author: BLACKMAR, Judge. DONNELLY, Judge,

text:
    STATE of Missouri, Plaintiff-Respondent, v. Bobbie Gene STUCKEY, Defendant-Appellant.
    No. 65999.
    Supreme Court of Missouri, En Banc.
    Nov. 20, 1984.

      John E. Cash, Kansas City, for defendant-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for plaintiff-respondent.
   BLACKMAR, Judge.

A jury found the defendant guilty of capital murder and fixed the sentence at life imprisonment without probation or parole for 50 years. The Court of Appeals, Western District, reversed because of the failure. to give an instruction about the defendant’s wife’s right to use force in his defense, and found it unnecessary to consider other allegations of error advanced in support of a claim for new trial. We granted the state’s motion to transfer and, taking the case as on initial appeal, now affirm the judgment of the circuit court.

The defendant does not challenge the sufficiency of the evidence, even though the prosecutor’s case is essentially circumstantial. Because the sufficiency is not questioned we do not need a lengthy statement of facts supporting the verdict. Under the state’s theory the defendant met Larry Wilson, the victim, at a sale barn in Mexico where he was trying to market a trailerload of pigs. Defendant suggested that Wilson could get a higher price elsewhere and drove with him to a farm in Monroe County. The putative buyer was not home. They then headed for Edina but stopped along the way. The defendant hit the victim a blow, possibly with a break-over bar, rendering him unconscious, and then placed him, while still alive, in the bed of the defendant’s pickup truck, while defendant’s wife drove the victim’s truck with the hog trailer attached. The defendant stopped along a gravel road, shot the victim in the head, and left his body in a wooded spot. The couple headed for Cen-terville, Iowa, where they sold the pigs but did not receive the money because they could not produce evidence of ownership. The defendant at one point after his arrest, said to the sheriff holding him in custody, “I killed him but I didn’t mean to.”

I.

The ease was submitted to the jury under MAI-CR 15.02, reading as follows:

If you find and believe from the evidence beyond a reasonable doubt;
First, that on or about May 29,1981, in the County of Shelby, State of Missouri, the defendant caused the death of Larry L. Wilson by shooting him, and
Second, that the defendant intended to take the life of Larry L. Wilson, and
Third, that the defendant knew that he was practically certain to cause the death of Larry L. Wilson, and
Fourth, that the defendant considered taking the life of Larry L. Wilson and reflected upon this matter coolly and fully before doing so, then you will find the defendant guilty of capital murder.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

The court also gave MAI-CR 2.10, reading as follows:

1. A person is guilty of an offense if it was committed by conduct for which he is criminally responsible, whether that conduct was his own or that of another person or both his own conduct and that of another.
2. A person is criminally responsible for the conduct of another in committing a particular offense when, either before or during the commission of an offense, with the purpose of promoting the commission of that offense he aids such other person in planning and committing that offense.
A person is also criminally responsible for any other offense which he knew that such other person was practically certain to commit or attempt to promote escape or to prevent detection for the particular offense initially contemplated.
3.The presence of a person at or near the scene of an offense at the time it was committed is alone not sufficient to make him responsible therefore, although his presence may be considered together with all of the evidence in determining his guilt or innocence.

The defendant took the stand in his own defense and testified that he knew the victim casually and saw him at the livestock market in Mexico, Missouri on the morning of May 29,1981. Observing that the victim had a load of hogs to sell, defendant told him of a buyer who would pay a higher price. The victim agreed to accompany the defendant to the potential buyer’s home.

The defendant and his wife, followed by the deceased, drove to Monroe County to see the buyer. Nobody was home. The trio then headed for Edina, Missouri, upon defendant’s suggestion that a good price could be obtained there. This trip was abandoned due to tire problems on the victim’s livestock trailer. The lug nuts attaching the tire to the rim kept coming loose. We now make use of the Court of Appeals’ summary of the defendant’s testimony.

