text:
    STATE of Missouri, Respondent, v. Craig FARRELL, Appellant.
    No. 47951.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 30, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 18, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      Henry B. Robertson, Public Defender, St. Louis, for appellant.
    John Munson Morris, Jefferson City, for respondent.
   REINHARD, Chief Judge.

Defendant was convicted of assault in the first degree, a violation of Section 565.-050, RSMo.1978 and sentenced to a term of ten years imprisonment. He appeals. We affirm.

On January 21, 1983, defendant, his brother, Darrell Farrell, and Andre Fowler were waiting for a Bi-State bus on Page Avenue in the City of St. Louis. As a bus driven by James Nathan approached the trio, one of them stepped out into the street in front of the bus. The bus stopped and after the three boarded, the driver told one of them that it was dangerous to do that because the brakes could fail. Defendant responded by cursing the driver and stating he could stand where he wanted. The driver did not see defendant deposit his fare and followed defendant to the rear of the bus where he stated he would have to call the police. Defendant told him to go ahead and stated if “you don’t go on and drive the bus this is what’s going to be for you.” At that point, defendant revealed a knife in his hand. The driver returned to the front of the bus and continued driving. The driver and the three men engaged in a continuing argument. Near Vandeventer and Finney, the three came up to the front of the bus and the argument continued. The driver headed towards the Fox theatre where he knew police would be on duty. At the intersection of Enright and Delmar, the driver stopped the bus at a red light. At that point, Andre Fowler struck the driver with his fist and defendant stabbed him with the knife in the face and neck several times. All three then left the bus.

Defendant was apprehended a short distance away soon after this incident. According to defendant, he had a bus pass and was lawfully on the bus. He testified the driver was armed with a knife, became belligerent and refused to let them off the bus at their destination. The driver initiated a fight by swinging his right hand at Andre Fowler. The driver then came at defendant with a knife, whereupon defendant stabbed him in self-defense. The victim, one of the bus passengers and two police officers testified for the state. Only defendant testified in his behalf.

On appeal, defendant contends that the trial court erred in overruling defendant’s objection to that portion of the state’s closing argument that sought to draw an adverse inference from defendant’s failure to call certain witnesses. During closing argument the assistant prosecuting attorney stated, “His brother’s not here. This brother, the brother, Darrell, that was there that night who saw the incident, who was with him.” Defendant objected and the court overruled the objection. The assistant prosecuting attorney continued:

All the witness [sic] are equally important to both sides. Mr. Bell has full and complete access to any witness in this case. And he can bring any witness in that he wants. Why isn’t Andre Fowler here? Why isn’t Darrell Farrell here? That’s not one person here. Defendant elected to tell his story. And now he’s asking you to believe that pitiful story on his word alone. Nobody else is coming in.

Defendant contends the state is prohibited from commenting on defendant’s failure to call these two witnesses. It is well settled that one party may argue an adverse inference from the failure of the other party to produce a witness who would be reasonably expected to give testimony in his favor. State v. Moore, 620 S.W.2d 370, 373 (Mo. banc 1981). That rule, however, does not allow an adverse inference where the witness is equally available to the state and the defendant. A witness becomes more available to one or another of the parties when the opportunity of the party for knowledge or control over the witness, the relationship or the community of interest between them, or from the prior declarations and statements of the witness, a natural expectation follows that the witness would testify in favor of the one party against the other. State v. Wilkerson, 559 S.W.2d 228, 229 (Mo.App.1977).

Participation or involvement in a crime with the defendant gives rise to a common interest between defendant and the witness. State v. Floyd, 598 S.W.2d 517, 520 (Mo.App.1980). In the case at bar, the state’s evidence indicated that Andre Fowler and defendant jointly assaulted the victim; Fowler with his fists and defendant with a knife. According to defendant’s testimony, the bus driver assaulted Fowler and defendant. Defendant had known Fowler for three years and considered him a good friend. We have concluded that because of their close relationship and the community of interest between them, Fowler could not be considered to be equally available to both parties. The trial court did not err in allowing the state to comment on the defendant’s failure to produce Fowler.

The state was also entitled to comment on the failure of the defendant to produce his brother, Darrell. Because of defendant’s relationship to Darrell, it could be expected that he would testify more favorably for defendant than for the state, particularly as to who was the aggressor in this confrontation. State v. Williams, 625 S.W.2d 148, 149 (Mo.App.1981); See State v. Ivory, 609 S.W.2d 217, 221 (Mo.App.1980).

Affirmed.

CRANDALL and KAROHL, JJ., concur.


source: Caselaw Access Project

author: PUDLOWSKI, Judge.

license: Public Domain

text:
    WESTOAK REALTY & INVESTMENT, INC., Plaintiff-Appellant, v. Guadaulupe HERNANDEZ, et al., Defendants-Respondents.
    No. 47412.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 7, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 18, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      Claude C. Knight, St. Charles, for plaintiff-appellant.
    Clinton B. Roberts, Farmington, for defendants-respondents.
   PUDLOWSKI, Judge.

This cause of action is on transfer from the Supreme Court of Missouri for reconsideration in light of their recent decision in Belote v. McLaughlin, 673 S.W.2d 27 (Mo. banc 1984).

Westoak Realty and Investment, Inc. (Westoak), appellant, brought this action against Guadalupe and Wilma Hernandez, respondents, to recover on a promissory note executed by respondents. Appellant maintains the judgment of the trial court was against the weight of the evidence because appellant made a prima facie case and respondents failed to show that the claim was barred by the compulsory counterclaim rule or by res judicata and collateral estoppel. We affirm.

In July 1972, respondents executed a promissory note for $22,450 with interest and secured by a deed of trust and delivered it to appellant in conjunction with a construction contract between respondents and Custom Builders Corporation. Under the terms of the note, respondents were to make monthly installments from August 15, 1972 until March 15, 1973. Respondents defaulted on the note and in January 1975, appellant initiated foreclosure proceedings as per the deed of trust against the real property securing the note.

Respondents filed suit against appellant and Custom Builders Corporation in the Circuit Court of Ste. Genevieve County on January 23, 1975. Respondents sought to enjoin the foreclosure sale initiated by appellants and to require appellant to cancel the note and deed of trust. Respondents also sought damages against Custom Builders Corporation for allegedly defective construction of a house on the secured property. Respondents alleged appellant Westoak and Custom Builders Corporation were in reality the same entity.

The foreclosure under the power of sale in the deed of trust took place before the case came to trial and respondent amended the petition to set aside the sale. In Count II of the petition, respondent sought $5,000 damages from the trustee and appellant by reason of the unconscionable sale. Appellant had purchased the property for $500 at the foreclosure sale when the estimated value of the property was $6,000.

A default judgment was entered against appellant and Custom Builders Corporation on September 23, 1975. The court denied motions to set aside the default judgment. On appeal, this court reversed and remanded with instructions to the trial court to conduct further hearings on the motions. Hernandez v. Westoak Realty and Investment, Inc., 549 S.W.2d 906 (Mo.App.1977). After a rehearing, the trial court again denied the motions. On appeal, this court affirmed the denial of appellant’s motion, but reversed the trial court’s denial of the motion to set aside the default judgment against Custom Builders Corporation and remanded the case for trial. Hernandez v. Westoak Realty and Investment, Inc., 585 S.W.2d 548 (Mo.App.1979).

Appellant filed the present action against respondents February 4,1980 in the Circuit Court of St. Louis County. Appellant sought $29,239.71, which included accrued interest on the note and attorneys fees. Respondents in their answer pleaded appellant’s claim on the note was barred by the compulsory counterclaim rules and by res judicata and collateral estoppel. After a hearing, the trial court rendered judgment for respondents on March 3, 1983. This appeal follows.

There were no declarations of law asked or given by the trial court from which to ascertain the theory on which the case was decided. We, therefore, will not disturb the judgment of a trial court sitting as a jury if, from an examination of the record, we find any substantial evidence tending to show any reasonable theory on which the judgment may stand. J. Thomas & Son v. Brown, 168 Mo.App. 667, 154 S.W. 423 (1913).

As a result of our disposition of this appeal, it is only necessary to address appellant’s argument that respondents failed to show, as an affirmative defense, that appellant’s claim on the note was barred by Rule 55.32(a), which provides:

(a) Compulsory counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the Court cannot acquire jurisdiction. But, the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the Court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this rule.

Respondents argue appellant is barred from its present action by the failure to assert its claim on the note as a counterclaim when it was sued by respondents in Ste. Genevieve County for damages. Appellant, however, vigorously maintains it did not need to bring a counterclaim in the first suit between the parties because of the exception in Rule 55.32(a)(1). The rule states, inter alia, that a pleader need not bring a counterclaim if at the time the action is commenced, the possible counterclaim is the subject of another pending action.

