party also control in the trial of exceptions and govern any additional compensation to be paid or refund due in the event the award is reduced. The determination of shares upon the issues tried under the motions is final irrespective of future developments in the case.

The statute expressly requires the court hearing the cause on motions for distribution to “ * * * determine the percentage of the award to which each party having an interest therein is entitled.” The judgment in this case quoted above did not make the determination of issues which the statute requires. The trial court therefore did not exhaust its jurisdiction and the judgment is not a final judgment which may be considered here on appeal.

The first deficiency in the judgment, as modified, is that it makes no declaration of the percentage interests of the parties in the award. Instead, it purports to decide ownership claims to the condemned land. Quite apparently, the judgment errs in reciting present ownership by any of the defendants because the land stands condemned, it is owned by the City of Columbia and all claims are transferred to the award proceeds. Apart from this technical misdirection, however, the recitations in the successive entries create doubt as to what the court did intend regarding the award share to be set over to the Baurichters. In the first entry, these defendants were allowed “one half of the proceeds”, presumably one-half of $99,600. The second entry disclaims any intent to grant any such allowance but it fails to say what percentage the Baurichters were to receive.

The same difficulty necessarily also follows upon the declaration that “Deft’s Coats et al” are the owners of the remainder of the condemned land. Until the court declares what percentage of the award is allotted to the Baurichters, the balance remaining for the other defendants obviously cannot be computed. As to these remaining defendants, however, a further deficiency in the adjudication exists.

According to the pleadings, and there appears to have been no evidence to the contrary, the “Deft’s Coats et al” do not share a common claim to any of the proceeds. The corporation, Tarleton Development owned, prior to condemnation, Tract B subject to a security interest of a mortgagee. Gary M. Sapp and Sarah F. Sapp and W. Fred Riddle, Jr. and Ann Ashley Riddle owned Tract C and Fred and Mabel Coats owned Tract D. Each of these defendants expressly disclaimed any interest in the award proceeds except as to the amounts set by the commissioners for the particular tracts indicated. The judgment is patently erroneous when it groups all of these defendants together and ignores the divisible interests to which the parties themselves agree.

The judgment as entered also errs in its failure to recognize that the four tracts of land taken were defined separately in the condemnation petition and separate awards of damages were made for each. The motions required the court to determine the percentage interests of the defendants in each award. It may be that if, as the court declared, the Baurichters were the owners of the south one-half of the right-of-way, they are thereby entitled to 100% of the award made for the taking of Tract A. The language of the two entries, however, suggests that the court may have entertained some doubt, else it could readily have set apart the awards in proportions, as it initially attempted to do, rather than make a declaration of ownership in the land.

The issues of ownership in the land prior to condemnation were hotly contested. The Baurichters did not concede that their claim was limited to Tract A. The content of the judgment entry does not settle the question of whether the award made for Tract A corresponds in terms of compensation to the Baurichters for their actual ownership interests prior to condemnation. So, too, does the judgment fail to allot the awards for Tracts B, C and D as mentioned above. The judgment is incomplete and we will not undertake to speculate on its intended result.

The appeal is dismissed.

All concur.


text:
    STATE of Missouri, Respondent, v. Bette Catherine WITT, Appellant.
    No. WD 35627.
    Missouri Court of Appeals, Western District.
    Jan. 15, 1985.

      Mark L. Widens, Kansas City, for appellant.
    Mary Elise Burnett, Asst. Atty. Gen., Jefferson City, for respondent.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   CLARK, Judge.

Appellant was convicted by a jury of the offense of possession of marijuana and was sentenced to one year in the county jail and fined $1000.00. On this appeal, she contends the trial court erred in failing to sustain her motion for directed verdict at the close of the evidence and in permitting the state to introduce evidence, over objection, as to conduct of appellant’s husband and another in their apparent cultivation and harvest of marijuana. Affirmed.

The evidence entitled the jury to find that in the late summer and fall of 1982, police officers became aware that marijuana was being grown in a cornfield in Randolph County. The area was placed under surveillance and in September, four individuals dressed in camouflage clothing were seen to come out of the field. One was later identified as appellant. By October, signs that the marijuana was being cut were observed. Investigation disclosed trash bags admittedly containing more than 35 grams of marijuana, a Tupperware container, an open box of trash bags, a corn knife and a canteen. Appellant’s husband and a third party were found to be in the field and they were arrested. The hands of each were stained with a substance later determined to be the active ingredient of marijuana.

That same evening, while the officers were completing their search of the area, appellant drove up with a quantity of beer and two carry-out meals. She was questioned as to her identity, was recognized by one of the officers as a person seen in the field in September and she was placed under arrest. Appellant was searched and found to be in possession of a bag of marijuana and a marijuana cigarette, the aggregate weight of both being less than 35 grams.

The information under which appellant was tried charged a violation of § 195.020, RSMo.1978, which prohibits possession of controlled substances. Although there is but one proscriptive statute covering possession of controlled substances, the offense in cases of marijuana may be a felony or a misdemeanor under the punishment statute, § 195.200, RSMo.1978, depending on whether the quantity is more or less than 35 grams. Appellant was charged with possessing more than 35 grams, a felony. As instructed, the jury was to find appellant guilty or not guilty, first as to possession of more than 35 grams, and if not guilty of possessing the larger quantity, appellant was to be convicted or acquitted of possessing marijuana without regard to quantity. The jury returned a conviction as to the latter, thus finding appellant guilty of a misdemeanor.