Around 2:30 p.m. the trio stopped at the entrance to “Grange Park” to once again tighten the “lug nuts”. The victim parked his pickup truck and trailer partly on and partly off of the traveled portion of the road on the east side, and defendant parked his pickup truck in the entrance to “Grange Park”. Tempers had been building up and the victim had become “aggravated” because the “hogs were becoming hot” and he was “afraid they were going to overheat”. He was also put out because it appeared he wasn’t going to get his hogs sold that day and was going to have to hold them over the weekend. After the victim tightened the “lug nuts” with a “break-over” bar, he stood up and turned toward defendant. The victim, as he turned towards defendant, drew the “breakover” bar “in a backward motion.” The “breakover” bar was in the victim’s right hand. Defendant, thinking the victim was going to hit him, grabbed the victim’s right hand. A struggle then occurred between the two with each trying to throw “punches” at the other. During the struggle they fell to the ground, with the victim landing on top of the defendant. While the victim was on top of him, defendant heard his wife “hollering”. The next thing defendant heard was a “shot”. Immediately after the shot the victim “lunged” over into a ditch. Defendant then looked up and saw his wife “standing there”. Defendant asked her why she shot the victim and she replied “I thought he was going to hurt you.” His wife shot the victim with a .22 caliber rifle which had been in a gun rack in their pickup truck. The victim was 6 feet, 2 inches tall and weighed over 200 pounds. Defendant was 5 feet, 8 inches tall and weighed 150-155 pounds.
Defendant went over to where the victim was lying and felt his pulse. He thought he felt a slight pulse and told his wife to go get an ambulance. About that time defendant heard a car coming and stared toward the road. The approaching car, occupied by a man and woman, stopped and defendant told them “there was a man hurt real bad and they needed an ambulance.” The couple told defendant they would call an ambulance and left.
After the couple left defendant went back to where the victim was lying and at that time determined that he was dead. Defendant told his wife she had killed the victim. His wife “went all to pieces” and said they would “throw her in jail” and he “had to do something”. Defendant tried to calm his wife down and told her he “would think of something”. Defendant then dragged the victim over to his (defendant’s) pickup truck and put the body in the truck bed. Defendant then told his wife to get in their pickup truck and “let’s get out of here”. Defendant’s wife refused to get in the pickup as long as the victim’s body was there. He told her to take the victim’s pickup truck and trailer and head towards Highway 15 and he would catch up with her. Defendant’s wife left ahead of him, but he passed her on Route AA east of the “Ridge Bridge”. Defendant turned off of Route AA on a side road near the Ridge Bridge and dumped the victim’s body at the place where it was later found.

Defendant caught up with his wife and they took both trucks and the livestock trailer to Edina. He then had no intention of stealing the hogs, but his wife convinced him to sell them so the couple would have “getaway” money. While in Edina defendant washed his truck to clean the blood out. He and his wife then traveled to Center-ville, Iowa, where they sold the hogs but did not receive payment because they lacked proper identification.

They left Centerville with both trucks and the trailer. The trailer was abandoned south of the Iowa line. The victim’s pickup truck was set afire near Lancaster, Missouri.

Defendant denied that he told the Sheriff of Shelby County “I killed him, I killed him, but I didn’t mean to.” He also denied that he shot the victim or aided and encouraged his wife in the shooting.

The defendant did not request any converse of Instructions 5 or 10. Nor did defendant request an instruction submitting a “special negative defense.” He now argues, nevertheless, that the trial court committed reversible error by not instructing the jury that his wife had the right to use force in his defense. It is suggested that an instruction could be adapted from MAI-CR2d 2.41.2 in substantially the following form:

One of the issues in this case is whether the use of physical force against Larry Wilson was justifiable. The use of physical force, including the use of deadly force, is justifiable if used in lawful defense of another person. On that issue you are instructed as follows:
1. The State has the burden of proving beyond a reasonable doubt, either that Defendant shot Larry Wilson as submitted to you in instructions 5, 6, 7, 8, and 9, or, if Mitzi Stuckey shot Larry Wilson, that Mitzi Stuckey did not act in lawful defense of another person. If the evidence in this case leaves in your mind a reasonable doubt as to whether Mitzi Stuckey shot Larry Wilson, and in so doing acted in lawful self defense, then you must find the defendant not guilty.
2. If Mitzi Stuckey reasonably believed it was necessary to use deadly force to protect Defendant against what Mitzi Stuckey reasonably believed to be the use of unlawful force putting Bobbie Stuckey in imminent danger of death or serious injury at the hands of Larry Wilson, then Mitzi Stuckey acted in lawful defense of another person and Defendant Bobbie Stuckey must be acquitted.
3. In determining whether or not Mitzi Stuckey acted in lawful defense of another person you should consider all the evidence in the case.
4. If Mitzi Stuckey reasonably believed it was necessary to use the amount of physical force she used in order to protect Defendant, it is of no consequence that the appearances turned out to be false. If Mitzi Stuckey acted in lawful defense of another person, as submitted in this instruction, Defendant must be acquitted even though there was no purpose on the part of Larry Wilson to kill or seriously injury (sic) Bobbie Stuckey, and no immediate danger to Bobbie Stuckey, and no actual necessity to use such physical force as Mitzi Stuck-ey used.