Appellant argues its claim against respondents for defaulting on the promissory note was pending at the time respondents brought suit in Ste. Genevieve to enjoin the foreclosure sale. Appellant further argues the “pending action” was the foreclosure proceedings it had initiated.

To support this assertion, appellant argues “action” as used in Rule 55.-32(a)(1) means not only cases filed and pending in a court, but any legal rights that exist against another party. This argument is illogical and has no basis in law. The exception in Rule 55.32(a)(1) for “another pending action” plainly refers to judicial actions. While a suit or action to foreclose and a proceeding under power of sale to foreclose are equivalent in force or effect, power of sale foreclosure is nonjudicial. See, Nelson, Deficiency Judgments After Real Estate Foreclosures in Missouri: Some Modest Proposals, 47 Mo.L.Rev. 151, 162 (1982). As a result, appellant was not excused from filing its counterclaim.

Next, appellant argues it did not have an existing counterclaim in the first suit because the foreclosure sale had taken place. Appellant argues that until the court made a determination on respondents’ petition to set aside the foreclosure sale, appellant had no way of knowing whether to claim the full amount due on the note or the full amount minus the $500 received in the sale. Appellant’s argument is without merit. Appellant could have filed a counterclaim in alternative counts with one count seeking the total amount due and with the alternative count seeking a deficiency if the foreclosure sale was upheld.

Appellant’s reliance on Northwestern National Insurance Company v. Mildenberger, 359 S.W.2d 380 (Mo.App.1962), is misplaced. That case held the purchase at a foreclosure sale for the full balance due on a note ended the creditor-debtor relationship of the mortgagee and mortgagor, thereby terminating a claim upon the proceeds of insurance money that inured to the benefit of the mortgagee after a fire. Id. at 386. The present case is vastly different, with the most important distinction being the foreclosure sale was not for the full amount of the balance due on the note.

Appellant also has misinterpreted Schelp v. Nicholls, 263 S.W. 1017 (Mo.App.1924). In that case, the defendant pleaded an equitable set-off contending money from a trustee’s sale should be applied to the amount on the note. The court held the defendant was entitled to the set-off. Id. at 1021. The defendant also contended he was entitled to money he had paid the plaintiff. The court held this count could not be maintained as a counterclaim because at that point it could not be determined whether the proceeds of the foreclosure sale would cover the amount owed. Id. We do not see how the holding in Schelp supports appellant’s proposition it could not maintain a counterclaim seeking the entire balance due on the note or, in the alternative, for a deficiency judgment on the amount due after the foreclosure sale.

Appellant next argues a counterclaim was not necessary because the present parties were represented in different capacities in the first suit. Appellant cites Dalton v. Sturdivant Bank, 76 S.W.2d 425, 426 (Mo.App.1934), which held a party seeking a set-off must show mutuality and identity of the parties and subject matter. This principle has been applied in various cases where one of the parties is acting in a representative capacity. See e.g. Mercantile Trust Co. Nat. Ass’n v. Mosby, 623 S.W.2d 22, 24 (Mo.App.1981) (holding a defendant could not use a debt owed him by decedent in his representative capacity as officer and director of a corporation as a set-off against decedent’s personal claim against defendant) and Hickey v. Sigillito, 162 S.W.2d 638 (Mo.App.1942) (involving a counterclaim by an agent).

This case does not present a situation where one of the parties is acting in a representative capacity. Appellant was sued in Ste. Genevieve and is now suing in St. Louis County for its own, direct interests.

Appellant’s next point contends it was not required to bring a counterclaim because the claim did not arise out of the same transaction or occurrence that was the subject matter of the first lawsuit between the parties. Appellant argues the first suit concerned only the foreclosure sale and the allegedly defective construction of the house, whereas the present action involves the promissory note.

Appellant’s argument is not supported by the law in Missouri. In the recent decision of Belote v. McLaughlin, 673 S.W.2d 27 (Mo. banc 1984), our Supreme Court held recovery on a promissory note was barred by failure of the holder of the note to assert it as a counterclaim in an earlier suit filed by the makers of the note for damages for defective construction.

The failure of a party to bring a claim on a promissory note as a counterclaim against a third-party petition also was held to bar a later claim on the note in Harris v. Nola, 537 S.W.2d 636 (Mo.App.1976). The court’s opinion stated the term “transaction” in Rule 55.32(a) is intended to include all facts and circumstances constituting the foundation of the claim and shall be applied so as to bring all logically related claims into a single litigation. Id. at 639.

Applying those principles to the present case, we find the facts and circumstances that constitute appellant’s claim on the promissory note are the same as those that constituted the foundation of respondents’ first suit. In the first suit, respondents sought to enjoin and then to set aside the foreclosure sale initiated by appellant as a result of the default on the promissory note. Respondents also sought damages against Custom Builders Corporation for allegedly defective construction of a house. Respondents had alleged Westoak was a shell corporation disbursing money to Custom Builders Corporation under the promissory note at issue.

In summary, appellant’s claim on the note was part of the original transaction at issue in the first suit between these parties and should have been asserted as a counterclaim. The “piecemeal submission” of appellant’s claims cannot be permitted. Colley v. Commercial Credit Equipment Corp., 565 S.W.2d 713 (Mo.App.1978). Appellant’s failure to file a counterclaim in the first suit barred any subsequent action on the note.

We need not address appellant’s next point, which argues the suit was not barred by res judicata or collateral estoppel. Our holding that appellant’s claim was barred by the failure to assert a compulsory counterclaim is fully dispositive of this appeal. Accordingly, the judgment is affirmed.

CRIST, P.J., and SIMON, J., concur.

      . The common law remedies of set-off and re-coupment are included in the modern remedy of a counterclaim. Edmonds v. Stratton, 457 S.W.2d 228, 232 (Mo.App.1970).

      . We have considered the federal case of Pension Fund of Christian Church v. Younge, 74 F.R.D. 155 (E.D.Mo.1977) cited by appellant and do not find it to be persuasive under the facts of the present case.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Lance WARD, Jr., Defendant-Appellant.
    No. 47861.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 7, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 18, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      Henry Robertson, Asst. Public Defender, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.
   PUDLOWSKI, Judge.

Appellant, Lance Ward, Jr., was convicted of attempted rape and was sentenced to twenty years in the Department of Corrections and Human Resources. He appeals alleging trial court error in the admission of prior consistent statements of the victim and trial court error in overruling his motion for a mistrial during the state’s closing argument. We affirm.

The victim, a 47 year old woman, was a resident of the Edison Hotel located at 18th and Chestnut in the City of St. Louis, Missouri. She also worked at the hotel cafe. On February 17, 1983, she finished her shift at 10:15 p.m. and walked to a nearby 7-11 store for coffee, donuts and cigarettes.

Upon leaving the store, the victim crossed the street going back to the hotel. Appellant approached and grabbed her arm. He tried to induce her to go to a nearby tavern. She refused and the refusal angered him. Appellant then forced her into the alley beside the hotel. Dropping her groceries, she grabbed onto a rope and then a telephone pole but appellant tore her away and hit her two or three times in the face. She fell hitting her head on the pavement. Meanwhile, she was yelling to the desk clerk for help.

While the victim was lying upon the ground, appellant jumped on her. At this point, the police arrived and appellant was arrested after a foot chase.

Subsequently, the victim was taken to the police station. She was interviewed by Detective Harold Nation. Detective Nation’s report indicated that the victim had bought a half pint of Seagrams at the 7-11 store. According to the victim, when the written version of the interview was read to her, she told the police that the Sea-grams bottle did not belong to her. She stated at trial that discarded liquor bottles were common in that area.

Appellant objects to the admission of pri- or consistent statements made by the victim. At trial, the victim denied telling the police that she had purchased the Seagram’s whiskey. However, Detective Nation, on cross-examination, verified the statements in his report that the bottle of Seagram’s was among the victim’s purchases. On redirect, the prosecutor conducted the following examination over defense counsel’s objections.

Q Did Miss Vinton ever tell you at any time when you interviewed her that night that she had solicited this man?
A No.
A No, sir.
Q Did she at any time tell you that she had offered sex to this man for money?
A No, sir.

Defense counsel then detailed his objections, arguing that the state was not entitled to bring out prior statements as to which the victim had not been impeached by prior inconsistent statements. The prosecutor argued that defense counsel had “opened the door to hearsay testimony” and the court agreed, overruling the objection and commenting, “You’re trying to restrict it to the bottle of Seagram’s and I don’t think the rule is that strict”. The examination resumed:

The reporter read back the previous question as follows: Did she at any time tell you that she had offered sex to this man for money?