In the first point on this appeal, appellant contends the trial court erred in failing to sustain appellant’s motion for discharge at the close of the evidence. She argues that the case should not have gone to the jury because there was no evidence to support the offense charged, possession of more than 35 grams. She freely acknowledges the conclusive proof that she possessed the cigarette and bag of marijuana but argues that the state assumed a burden under the information to prove the felony quantity and when that proof was not forthcoming, the case was at an end.

Initially, it appears that the state was primarily basing the charge and prosecution of appellant on a theory of joint constructive possession of the harvested marijuana by appellant, her husband and the companion, all of whom were arrested at approximately the same time. That proof failed, and the state does not contend here otherwise, because appellant was no where near the bags of harvested marijuana, the material was in an open field and there was no evidence appellant had participated in gathering the marijuana. As a part of its case, however, the state did prove the possession by appellant on her person of marijuana in a quantity of less than 35 grams. The state’s argument to the jury was, first that a case of constructive possession by appellant of the bagged marijuana justifying the felony conviction had been made. If, however, the jury was unable to find that constructive possession they should at least convict of the misdemeanor as to which there was no actual fact dispute.

Appellant's argument is, in the main, in support of a contention which the state does not resist, that is, no submissible case was made on the felony charge of possession of more than 35 grams of marijuana. While conceding that proof of possession of less than 35 grams of the substance was conclusive, appellant rests her appeal on the assumption, for which no case authority is supplied, that failure of proof on the felony charged precluded submission of any charge to the jury. That assumption is erroneous and defeats the argument.

It is first appropriate to note that appellant and the state take no issue with the underlying hypothesis, essential to both sides of the contention, that misdemeanor possession of marijuana is a lesser included offense of felony possession. As this court noted in State v. Neighbors, 613 S.W.2d 143, 146 (Mo.App.1980), the lesser included offense concept includes the condition that all legal and factual elements of the felony offense, as here, were included in the case made as to the misdemeanor offense. Without expressing any opinion on the question because no issue on the subject is made by appellant, we indulge the parties’ assumption that the state’s proof here as to felony possession failed only as to quantity, but sufficed otherwise both factually and legally to make a case of misdemeanor possession.

The question posed in this situation is whether it is error to submit a criminal case to the jury on instructions as to greater and lesser included offenses where only the greater offense is charged and insufficient evidence is presented to support a conviction on the greater charge.

Several cases have announced the proposition that submission of a more serious offense, even though not sustained by the evidence, is not prejudicial when the verdict of conviction is for a lesser included offense that is sustained by the evidence. State v. Brooks, 567 S.W.2d 348, 352 (Mo.App.1978) and, more recently, State v. Barton, 602 S.W.2d 479, 481 (Mo.App.1980). Upon examination of the earlier authorities cited and relied on in Brooks, it appears the rationale is that an accused has no standing to complain as to insufficiency of evidence to support a charge on which he has been acquitted.

Here, appellant was not aggrieved by the court’s submission to the jury of the felony possession charge because she was acquitted of that offense. Notwithstanding that proposition, however, she contends there was actual prejudice because submission of the felony charge resulted in a compromise verdict in which the jury convicted of the lesser offense but assessed the maximum sentence. Again, however, acquittal on the felony charge vitiates any standing appellant may have had to complain about the instruction. State v. Eskina, 606 S.W.2d 270 (Mo.App.1980).

In her second and final point appellant contends the trial court erred in failing to sustain her objections and to exclude from evidence all testimony and exhibits showing the conduct of appellant’s husband and his companion and the evidence about the marijuana grown and harvested in the cornfield. She says that evidence did not support any finding of guilt on her part under a theory of constructive possession, but merely inflamed and prejudiced the jury against her.

The point requires only minimal discussion. We first note that all evidence which the prosecution offers in a case is necessarily designed to prove the guilt of the accused and is therefore prejudicial. A defendant makes no point on appeal by contending that the state’s evidence was prejudicial.

As to the complaint that the evidence was not relevant, the argument is one couched in retrospect based on the claim that no case of felony possession was made against appellant. The state’s theory was that appellant was in constructive possession of the marijuana which had apparently been grown and harvested by appellant’s husband and his companion. The evidence about which appellant now complains was offered and was necessary to support that theory of prosecution. Its’ quality was untested until the proof was in. This is not a case where irrelevant evidence was sought to be suppressed in a pretrial hearing, but merely an attempt by the state, unsuccessful as it turned out to be, to make its case.

Whether challenged evidence offered at trial is excludable on grounds of relevancy is an issue which the trial court must decide in the exercise of its discretion. State v. Gilmore, 661 S.W.2d 519, 523 (Mo. banc 1983). On appeal, the trial court is not to be held in error absent a showing of abuse of discretion in its rulings where objections are based on relevancy. From the recitation of the facts of this case as set out in this opinion, it is obvious the trial court committed no abuse of discretion when it permitted the state to attempt to make its case by showing the activities of appellant’s husband and his companion.

The judgment is affirmed.

All concur.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Kenneth Burton BROOKS, Appellant.
    No. WD 35650.
    Missouri Court of Appeals, Western District.
    Jan. 15, 1985.
    L.R. Magee, Hines & Magee, Kansas City, for appellant.
    Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   ORDER

PER CURIAM.

Appeal from convictions and sentences for sale of Schedule I and Schedule II controlled substances pursuant to § 195.-017, RSMo.1978.

Judgments and sentences affirmed. Rule 30.25(b).