The state argues that the “defense of a third person” instruction was not required because Instruction No. 5, the verdict director, required the jury to find that the defendant himself committed each of the acts required to be found in order to convict. This position is undermined by the submission of Instruction No. 10, which provides a basis for conviction even if the jury found that the defendant’s wife had shot the victim. The prosecutor further undermined the basis for the state’s present contention by arguing that the jury did not have to find that the defendant actually fired the fatal shot. The instructions are somewhat confusing as to whether the defendant could be found guilty on account of a shot fired by his wife, but we find no reversible error.

The Court of Appeals held that the failure to submit the special negative defense instruction requires reversal, relying on State v. Quisenberry, 639 S.W.2d 579 (Mo.banc 1982) for the proposition that an accessory may not be convicted of an offense of a greater degree than the principal was guilty of. We do not agree. Two conditions are needed for a reversal when error is claimed because of failure to submit an instruction which was not requested: First, the instruction must be essential to the proper submission of the case and, second, the omission must be prejudicial. Neither requirement is met in this case.

The jury, if relying on Instruction No. 10 to convict the defendant on account of a shot fired by his wife, would have to find that the defendant aided her in promoting the commission of the offense, and that he knew that she was “practically certain to commit” the offense. The defendant’s testimony negated any such finding. If the jury accepted his testimony, it could not make the findings required by Instruction No. 10, or Instruction No. 5. A verdict of not guilty would have to be returned at least on the capital murder charge. The defendant did not need a special negative defense instruction if the jury believed his testimony, which it clearly did not. Failure to give the instruction, then, had no determinative effect on the verdict and does not warrant reversal.

The conventional self-defense instruction is necessary in cases in which the defendant fires the fatal shot, because the jury could find all of the requirements of MAI-CR 15.02, and still could find that the homicide was justifiable because the defendant reasonably believed that the taking of life was necessary. Instruction on the special negative defense also is essential in a situation in which the defendant claims that he killed a person in lawful defense of another. The jury must be told that such killings are justifiable. No such instruction would be helpful in this case because the jury could not have found the required elements for a guilty verdict if it believed the defendant’s claim that his wife shot Larry Wilson to protect her husband.

An analogy is found in the “sole cause” instruction which once was in regular use in negligence cases. MAI 1.03 recognizes that the “sole cause” formulation is redundant and unnecessary because the jury, if of the opinion that the sole cause of the damage is to be found in the negligence of another, cannot find for the plaintiff and against the defendant in accordance with the verdict directing instruction. An instruction should not be given, even if correct, if it is unnecessary.

State v. Quisenberry, supra, does not aid the defendant in its holding that an accomplice cannot be held to a degree of guilt higher than the principal’s. By defendant’s testimony, he was not an accomplice in murder, robbery, or otherwise. He claimed that his wife shot the victim and that the shooting was a complete surprise to him. Whether she was guilty of a crime or not, and the degree of her guilt, are immaterial. Had the jury believed defendant’s testimony he could not be guilty of premeditated murder, either for his own acts or for those of his wife.

II.

The defendant’s brief alleges that there were inadequacies in the prosecution’s pretrial discovery disclosures. There are essentially three objections, as follows:

(1) The prosecution did not advise the defense that an expert witness would express the opinion that the victim was not dead at the time abrasions on his back and bruises on his neck and head were inflicted, and that these were inflicted before he was shot;

(2) The court erred in allowing the expert to testify on rebuttal that in his opinion the wound to the head could not have been inflicted by a .22 rifle; and

(3) The court erred in allowing the expert to testify on rebuttal that the bullet causing the head wound could not have been fired from more than 6 inches away, because of the presence of tattooing. The expert expressed these opinions to the prosecutor during telephone conversations. It is conceded that the state furnished copies of all reports of examination by the pathologist.