Q You may answer.
A No.
Q Did she at any time indicate to you that she had gone into that alley willingly?
A No.
Q What did she tell you about the circumstances of her going into that alley?
A She said she was dragged in there, forced into it.
Q What was your answer, sir?
A She said she was dragged and forced into it.
Q Did she ever indicate at any time that she removed her clothing willingly?
A No, sir.
Q How did she tell you that clothing was removed or altered or pulled?
A She said that he was pulling at it.

The scope and extent to which redirect examination of a witness shall be permitted to go is a matter to be left largely to the discretion of the trial court whose ruling will stand absent an abuse of that discretion. State v. Johnson, 539 S.W.2d 493, 503-4 (Mo.App.1976), cert. den’d., 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977). Further, the trial court has a broad discretion in determining the extent to which additional portions of a statement may be read into evidence to show the context of and circumstances under which the impeaching portion was made for the purpose of minimizing its impeaching force. State v. Beishir, 332 S.W.2d 898, 903 (Mo.1960).

In support of its argument, the state insists appellant was utilizing an innuendo that possession of alcohol coincides with having a “good time”. The state argues that appellant was reinforcing his defense that the victim had initiated the encounter. As a result, the state contends it was permissible on re-direct to question Detective Nation about the victim’s statements concerning consent and solicitation. We disagree.

We refuse to adopt the state’s contention that women who partake in liquor have a tendency to elicit sexual conduct. The state could have rehabilitated the witness by asking Detective Nation about the victim’s denial of ownership of the whiskey. It was error to solicit statements concerning the victim’s denial of consent.

However, upon examination of the evidence, we conclude that the admission of Detective Nation’s statements, while error, were not prejudicial. The statements of Detective Nation were cumulative and were corroborated by others. The victim testified that appellant forced her into the alley and pulled her slacks down. Officer Barry Hinchey testified that he observed appellant on top of the victim with his pants lowered and that the victim’s slacks were also lowered. The hearsay evidence of Detective Nation was cumulative and harmless. State v. Ousley, 668 S.W.2d 643, 645 (Mo.App.1984).

Appellant’s second argument concerns the state’s closing argument. The prosecutor made the following remark in the rebuttal portion of his closing argument to the jury:

And then you talked about Mr. Ward. The man who has been convicted of five different crimes. He’s been in the penitentiary twice. And as Mr. Lane says, this poor man whom nobody is going to believe, what does Mr. Ward have to gain from this or to lose? He knows what he has to lose because he knows what he did. And it’s in his interest to get up there and tell you it didn’t happen the way Mary Ann Vinton said it happened and he’s hoping that one or two of you may believe him because that’s what Mr. Lane wants. He doesn’t want a verdict in this case, he wants a hung jury. (Emphasis added).

We have reviewed the record, and recognize the broad discretion of the trial judge in closing arguments and conclude that appellant was not prejudiced by comments in the state’s argument.

Judgment affirmed.

CRIST, P.J., and SIMON, J., concur.


author: PUDLOWSKI, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gregory Allen MANNING, Defendant-Appellant.
    No. 48232.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 7, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 18, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      Charles M. Shaw, Clayton, for defendant-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.
   PUDLOWSKI, Presiding Judge.

Defendant was convicted of the second degree murder of Mark Walker which arose out of a shooting incident in which defendant also injured his wife, Brenda. On appeal, this court reversed and remanded the murder conviction for a new trial because defendant’s wife testified over his objection in violation of Section 546.260 RSMo 1978. State v. Manning, 657 S.W.2d 301 (Mo.App.1983). Before retrial, defendant and his wife were divorced and she testified in the second trial. Defendant was again convicted of second degree murder and sentenced to a term of twenty-five years imprisonment. He appeals raising five contentions of error. We find them to be without merit and affirm the conviction.

The evidence as presented in the first trial by the state was nearly identical to the evidence presented in the second trial and thus Judge Crist’s recitation of the facts in the first appeal serves us well:

Defendant and his wife were married in 1975, had one child and separated in March 1981. At the time of the shooting, in May 1981, defendant’s wife and child were living in a flat owned by defendant and wife. Shortly before that time, Julia Peckhorn and her young child had moved into the flat with wife and child.
After enjoying a movie on May 16, 1981, with their boyfriends, wife, Julia and the two boyfriends returned to the flat. Wife and her boyfriend (the victim) eventually retired to the master bedroom. Julia and her boyfriend visited in the living room. At about 2:00 a.m. on May 17, 1981, defendant appeared and asked to see wife. Julia went to the bedroom door and gave wife defendant’s message.
Wife met with defendant in the kitchen. Defendant was interested in a reconciliation. Wife was not. In fact, the two were scheduled to meet with an attorney later that day to discuss a divorce.
Defendant pulled a gun from his waistband. Wife fled from the kitchen in an attempt to warn the others in the apartment about the gun. Defendant shot her in the knee as she ran. He then stood at the entrance of the master bedroom and fired several shots into the room killing wife’s boyfriend. The police arrived shortly thereafter. Defendant told them he fired the gun “because she’s my wife.”

657 S.W.2d 301-02.

In the second trial, defendant testified in his own defense. He testified he had not carried a weapon onto the premises but rather picked up a weapon laying on the kitchen table which had been placed there by his wife and shot the victim, Mark Walker, in self defense.

Brenda testified in the second trial over defendant’s objection to the events surrounding the shooting as well as the reasons for her separation from defendant. Defendant’s first two points on appeal allege error in allowing her to testify at the second trial. He contends allowing her to testify placed him in double jeopardy; violated the “law of the case” as well as the doctrine of collateral estoppel. We find no merit to these contentions.

The judgment of conviction in the first trial was reversed because Brenda was allowed “to testify against defendant as the two were still married at the time of trial.” 657 S.W.2d at 302. Before retrial, Brenda and defendant were divorced. Section 546.-260 provides that: “[N]o person on trial or examination, nor wife or husband of such person, shall be required to testify, but any such person may, at the option of the defendant, testify in his behalf .... ”

The admissibility of a spouse’s testimony is determined according to the marital status at the time the testimony is offered, not at the time the offense was committed. State v. Dunbar, 360 Mo. 788, 230 S.W.2d 845, 848 (1950). The proscription in Section 546.260 “applies to the testimony of an individual if he or she is married to the defendant at the time of trial.” State v. Hankins, 642 S.W.2d 606, 611 (Mo.1982). As the Supreme Court stated in State v. Euell, 583 S.W.2d 173, 177 (Mo. banc 1979):

[A] different question is presented where, as here, there has been a divorce between the time of the occurrence for which the defendant is on trial and the time the spouse is called upon to testify. In such instance, there is no longer any marital relationship or family peace which might be protected by excluding the former spouse from appearing as a witness for the prosecution. Most of the statutes which have been enacted regarding the competency of a spouse to testify appear to refer to the status of the parties, vis-a-vis each other — husband, wife — as of the time of the trial. Hence, where the marriage is dissolved at the time of the trial, and they no longer occupy that status, no reason appears why one should not be allowed to testify against the other. There is no longer any marriage that could be affected.

Section 546.260 did not prohibit Brenda’s testimony at the second trial. Neither did the prohibition against double jeopardy bar her testimony. The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to enter in the first proceeding. If a conviction is reversed solely due to evidentiary insufficiency the double jeopardy clause requires a judgment of acquittal. If a conviction is reversed solely due to trial error, then retrial is constitutionally permissible. State v. Wood, 596 S.W.2d 394, 398 (Mo. banc 1980). Defendant’s first conviction was reversed solely due to trial court error in the first proceeding. It was not error to retry the defendant. Defendant contends the issue of wife’s right to testify was resolved against the state and the doctrine of collateral estoppel prevents that issue from being relitigated. The doctrine of collateral estoppel only applies in a criminal case when the issue determined in the prior ease is the same as the issue in the pending case. State v. Thomas, 625 S.W.2d 115, 125 (Mo.1981). The issue in the first trial was whether a wife could testify against her husband. The issue in the second trial was whether a divorced wife could testify against her husband. Collateral estoppel has no application because the issues were not the same.

Defendant also cites several civil cases for the proposition that the decision of an appellate court on all points presented in an appeal becomes the “law of the case” on those issues in subsequent proceedings. Barkley v. Mitchell, 411 S.W.2d 817, 826 (Mo.App.1967). We have no quarrel with this proposition. However, the “law of the case” will be only applied where the facts are substantially the same on the second appeal. Pritt v. Terminal R.R. Assn., 251 S.W.2d 622, 623 (Mo.1952). It consequently has no application here.

In defendant’s next point, he alleges the trial court erred in failing to submit MAI-CR2d 2.50 on defendant’s character to the jury. Defendant called four witnesses who testified that defendant had a good reputation within the community for “truthfulness, for honesty and for general good conduct.”

No instruction on character was requested. The Notes on Use provide that this instruction must be given whether requested or not, whenever necessary. See § 546.070 RSMo 1978. “Whenever necessary” means such an instruction is necessary only where there is substantial evidence of a defendant’s good reputation with respect to those traits of character which would ordinarily be involved in the commission of an offense such as that with which defendant is charged. State v. Quinn, 344 Mo. 1072, 130 S.W.2d 511, 515 (1939). State v. Jenkins, 622 S.W.2d 281, 284 (Mo.App.1981).

Defendant asserts that in a trial for murder any facet of his character is involved. However, the Supreme Court in State v. Hayes, 295 S.W. 791, 793 (Mo.1927) held that the only capacity in which a defendant’s reputation may be shown in defense of a charge of murder or assault and which will require an instruction on character is his reputation within the community as a peaceable and law-abiding citizen. This principle was reaffirmed in State v. Brown, 62 S.W.2d 426, 427 (Mo.1933).

Defendant’s reputation for truthfulness does not put his character in issue, only his credibility as a witness and does not require the giving of the character instruction. State v. Harlow, 327 Mo. 231, 37 S.W.2d 419, 421 (1931); State v. Underwood, 530 S.W.2d 261, 263 (Mo.App.1975). Evidence of defendant’s reputation for honesty does not require an instruction on character in a prosecution for assault or murder, State v. Hayes, 295 S.W. 791, 793 (Mo.1927); while it does in a prosecution for larceny, or robbery, State v. Wells, 586 S.W.2d 354, 359 (Mo.App.1979).

That leaves only the testimony that defendant had a reputation for “good conduct” as evidence to support giving the character instruction. Our research has disclosed that no Missouri murder or assault conviction has ever been reversed for failure to give a character instruction unless there was evidence of defendant’s reputation for the specific traits of character as a peaceable, quiet or law-abiding citizen. State v. Antwine, 506 S.W.2d 397 (Mo.1974); State v. Jackson, 373 S.W.2d 4 (Mo.1963); State v. Brown, 62 S.W.2d 426 (Mo.1933); State v. Lindsey, 7 S.W.2d 253 (Mo.1928); State v. Baird, 288 Mo. 62, 231 S.W. 625 (1921); State v. Swain, 68 Mo. 605 (1878).

In State v. Martin, 651 S.W.2d 645, 656 (Mo.App.1983), the court held that in a capital murder case, evidence that defendant had a reputation within the community as an “honorable man” did not require the giving of MAI-CR2d 2.50 because the character trait of being honorable was not a “trait of character which ordinarily would be involved in the commission of capital murder.” The court cited the definition of honorable as “deserving of hon- or.” In addition, we note “honorable” is a synonym for “decent, admirable, and upright.” Webster’s New Collegiate Dictionary defines “good” as of a favorable character or tendency. It also includes synonyms such as honorable, “adequate,” “satisfactory,” “right,” or “commendable.” There is an absence in the record of any further testimony elaborating or defining what any of the witnesses meant by “general good conduct.” We conclude that this paucity of testimony does not constitute substantial proof of a trait of character that would ordinarily require a submission of MAI-CR2d 2.50 when the defendant is charged with the commission of murder. We find that the court did not err in failing to give MAI-CR2d 2.50.

Defendant next complains about hearsay testimony of a police officer. The officer testified that when he arrived at the scene, he spoke with Larry Latham outside the apartment and was told there had been a shooting. The officer further stated he asked Latham who the individuals were and who had the guns. He then testified he went to the doorway and called the name of “Gregory Manning” up the stairwell. At that point, the defendant appeared. The state citing State v. Harris, 620 S.W.2d 349, 355 (Mo. banc 1981) asserts there was no hearsay. However, we need not resolve this issue. Even if the officer’s statements constituted hearsay, there was no prejudice. Defendant testified in his own defense. He admitted shooting the victim, possessing a weapon, being called by a police officer, going downstairs and surrendering. Admission of objectionable hearsay evidence will not constitute reversible error if defendant testifies to the same facts. State v. Williams, 522 S.W.2d 641 (Mo.App.1975); State v. Mills, 521 S.W.2d 495 (Mo.App.1975).

Finally, defendant complains that the trial court erred in sustaining objections of the prosecutor during his cross-examination of Brenda. We have examined the record and find that one of the objections was overruled and one was sustained on the basis of the form of the question. In the remaining instances, the information was elicited from the witness at other points during cross-examination. We find no merit to defendant’s point. State v. Hacker, 291 S.W.2d 155, 160-61 (Mo.1956); State v. Foley, 629 S.W.2d 401, 402-03 (Mo.App.1981).

Affirmed.

GAERTNER and KAROHL, JJ., concur.

      . Defendant was also separately convicted of the second degree assault on his wife which conviction was affirmed by this court in State v. Manning, 664 S.W.2d 605 (Mo.App.1984).

      . Defendant did not invoke the confidential communication portion of the privilege which is not dependent on the marital status of the parties at the time of trial. State v. Euell, 583 S.W.2d 173 (Mo. banc 1979).

      . MAI-CR2d 2.50 in part provides:
      Evidence has been introduced concerning the reputation of defendant as to those traits of character which ordinarily would be involved in the commission of an offense such as that charged in this case. This evidence was received because a jury may reason that a person of good character as to such traits would not be likely to commit the offense charged against the defendant. Therefore, you should consider such evidence along with all of the other evidence in the case in determining the guilt or innocence of the defendant.

      . In State v. Turner, 246 Mo. 598, 152 S.W. 313, 315 (1912), the Supreme Court found it unnecessary to determine whether a failure to instruct on character would be prejudicial error in a murder prosecution where there was evidence of defendant’s "good conduct."


author: GREENE, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Patrick M. CULLEN, Defendant-Appellant.
    No. 13571.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 9, 1984.
    Motion for Rehearing or to Transfer to Supreme Court Denied Nov. 26, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      John D. Ashcroft, Atty. Gen., Thomas Carter, II, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Paul T. Graham, Carson, Monaco, Coil, Riley & McMillin, P.C., Jefferson City, for defendant-appellant.
   GREENE, Judge.

Patrick M. Cullen was jury-convicted of three counts of the class A felony of kidnapping, § 558.011.1(1), one count of the class B felony of armed criminal action, § 571.015, and one count of attempted escape from confinement, § 558.011, and was thereafter sentenced by the trial court, as a prior offender, to two life sentences and a total of 46 years’ imprisonment on the five offenses in question.

The sufficiency of the evidence to sustain the jury verdicts is not challenged on appeal. It suffices to say that evidence in the record supporting the verdicts shows that on July 25, 1981, Cullen, an inmate of the Missouri State Penitentiary who had three prior felony convictions, and another inmate, William Lewis Herron, who had four prior felony convictions, including one for first degree murder, attempted to escape from the penitentiary. They had a cutting torch, which they planned to use to cut the bars at the various security doors along their escape route, and two loaded pistols. Billy Holt, an employee of the prison for many years, was later convicted for smuggling contraband into the prison.

While Cullen was cutting the bars on one of the doors, he was discovered by Officer Charles Turner, a prison guard. Turner was taken hostage and tied to a chair by Herron. Another officer, George Thompson, became alarmed when Turner did not return from his appointed rounds and started to call the Control Center to report Turner’s absence when he was also taken hostage by Herron. Cullen continued to use the cutting torch in the break-out attempt. Turner escaped temporarily, went to another room where he broke a window and blew his whistle to alert other guards of the escape attempt. Cullen recaptured Turner at pistol-point. When he brought Turner back to where Herron was guarding Thompson, Cullen said, “We ought to kill the son-of-a-bitch; he blowed the whistle on us.” Herron said, “No, let’s wait.” Richard Childs, a Zone Lieutenant, was taken hostage at pistol-point when he came to the area to make his daily check on the housing unit. The three guards were then held hostage by Herron and Turner in an office area.

By this time, the prison warden had been alerted and negotiations for the release of the hostages started over the telephone between Herron, the warden and the assistant warden. During this time, Cullen was guarding the three hostages and threatening to kill Turner with his pistol. Finally, after realizing that they were not going to be set free in return for the release of the hostages, Cullen and Herron released the guards and surrendered. The filing of the charges in question followed.

Cullen’s first point relied on in this appeal contends that the trial court erred in overruling his motion to dismiss for failure to grant him a speedy trial. Cullen urges that the undue delay between the time of his arrest and the date of trial was caused substantially by the state to his prejudice.