The fact that there were abrasions and bruises on the victim appears in the pathologist’s report, which was furnished to the defendant. Defendant’s complaint is that he was not informed as to how this information would be used. The question is whether a prosecutor must disclose conversations relating to the use of information contained in documents previously released to the defense.

The rules do not require any such disclosure. The prosecution complied with Supreme Court Rule 25.03(A)(1) and (5), V.A.M.R. by making the pathologist’s report available to the defense. The basic object of discovery is to afford the defense fair opportunity to prepare in advance of trial and avoid surprise. State v. Sykes, 628 S.W.2d 653 (Mo. banc 1982). Defendant had the opportunity to depose or interview the prosecution’s expert or to submit the reports to an expert of his own selection. The prosecutor disclosed his general theory to defense counsel several days before the trial with the statement, “you do not bleed after you are dead”. This statement should have alerted the defense attorney as to what the prosecution might contend. The testimony was not unfairly surprising. The prosecution is not obliged to share its trial brief with the defense. Defense counsel is expected to make such reasonable investigation as is necessary after the required disclosures have been made.

The remaining testimony complained of came out on rebuttal. Defendant testified that a .22 caliber rifle was missing from the gun rack in his truck. On cross-examination, he stated that the shot was fired from several feet away. Although the expert’s testimony about the caliber of the weapon and the distance from which the shot was fired was excluded from the state’s case, on a finding of inadequate disclosure, it was properly used for rebuttal.

The situation is analogous to Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). Statements inadmissible against a defendant in the prosecution’s case because of Miranda violations were found to be properly admitted for impeachment purposes. If a defendant testifies that certain facts occurred, the prosecution may present witnesses to refute that testimony. The substance of a rebuttal witness’s tetimony does not have to be disclosed prior to the trial. A defendant’s own statements which were not revealed pursuant to discovery may be used in rebuttal of the defendant’s testimony. State v. Barton, 593 S.W.2d 262 (Mo.App.1980). There is no reason why an expert witness’ statements should not be available for impeachment in the same manner. The prosecution is entitled to use any competent testimony to challenge the credibility of the defendant’s testimony.

In contrast to State v. Johnson, 524 S.W.2d 97 (Mo. banc 1975), there is no showing that the defense committed itself to a particular theory, which was then refuted by the state’s late disclosures. The opening statements are not set out in the transcript. The state disclosed its theories when the rejected evidence was offered. The defense then advanced its theories as to the weapon and the distance, knowing that the state had evidence to rebut its claims. It would be unfair to the prosecution to allow the defense evidence to go unchallenged.

III.

The defendant complains of three statements made during final argument. Objection to two of these was not made contemporaneously, but was deferred until the prosecutor had concluded his opening argument. At one point the prosecutor sought to answer the defendant’s testimony that his wife had fired the fatal shot by responding “you know what she’ll say. I didn’t do it, he did.” Shortly afterward the prosecutor referred to “losing another young life like Larry Wilson so that we will not have any other wives and children without fathers.”

Complaints concerning the substance of closing argument call for immediate objection so that corrections may be made and appropriate cautionary instructions given. An objection made after the close of argument comes too late. State v. Gates, 637 S.W.2d 280 (Mo.App.1982). These statements, furthermore, surely fall far short of plain error. The statement about what the defendant’s wife would claim cannot reasonably be read as an assertion that the prosecutor had special knowledge as to how she might testify. The comment about Wilson’s wife and children, although better left unsaid, was not highly inflammatory in the context of the case. The trial court is vested with broad discretion in controlling arguments of counsel. A conviction will be reversed for improper argument only if it is highly likely that the argument had a decisive effect on the jury’s determination. State v. Wren, 643 S.W.2d 800 (Mo. banc 1983), State v. Newlon, 627 S.W.2d 606 (Mo. banc 1982), cert. denied, 459 U.S. 884, 103 S.Ct. 185, 74 L.Ed.2d 149, rehearing denied, 459 U.S. 1024, 103 S.Ct. 391, 74 L.Ed.2d 520. We see no reason to disagree with the trial judge’s disposition of the points implicit in his overruling of the motion for new trial.