Facts pertinent to this issue are that Cullen remained in the penitentiary after he surrendered on July 25, 1981. He was serving “10 and 5” on a prior conviction. In addition, he had “a parole detainer for the feds and I owe them 9 and a half more years .... ” He knew “I’m never gonna make parole .... ” Cullen was indicted on November 1, 1981, in Cole County, the site of the incident in question, and arraigned December 1,1981. He entered pleas of not guilty and not guilty by reason of mental disease or defect excluding responsibility. A psychiatric examination was ordered, and a report of the results was filed with the trial court on September 14, 1982.

Venue of the case was moved to Randolph County where the trial court, on May 25, 1983, dismissed without prejudice all charges against Cullen arising out of the escape attempt for lack of a speedy trial. In connection with the dismissal, the trial court made the following findings and conclusions:

In ordering dismissal without prejudice, the Court has considered the seriousness of the offenses charged, namely, the kidnapping and taking of prison guards as hostages, and the use of weapons in connection therewith. The Court finds from the unchallenged statements of the State that Defendant is presently serving a long period of incarceration, and will presumably be available for trial, and difficulty in trial preparation will be no greater for Defendant in the future than it is at present time. The Court further finds that the State’s ability to try the Defendant is similarly not impaired, owing to the availability of witnesses. The Court believes that the order of dismissal is compatible with twin public policies, one being in the speedy trial law, that, except for excluded periods of time, the Defendant shall be tried within 180 days; and that its order of dismissal without prejudice is compatible with the other public policy that those who are charged with serious crimes should be brought to trial.

The state immediately filed a new complaint against Cullen followed by a five-count information charging the offenses for which he was convicted. The case was transferred to Phelps County on change of venue. Prior to trial, which started on September 14, 1983, Cullen again filed a motion to dismiss for violation of the Speedy Trial Act, which motion was overruled by the trial court.

Boiled down, Cullen’s argument on this point is that the length of the delay in bringing his case to trial prejudiced his ability to present his defense and thus violated his constitutional and statutory right to a speedy trial.

In criminal prosecutions, the accused has a constitutional right to a speedy and public trial. Factors to be considered in determining whether the accused was denied that right are 1) length of the delay, 2) reasons for the delay, 3) the accused’s assertion of his right, and 4) prejudice to the accused from the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117 (1972).

Each case in which speedy trial violations are claimed must be determined on its own facts. State v. Black, 587 S.W.2d 865, 869 (Mo.App.1979). The delay in this case of 567 days from the time Cullen was first charged until he was finally tried was not so inordinately lengthy as to automatically weigh heavily against the state. See Barker v. Wingo, supra, (five-year delay— no denial of speedy trial); United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627, 630 (1966) (19-month delay — no denial of speedy trial); United States v. Roemer, 514 F.2d 1377, 1382 (2d Cir.1975) (56-month delay — no denial of speedy trial); United States v. Skillman, 442 F.2d 542, 557 (8th Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971) (20-month delay — no denial of a speedy trial). Morris v. Wyrick, 516 F.2d 1387, 1390 (8th Cir.1975).

It is difficult to determine the reasons for all of the delay due to an incomplete record. Be that as it may, the docket sheets for this case, which are part of the legal file, show numerous motions for disqualification of judges, changes of venue, discovery, psychiatric examinations, continuances, etc., all filed by Cullen. Processing and deciding these motions undoubtedly contributed substantially to the delay in bringing the case to trial. Such delays are not weighed against the State. State v. Dean, 637 S.W.2d 409, 411 (Mo.App.1982).

The third factor to be considered is the timing of Cullen’s first complaint of denial of his right to a speedy trial. The record indicates it was on May 25, 1983, which was 22 months after the escape attempt. Cullen’s failure to timely assert his right to a speedy trial weighs heavily against him.

Finally, we fail to see where Cullen suffered any prejudice by reason of trial delay. Although Cullen claims he was deprived of the testimony of Charles Turner, one of the hostages who had left his employment as a prison guard and could not be located at time of trial, Cullen has not told us in anything filed with this court what Turner would have testified to that would have helped him, and we cannot remotely envision how Turner’s testimony would aid the defendant. Cullen does not claim, and the record does not show, that he suffered any oppressive pretrial incarceration, or anxiety and concern over incarceration. He was already a long term inmate in the penitentiary, and, in his words, owed the feds nine and a half years. This being so, he was not, in reality, imprisoned because of this case, but was imprisoned on other convictions. Further, there is no showing that the state procured the absence of Turner, or of Scott Thomas, who was unavailable between June 20,1983 and August 3, 1983. Thomas was present at trial and did testify as a defense witness. A thorough examination of the record furnished us does not show any prejudicial pretrial delay. The point has no merit and is denied.

Defendant’s remaining point alleges prejudicial closing argument by the prosecuting attorney. The complained of argument was as follows:

[MR. CALLAHAN:] The — one thing I want to start off with you right away, one legal principle, not only in Missouri law but, as I understand it, in every law in the state — in this country, is that when Mr. Cullen and Mr. Herron decided back in July to make this escape attempt they acted together as a unit. And the law in Missouri is that whatever Mr. Herron does to advance the escape—
MR. GRAHAM: Objection, Your Hon- or. My objection is that he’s now directing the jury on law, in addition to what you have read.
THE COURT: Sustained.
MR. CALLAHAN: I may argue the law as long as I don’t misstate it.
And Mr. Cullen, when he’s cutting those bars and producing the crime of escape, he is doing that in conjunction with what he agreed to do with Mr. Her-ron.
MR. GRAHAM: Your Honor, I’m going to have to object to that line of argument for the same basis as before.
THE COURT: Objection will be overruled.
MR. CALLAHAN: While Mr. Cullen is out there cutting those bars, he’s doing what him [sic] and Herron had agreed they were going to do.
MR. GRAHAM: Objection.
THE COURT: Overruled.
MR. CALLAHAN: And, by the same token, as Mr. Herron is back in that office, at first keeping the guards busy, or whatever, while Cullen can go ahead and cut, Herron is doing, also, what they agreed to do in their total plan which was to try to escape.
MR. GRAHAM: Objection.
THE COURT: Overruled.
[MR. CALLAHAN:] Everything Her-ron did, Cullen agreed or affirmed because that’s part of the inmate code. What Herron did Cullen affirmed and he thereby did.
MR. GRAHAM: Objection, Your Hon- or, to the same reason as before.
THE COURT: Overruled.
MR. CALLAHAN: And it worked both ways to the extent that Herron was affirming and wanting and agreeing with Cullen should be doing stuff. That’s Herron, also.

Cullen contends that by this argument the prosecutor was urging the jury to convict him as an aider and abettor; that MAI-CR2d 2.12 instruction was not given, and that, therefore, the state was arguing for a conviction based on a lower burden of proof than was required under the instructions read to the jury by the trial court.

While the complained of argument falls short of a purist presentation, we can understand it, but fail to see how it was prejudicial to Cullen. The prosecutor’s comments, except for his reference to the “law in Missouri is," the objection to which was promptly sustained, were not arguments as to law regarding aiders and abettors, but were merely references to facts in evidence. These facts referred to Cullen’s overall knowledge of the escape plan, and his commitment to carry it out.

In regard to the kidnapping charges, the record conclusively shows that Cullen’s trial strategy was to blame the capture of the hostages on Herron and to absolve himself of blame. His analysis, in face of the facts, does not hold water. The evidence is undisputed that when Turner temporarily escaped, Cullen tracked him down and caused him to surrender again at gun point. The evidence is also undisputed that Cullen and Herron both participated in holding the three guards hostage for several hours after the escape plot was discovered. Since both Cullen and Herron were armed with loaded pistols from the very start of the break-out attempt, it is only logical to infer that both of them would, if necessary, take hostages as part of their escape plan. Cullen was guilty as a principal, not as an accessory. The prosecutor’s argument in support of that thesis was not prejudicial. We find no error in the point complained of.

Judgment affirmed.

TITUS, P.J., and FLANIGAN, J., concur.

      . Unless otherwise indicated, all references to statutes are to RSMo 1978, V.A.M.S.


author: HOGAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Richard D. WAKEFIELD, Defendant-Appellant.
    No. 13247.
    Missouri Court of Appeals, Southern District, Division Three.
    Nov. 20, 1984.
    Motion for Rehearing or Transfer Denied Dec. 7, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      Charles M. Shaw, Shaw, Howlett & Schwartz, Clayton, for defendant-appellant.
    John Ashcroft, Atty. Gen., Frank A. Rubin, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   HOGAN, Judge.

This case involves trafficking in stolen motor vehicles and parts thereof, a form of criminal activity sometimes called the operation of a “chop shop.” By four-count information filed in the Circuit Court of Reynolds County, defendant Richard D. Wakefield was charged with: I) receiving a stolen 1978 Chevrolet Monza in violation of § 570.080, RSMo 1978; II) removing or defacing identifying numbers on the Monza in violation of § 301.400, now repealed; III) receiving a stolen 1977 Chevrolet pickup truck in violation of § 570.080, and IV) forging a vehicle identification number on the Chevrolet pickup in violation of § 570.-090.1(3). As permitted by Rule 24.07, all four counts were tried jointly. The defendant was acquitted on Counts I and III but found guilty of violating former § 301.400 and forgery, as charged in Counts II and IV of the information. Defendant’s punishment for altering or defacing a vehicle identification number in violation of § 301.-400 was assessed at a fine of $100; his punishment for forgery was assessed at a fine of $5,000.

Defendant appeals, maintaining: 1) that there is no substantial evidence to support either of the two judgments of conviction; 2) that the trial court erred in permitting the State to list the names of three previously undisclosed material witnesses, as required by Rule 23.01(f), shortly before the trial commenced; 3) that the trial court erroneously permitted the State to amend the information on the day of trial and erroneously denied a continuance requested on that account; 4) that the State’s closing argument constituted an improper and prejudicial comment on the defendant’s failure to testify, and 5) that the trial court erred in giving and reading a preliminary instruction to the jury.

The dispositive issues on appeal are whether or not the evidence supports the judgments of conviction. Defendant’s counsel has contented himself with the argument that the evidence of defendant’s guilt is wholly circumstantial, and as such, does not meet the standard required in such cases, specifically, that “ ‘the facts and circumstances ... be consistent with each other and with the hypothesis of defendant’s guilt, and ... be inconsistent with [the defendant’s] innocence and exclude every reasonable hypothesis of his innocence.’ ” State v. Franco, 544 S.W.2d 533, 534 (Mo. banc 1976), cert. denied 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977). The State has taken the argument as presented, but we do not propose to discuss the difference between “circumstantial” and “direct” evidence at length. See State v. Famber, 358 Mo. 288, 293, 214 S.W.2d 40, 43[3] (1948). It is sufficient in this respect to note that even when the evidence of defendant’s guilt is wholly circumstantial, evidence tending to support the verdict must be taken as true, contrary evidence must be disregarded and every reasonable inference tending to support the verdict must be indulged. State v. Cobb, 444 S.W.2d 408, 412[3] (Mo. banc 1969). Moreover, and contrary to the implied premise of defendant’s argument, the weight of the evidence is not a matter for review by this court. State v. Brown, 660 S.W.2d 694, 698[9] (Mo. banc 1983).

Unfortunately, an extended recitation of the background facts is necessary to an understanding of the appeal. These prosecutions were the result of an investigation of a series of automobile thefts and traffic in stolen vehicles and parts thereof in Dent, Reynolds and Carter counties by the Missouri State Highway Patrol (SHP or the Patrol). This investigation led the Patrol to the defendant as a suspect. Defendant Wakefield owned and operated an automobile salvage yard and repair shop north of Ellington on Highway 21 in Reynolds County.

The State laid a predicate for the two convictions with which we are concerned by calling Sergeant John Cummings, a member of the Patrol who is a vehicle identification expert. As material here, Sergeant Cummings explained the identification of particular vehicles by locating vehicle identification numbers and other “identifiers” placed on vehicles by a manufacturer. Among other things, Sergeant Cummings testified that every vehicle, particularly more recent models, has a complete VIN which is mounted on the dashboard. This VIN is visible through the front window of the vehicle. The VIN is stamped onto a thin malleable metal strip which is about 4½ inches long and ¾ inch wide. This strip, with the VIN stamped on it, is affixed to the dashboard — or in some other place — by two rosette head rivets. “Rosette head” rivets have slight indentations around the head of the rivet, giving it a roseate appearance.

Sergeant Cummings also testified that the number of letters and digits in a VIN vary in vehicles manufactured before 1981. Since the 1981 model production year, all automobile manufacturers have used a 17-character VIN. Before 1981, GM used 13 letters and digits. Ford’s VIN was variable, depending upon the function of the vehicle. The Chrysler Corporation used a 13-eharacter VIN.

Each letter or digit in the VIN serves a particular function. For example, one letter designates the assembly plant, one or two digits indicate the production year, and the last six numbers are called sequential production numbers. The sequential production number is thus a derivative of the complete VIN and is unique. Other identification numbers are also stamped onto the chassis or motor of the automobile or truck. There is a “confidential” identification number, located somewhere on the automobile so it is not visible; there are also identifying numbers on the engine and on the transmission. The location of these numbers depends on the make and model of the vehicle, but the information needed to locate those and other “identifiers” is provided to peace officers and other theft investigators by the National Automobile Theft Bureau.

We consider first the conviction on Count II, which charged the defendant with altering or defacing the manufacturer’s identification number on a 1978 Chevrolet Monza automobile. The State’s theory on this count was that the defendant had taken the VIN from the body of a 1980 Chevrolet Monza automobile and had affixed it to a 1978 model which defendant owned and sold to one Billy White.

The State had the following evidence bearing on this count: Joseph Bowen, a resident of Bunker, Missouri, owned a 1978 Monza automobile, which “disappeared” from a parking lot in Salem on October 25, 1980. Mr. Bowen’s automobile was insured. He surrendered the title to his insurance carrier. The title summary from the files of the Missouri Department of Revenue, received in evidence as State’s Exhibit 25, make it clear that the defendant never had any title to this automobile. The VIN on this vehicle ended in the six digits 237144.

Billy A. White purchased a 1980 Monza automobile, or what purported to be such, from the defendant “about the middle of January” 1981. The Patrol impounded this vehicle after inspection because, although the “public” VIN indicated Mr. White’s vehicle was a 1980 model, the “confidential” identification number indicated the automobile was a 1978 model Monza. This “confidential” VIN was traced to Mr. Bowen’s vehicle by the Patrol. Examining the motor number and the transmission number revealed that they were derivatives of the public VIN of a 1980 model Monza.

The State had further evidence that when SHP searched the defendant’s salvage yard, the body of a 1980 model Chevrolet Monza was found. The title record of this vehicle, before us as State’s Exhibit 26, reveals that the defendant had a title to this vehicle. When the defendant’s premises were searched, the confidential VIN on this body corresponded to the public VIN found on the 1978 Monza, as shown by Exhibit 20A, and State’s Exhibit 18, which is the public VIN strip taken from the red 1978 automobile.

To sum up, there is evidence in the record which permits the inference that at some time the defendant, or one of his employees at his direction, mounted the body of the red 1978 Monza onto the frame and transmission of a 1980 model which the defendant had acquired as salvage. The public VIN strip was removed from the salvage automobile and was affixed by homemade rosette rivets to the body of the 1978 automobile; thereafter the reconstituted automobile was sold as a 1980 model vehicle. Once again, the question is whether this evidence, taken as true, warranted a conviction under the provisions of former § 301.400.

Section 301.400, before it was repealed and in substance reenacted as a Code offense in 1981, read in material part as follows:

“Any person who removes, covers, alters or defaces, or causes to be destroyed, removed, covered, altered or defaced, the manufacturer’s number, the motor number or other distinguishing number on any motor vehicle ... the property of another, for any reason, shall be deemed guilty of a felony and on conviction thereof shall be punished by imprisonment in the state penitentiary for a term not exceeding five years or by confinement in the county jail for a term not exceeding one year, or by a fine not exceeding one hundred dollars or by both such fine and imprisonment.”

It will readily be seen that this section created what was formerly called a “mixed” or “graded” felony. See, e.g., State v. Thomas, 343 S.W.2d 56, 57[2] (Mo. 1961); State v. Underwood, 254 Mo. 469, 162 S.W. 184 (1914). The statute, almost in its present form, was originally enacted as § 25 of the Motor Vehicle Act of 1921, Laws of Mo. 1921, First Extra Session, p. 76. The statute was intended to denounce and deter traffic in stolen motor vehicles and parts thereof, inasmuch as it is a matter of common knowledge that, in order to prevent and hinder the identification, tracing, and receiving of a stolen motor vehicle, the manufacturer’s serial number or other distinguishing or identifying number, originally placed on the vehicle by the manufacturer, frequently is destroyed, removed, altered or defaced by the thief or thieves. State v. Friedman, 412 S.W.2d 171, 174-75[2-4] (Mo.1967); Star Square Auto Supply Co. v. Gerk, 325 Mo. 968, 979-81, 30 S.W.2d 447, 452-53 (1930).