A more troubling complaint is about the prosecutor’s assertion, in rebuttal argument, that the blood found on the victim’s glasses at the Grange Park location was the result of a nosebleed caused by a blow to the head. The defense had argued vigorously that there was no showing of a source of blood other than the gunshot wound and that the presence of blood on the glasses supported the defendant’s claim that the fatal shot had been fired at Grange Park. The nosebleed theory was advanced to counter the defendant’s claim. It is not supported by any expert testimony, but autopsy photographs were introduced showing blood from the nose. There was also circumstantial evidence that the victim was alive at the time he was dragged to the pickup truck. The prosecutor’s argument that the blood on the glasses came from the victim’s nose was appropriate under the evidence. Cf. State v. Armbruster, 641 S.W.2d 763 (Mo.1982). The argument is not prejudicially erroneous simply because there might be alternate hypotheses. State v. Newlon, supra. The jury was told in MAI-CR2d 2.68 that arguments are not evidence.

IV.

The appellant complains of the introduction of evidence that Miranda warnings were given to him after he was arrested. It is improper to elicit testimony that Miranda warnings have been given and heeded, but there is no error simply in showing that the warnings were given. State v. Lamb, 468 S.W.2d 209 (Mo.1971). The defendant did not remain silent, either while in custody or at the trial. He spoke with the sheriff after receiving Miranda warnings, and, according to the sheriff, volunteered a statement that he killed the victim but did not intend to. The state was entitled to show that the defendant’s statements were made voluntarily and that he had been clearly advised that he was not obliged to make any statement.

The defendant has shown nothing requiring a new trial. The judgment is affirmed.

RENDLEN, C.J., and WELLIVER, HIGGINS, GUNN and BILLINGS, JJ., concur.

DONNELLY, J., dissents in separate opinion filed.

DONNELLY, Judge,

dissenting.

The principal opinion apparently agrees it was error to fail to instruct the jury the defendant’s wife had the right to use force in his defense. However, it holds that such error was not reversible because (1) the instruction was not essential to proper submission, and (2) the failure to instruct was not prejudicial to the defendant.

The law in Missouri has long been that justification for a homicide is a basic defense on which the court must, whether requested or not, instruct as part of the law of the case. State v. Brinkley, 354 Mo. 1051, 193 S.W.2d 49 (1946); State v. Aitkens, 352 Mo. 746, 179 S.W.2d 84 (1944). The use of force in defense of a third person is justified by reference to self-defense: “[w]hat one may do for himself, he may do for another.” State v. Grier, 609 S.W.2d 201 at 203 (Mo.App.1980). The justification of the use of force in defense of a third person is similarly available to an accomplice, there being no authority for the view that an accomplice may be convicted of a greater crime than the principal had intent to commit. State v. Quisenberry, 639 S.W.2d 579, 584 (Mo. banc 1982). Accordingly, where an accomplice has raised the issue of the justification of the principal to use force in defense of himself or another, the court must instruct the jury on that basic defense as part of the law of the case.

The principal opinion asserts that the defense of justification is unavailable to the defendant because his evidence did not establish that he was his wife’s accomplice. A defendant has no burden of establishing the state’s theory before availing himself of a defense against it. Moreover, a defendant’s participation in an offense as an accomplice may be inferred by his conduct before, during or after the commission of the offense. State v. Rollie, 585 S.W.2d 78 (Mo.App.1979). Here, a jury could reasonably have inferred from the evidence of defendant’s conduct that he was at least an accomplice in the robbery. To rebut such an inference, the defendant was entitled to his defense.

The principal opinion contends that the failure to instruct the jury on the wife’s right to use force in the defense of another was not prejudicial to the defendant, because Instructions Nos. 5 and 10 yield the same result. However, Instruction No. 10, patterned on MAI-CR2d 2.10 [withdrawn effective January 1, 1983, a date subsequent to trial of this case], and No. 5, the verdict director, as a practical matter permitted the jury to find the defendant guilty of capital murder, even though it believed that defendant’s wife, rather than defendant, actually shot the victim, without any instructional guidance as to whether she did so with or without a culpable mental state or whether defendant, independent of his wife, had a culpable mental state when she did so. The assertion that Instructions Nos. 10 and 5 are functionally equivalent to an instruction on the justification of the use of force in defense of a third person is erroneous. To excuse as unprejudicial any failure to instruct on a “special negative defense” on the ground that the jury, by its guilty verdict, necessarily found that the state proved all requisite elements set forth in its verdict directing instruction violates fundamental fairness.

I dissent.