The crime denounced has two elements: 1) removing, covering, altering or defacing the manufacturer’s identification number or other distinguishing number on any motor vehicle, or causing the number to be destroyed; 2) the motor vehicle must be the “property of another.”

Proof of the second element is found in the records of the Department of Revenue. The Director of that department is required by statute, § 301.350 among others, to keep records indicating the registry of vehicles “under a distinctive number assigned to such motor vehicle_” Section 301.350.1. Parts of those records— sufficient to indicate the ownership of the two Chevrolets involved — were received in evidence. We have no doubt that the vehicle registration records of the Department of Revenue were admissible to show ownership of the vehicles involved. See, generally, 30 Am.Jur.2d, Evidence § 991, p. 121 (1967). These records indicate that the defendant had no species of ownership in the 1978 Monza automobile, and it was unnecessary for the purposes of this prosecution to prove the absolute ownership of that vehicle. Cf. Dowdell v. State, 429 N.E.2d 1, 3[2] (Ind.App.1981).

The evidence is sufficient to support the judgment of conviction on Count II. We decline to repeat the tiresome prolixity of the record by attempting to reconstruct the inductive reasoning process by which the jury could have reached the result it did. Substantive due process requires this court to ascertain whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573-74 (1979). We find the evidence, whether characterized as partially direct and partially circumstantial, or otherwise, sufficient for that purpose. We are not required to scrutinize the reasoning process actually used by the fact finder. Id., 443 U.S. at 320, n. 13; 99 S.Ct. at 2789, n. 13, 61 L.Ed.2d at 573-74, n. 13.

The evidence adduced by the State in support of the allegations of Count IV— which charged the defendant with forgery — was a good deal more direct, but here a threshold observation is appropriate.

While neither party has briefed or even suggested the question, it is necessary to consider whether the language of § 570.-090 is broad enough to include the forgery of an automobile manufacturer’s VIN. On principle, there seems to be no reason why manufacturer’s identification numbers should not be the subject of forgery. Discussing the question, Professor Perkins wrote:

“Here, as is very common in the law, the word ‘writing’ is used in a broad sense. It is not limited to handwriting but includes also typewriting, printing, engraving and so forth. With this explanation it may be said that the subject of forgery is any writing which has apparent legal significance....”

Perkins, Criminal Law, p. 342.

Section 570.090.1(3) reads as follows:
“1. A person commits the crime of forgery if, with the purpose to defraud, he ...
(3) Makes or alters anything other than a writing, so that it purports to have a genuineness, antiquity, rarity, ownership or authorship which it does not possess; _” (Our emphasis.)

This Section did not come from the Model Penal Code; the Comment appended to the statute recites that it is essentially similar to former § 561.011(1), (2), (3) and (4), RSMo 1969.

The Model Penal Code, on the other hand, defines “writing” to include “printing or any other method of recording information, money, coins, tokens, stamps, seals, credit cards, badges, trade-marks, and other symbols of value, right, privilege, or identification.” Model Penal Code § 224.1(1). The enumeration is intentionally extensive, so as to avoid possible narrow construction by application of the principle of ejusdem generis. Part II, Model Penal Code, Vol. 2, pp. 286-87 (1980). However, the definition was specifically meant to include the alteration of manufacturer’s identification numbers. Id. at p. 307.

We conclude that § 570.090.1(3) is broad enough to cover vehicle identification numbers. The phrase “anything other than a writing” is as broadly inclusive as “printing or any other method of identification” and, again, it is common knowledge that changing or obliterating the identification numbers on a motor vehicle is a common expedient to conceal its ownership. Donaldson v. United States, 82 F.2d 680, 681[2] (7th Cir.1936).

The State’s submitted theory on Count IV of the information was that defendant altered the manufacturer’s identification number on a stolen 1977 Chevrolet pickup so as to make the body appear to be the property of another.

To support this theory, the State had first the evidence of James B. Erhardt, who was an electrician. Mr. Erhardt was shown by records of the Department of Revenue to be the owner of a 1977 GMC pickup, public VIN TKL 147S 511 200, subject to a lien held by the Reynolds County Savings Bank of Ellington: Inferably, this pickup was tan. The pickup was damaged, and Mr. Erhardt took the vehicle to the defendant for repair. When defendant returned the pickup after repairing it, the vehicle was black.

Mr. Erhardt’s vehicle was impounded by the Patrol about April 28, 1981. While it was impounded, Sergeant Cummings inspected it. Sergeant Cummings’ inspection disclosed that the VIN plate, which on this particular vehicle is attached to the left door post, was attached by simulated, or homemade, rosette rivets. Cummings also located a “confidential” identification number on the vehicle and an engine number.

The “confidential” VIN on this pickup is located on the top of the right frame rail. There are actually two such numbers, one directly under the cab, the other about 30 inches behind it. Inspection of these numbers disclosed they were not authentic. Photographs of one of these identification numbers are before us as Exhibits 22A and 22B. As shown by Exhibit 22B, the confidential number is TKL 511 200. Although this number is a “derivative” of the complete VIN, it is not proper as a confidential VIN, for the second letter in the confidential VIN should be a year designator. The year designator should have been “7” rather than “K.” Comparison of the full VIN with the number found on the frame reveals that the year designator “S” appears immediately before the six-digit production serial number 511 200. The significance of the letter “K” is that years of production were not designated by letters until manufacturing year 1980. Therefore, if the confidential VIN had been authentic, the vehicle would have been a 1989 model.

The size and spacing of the letters and numbers of the confidential VIN indicated the number had not been stamped on the frame of the pickup at an assembly plant; a factory installed number would have differently sized and spaced letters and digits. Sergeant Cummings also found a fictitious engine number and the transmission number had been completely ground away. At the location of the confidential VIN’s and the engine number, Sergeant Cummings found signs of heating and buffing or grinding, indicating that the original numbers had been obliterated before the fictitious numbers were stamped on the vehicle.

Sergeant Cummings also examined the “logo” on the Erhardt vehicle. The “logo” on a pickup is a highly polished casting attached to the left front fender near the top. This logo indicates the model of the pickup. The logo affixed to the Erhardt vehicle read “Sierra Grande 15,” which is a model of GMC pickup. Cummings removed the logo and polished the paint underneath. A “ghost” logo appeared, which read “Silver Auto 10.” This logo designates a particular model Chevrolet truck. Sergeant Cummings also found a business card printed for Toyota Town, 8045 East R. L. Barton Freeway, Dallas, Texas. There were directions written on the reverse side of the card. The card was found underneath the seat in the cab of the pickup.

On May 5, 1981, defendant’s business premises were searched. Sergeant Cummings took part in the search, and he located a “service parts identification sticker” for a 1977 Chevrolet pickup truck. This “sticker” is usually placed inside the glove compartment of a new motor vehicle by the manufacturer so replacement parts may be properly identified. The sticker also identifies the vehicle by its complete VIN. Upon finding this item, Sergeant Cummings contacted the headquarters of Troop “G” to see if the vehicle identified by the sticker had been reported stolen. Cummings was put in touch with Steven Holly, a resident of St. Louis County. Other items found during the search and a telephone conversation with Mr. Holly led SHP to believe Mr. Erhardt’s vehicle—or part of it—was really Mr. Holly’s pickup.

Mr. Holly was called as a witness for the State. He was shown a picture of the Erhardt pickup, and was asked to recount the points of similarity, if any, between the Erhardt pickup and his vehicle, which had been stolen. When he saw the Erhardt pickup, Holly was able to note many similarities between the two. Holly recalled, and testified: 1) that his vehicle had cigarette burns “in the middle of the truck on the floor,” as did the suspect vehicle; 2) there were fog lamps on the Erhardt pickup, and “the wiring and everything was put on by myself and it was the same wiring that I’d done”; 3) the switch for the fog lamps “was a regular toggle switch mounted under the dash that I’d put in myself.”; 4) there was a “tear in the seat” identical to a defect in Mr. Holly’s seat covering, and 5) Holly’s speedometer had been broken and the speedometer on the Erhardt pickup “was still broken ... at the approximate same miles.” Other points of similarity between the pickup which had belonged to Mr. Holly and the Erhardt vehicle could be noted, but, as Mr. Holly testified “[basically everything was the same.” Mr. Holly also identified the Toyota Town business card as being a card he had acquired in Dallas. Some of Mr. Holly’s personal effects were found when defendant’s premises were searched, and he identified these items as being his.

Holly testified he never had any of the manufacturer’s identification numbers changed, and that the identifying logo on his pickup truck had read “Silver Auto 10.” He had obtained possession of the truck by filing suit in replevin. The truck was awarded to him. Such was the nature and tenor of the State’s evidence bearing on the forgery count, Count IV of the information.

The elements of that order of forgery denounced by § 570.090.1(3) are these: 1) That defendant, with a purpose to defraud, 2) make or alter 3) anything other than a writing, 4) so that it purports to have a genuineness, antiquity, rarity, ownership or authorship which it does not possess. The New Missouri Criminal Code: A Manual for Court Related Personnel § 15.7 (1978). An intent to defraud may be inferred from the act of changing or obliterating the identification numbers on a motor vehicle. As we have already observed, it is held to be common knowledge that the manufacturer’s numbers on an automobile are a most ready means for its identification, and changing or obliterating the numbers is a common expedient for concealing its ownership. Donaldson v. United States, 82 F.2d at 681. Otherwise put, the intent to defraud which is a necessary element of this case is not a specific intent to defraud some particular person; the State was only required to demonstrate a general intent to defraud and the act of forgery itself, if shown, imported such an intent. State v. Arenz, 340 Mo. 160, 164, 100 S.W.2d 264, 266 (1936); State v. Eaton, 166 Mo. 575, 580-81, 66 S.W. 539, 540 (1902). If the defendant’s criminal agency could be inferred, so could his intent to defraud.

Could the defendant’s criminal agency be inferred here? In our view, it could. Erhardt testified that he had his pickup repaired several times by the defendant, and on one occasion the repair was extensive. When the vehicle was inspected by the Patrol, every manufacturer’s identification number on the vehicle had been altered. Such alterations required knowledge of the significance and location of the identification numbers and considerable skill as a mechanic. Inferably, the defendant had such knowledge and skill—he had operated a salvage yard and repair shop for many years. Mr. Holly identified the vehicle, or part of it, as being his. He testified without objection that the vehicle had been stolen. Holly’s keys fit the truck claimed by Erhardt, and some of Mr. Holly’s personal effects were found in a partially buried plastic bag on defendant’s premises. The evidence is sufficient to establish the defendant’s criminal agency.

The only other evidentiary question is whether the vehicle identification numbers were altered so as to give Erhardt’s pickup a purported ownership it did not have. There was very direct evidence on this point. The public VIN is part of a Missouri Certificate of Title to a motor vehicle; that number — for Erhardt’s vehicle — was TKL 147S 511 200. This is shown by State’s Exhibit 29, received in evidence at the trial. Removing the public VIN plate which had originally been riveted to the door post of the GMC pickup and affixing it to the door post of another similar vehicle was undoubtedly calculated to give Erhardt’s pickup an appearance of ownership it did not have. The evidence was sufficient to support the judgment of conviction on Count IV of the information.

This disposes of defendant’s claim that the evidence is not sufficient to support the judgments of conviction. As noted, several other assignments of error have been briefed. The first of these assignments is that the trial court erred to defendant’s prejudice in permitting the State to present the names of three witnesses, previously undisclosed, on the day of trial and in permitting the State to amend Count II of the information so as to aver that the crime therein charged was committed during “a period from September 24, 1980 to January 15, 1981.” The defendant prayed a continuance because of the late endorsement of witnesses and the amendment of the information upon the day of trial. The continuance was denied. Defendant now argues that late disclosure of the names of three witnesses and amendment of the information deprived him of a “constitutionally fair trial.”

The point concerning late disclosure of the names of witnesses need not detain us long. The three witnesses— Rouse, Neumann and Phillips — did not testify to any facts tending to prove defendant’s guilt or innocence of the crimes charged in Counts II and IV of the information. Their testimony was relevant only to the charges of receiving stolen property, alleged in Counts I and III of the four-count information. State v. Ford, 639 S.W.2d 573, 575 (Mo.1982), is wholly inap-posite here. In Ford, our Supreme Court held that although error in a criminal case is presumed to be prejudicial, the presumption of error may be overcome by the facts and circumstances of the particular case. Id. at 575. Certainly, if Robert Ford had been acquitted, there would have been no error. There is another rule of law which controls the disposition of this point, specifically, that only prejudicial error requires reversal of a judgment of conviction. State v. Kurtz, 564 S.W.2d 856, 861 (Mo. banc 1978). Late disclosure of the names of witnesses Rouse, Neumann and Phillips, assuming it was error, did not prejudice the defendant.

Another aspect of this same point is that the court erred in permitting the State to amend Count II of the information so as to charge that the offense was committed “during the period from September 24, 1980 to January 15, 1981.” The information originally charged the crime was committed “on or about January 15, 1981.”

Amendments to criminal infor-mations are governed and controlled by Rule 23.08, which reads in pertinent part as follows:

“Any information may be amended ... at any time before verdict or finding if no additional or different offense is charged and if a defendant’s substantial rights are not thereby prejudiced. No such amendment or substitution shall cause delay of a trial unless the court finds that a defendant needs further time to prepare his defense by reason of such amendment or substitution.” (Our emphasis.)

This rule superseded § 545.300, State v. King, 380 S.W.2d 370, 375 (Mo.1964), cert. denied 379 U.S. 979, 85 S.Ct. 681, 13 L.Ed.2d 569 (1965), but in effect it states the case law as it stood before the rule was adopted. There is no pretense that the amendment of Count II charged any new or different offense. We have the opinion that the amendment made here was in the nature of a conforming amendment. The State’s hypothesis was that the specific acts constituted parts of a continuing series of interrelated transactions, and that at some time during the 4-month period between September 24, 1980, and January 15, 1981, defendant committed the act charged in Count II. When the date of the commission of an offense is not essential to the crime charged, amendment of the date on which the crime was committed lies within the trial court’s discretion, in the absence of an affirmative showing of prejudice. State v, Snyder, 502 S.W.2d 339, 342 (Mo.1973); State v. Montgomery, 590 S.W.2d 697, 698[2] (Mo.App.1979); State v. Brookshire, 329 S.W.2d 252, 255[1] (Mo.App.1959). Upon trial, counsel for defendant claimed surprise and asked for a continuance. We are unable to perceive any reason for continuing the trial of all four counts of the information because one count thereof had been amended. Counsel did not ask for a severance and continuance of Count II; the claim of surprise is not factually supported and in fact defendant presented no evidence pertaining to any of the dates averred. The assignment of error is without merit. State v. Montgomery, 590 S.W.2d at 698.

Defendant also maintains that in closing argument, the State commented prejudicially upon the defendant’s failure to testify. The prosecutor’s remark was:

“Also remember before I sit down and let Mr. Shaw argue, there is no contradiction to any of the evidence I’ve talked to you about—
MR. SHAW: —Objection, your Honor.
THE COURT: The jury will—
MR. SHAW: —No, I object to that statement.
THE COURT: For what reason?”

Then, out of the hearing of the jury:

“MR. SHAW: The defendant will object to the statement there is no contradiction of the evidence as it’s an improper comment upon the defendant’s failure to produce evidence or to testify.
THE COURT: Overruled.”

The principle which defendant seeks to invoke applies only when the State refers directly and certainly to the defendant’s failure to testify. Merely stating that evidence is uncontradicted or that a defendant has failed to offer evidence is not such a certain and direct reference. State v. Robinson, 641 S.W.2d 423, 426 (Mo. banc 1982); State v. Inscore, 592 S.W.2d 809, 812-13 (Mo. banc 1980); State v. Hutchinson, 458 S.W.2d 553, 555-56 (Mo. banc 1970). Further MAI-CR.2d 3.76 was read to the jury. That instruction reads:

“Under the law, a defendant has the right not to testify. No presumption of guilt may be raised and no inference of any kind may be drawn from the fact that the defendant did not testify.”

This assignment of error has no merit.

The defendant’s final assignment of error is likewise devoid of substance. Before the trial began, the court stated in the presence of the jury, according to defendant’s counsel, that:

“The plaintiff’s case is normally put in first. The defendant then puts in his defense, and after that a rebuttal is allowed to the plaintiff.”

This admonition to the jury smacks of inadvertence on the part of the trial court. However, the record does show affirmatively that MAI-CR.2d 1.06, MAI-CR.2d 2.01 and MAI-CR.2d 2.02 were faithfully read to the jury. The jury was properly advised and cannot have been misled. There is no merit in this assignment.

We find no error in any respect briefed and submitted to this court. Accordingly, the judgments of conviction are affirmed.

GREENE, C.J., CROW, P.J., MAUS and PREWITT, JJ.

      . References to statutes and rules are to RSMo 1978 and Missouri Rules of Court (13th ed. 1982), except where otherwise specifically noted.