      . Contrary to the assertion in the dissent, we do not agree that there was error in failing to instruct the jury on the defendant’s wife’s right to use force in his defense. We hold, rather, that there was no error because the instruction was unnecessary, for the reasons stated in the following paragraphs.

      . We do not have to decide whether these exclusionary rulings during the prosecutor’s case were appropriate.


source: Caselaw Access Project

author: BILLINGS, Judge. BLACKMAR, Judge,

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Michelle Rene RUMBLE, Appellant.
    No. 66155.
    Supreme Court of Missouri, En Banc.
    Nov. 20, 1984.
    Rehearing Denied Dec. 18, 1984.

      David Hemenway, Kathryn Shubik, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., John J. Oldenburg, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
   BILLINGS, Judge.

Defendant Michelle Rene Rumble was convicted of first degree felony murder [§ 565.003, RSMo 1978] and sentenced to life imprisonment. On appeal to the Missouri Court of Appeals, Eastern District, defendant contended that the trial court erred in refusing to instruct the jury on the defense of duress. The court of appeals agreed with defendant that duress should be a defense to felony murder because it would be available as a defense to the underlying felony of robbery. The court held that failure to instruct on duress constituted error; however, the court also observed that § 562.071.2, RSMo 1978 expressly provides that duress is not available as a defense to the crime of murder. Consequently, the court of appeals transferred the case to this Court — recognizing that the question of whether § 562.071.2 bars duress as a defense in a first degree felony murder prosecution under § 565.003 raises an issue of general interest or importance. We affirm.

The salient facts in this case can be briefly stated. In July of 1981, defendant, a convicted felon, turned to prostitution at the suggestion of her boyfriend, Kennard Keys. Defendant met the murder victim for the first time in July of 1981 while working the “Stroll” — an area in St. Louis habitually frequented by prostitutes and their customers. At the time defendant first met the victim, she and Keys had been living in her mother’s house in St. Louis. After her first sexual encounter with the victim, she agreed to provide him with her services approximately twice a week on a somewhat regular basis. In return for her services, the victim paid defendant between $75 and $100 for each visit.

During this period of time, defendant and Keys grew dissatisfied with their lack of money and having to live in her mother’s home. On September 3, 1981, the victim and defendant had arranged another of their customary meetings for that evening. However, defendant and Keys had decided to rob the victim rather than provide him with his usual fare.

Their plan called for the defendant to ask the victim to take her to Eads Park before going elsewhere to transact their usual business. After defendant led the victim to the park, Keys was to rob him. This plan was put into effect and the victim robbed, but he was also stabbed to death by Keys with a kitchen knife taken from the home of the defendant’s mother. Approximately $300 to $350 in cash was stolen from the body of the victim.

After killing and robbing the victim, they fled the scene in his car. The twosome returned to defendant’s mother’s house where defendant attempted to bandage Keys’ hands which had been injured when he repeatedly thrust the knife into the victim’s body. From there they drove to East St. Louis to drink beer and smoke marijuana with friends. After returning from East St. Louis, defendant accompanied Keys to a hospital where his hands were properly bandaged.

Their activities that evening concluded with a six hour stay at a St. Louis motel. However, before entering the motel, they abandoned the victim’s car — but not before they attempted to wipe it clean of any fingerprints.

The fundamental question in this case is whether § 562.071.2 bars duress as a defense in a prosecution for first degree felony murder under § 565.003. Defendant would have us answer this question in the negative. We disagree.

We initially observe that “at common law, a homicide was either murder or manslaughter .... ” State v. Clark, 652 S.W.2d 123, 125 (Mo. banc 1983). See also W. LaFave & A. Scott, Criminal Law, 528-30 (1972). In the early stages of the development of the common law there was but one type of murder, which consisted of the unlawful killing of another with a premeditated intent to kill. Model Penal Code and Commentaries § 210.2, Comment 1 (Rev., 1980) However, as society progressed and the common law developed, courts began to recognize a number of new forms of the crime of murder — including felony murder, depraved-heart murder, and intent to do grievous bodily injury murder. Id. These new forms of murder merely signified a variety of mental states “deemed sufficient to support liability for murder.” (emphasis added). Id. What remained unchanged, though, was that at common law each of these new offenses represented a single crime — murder.

In our recent decision in Clark, we- had occasion to trace the evolution of the felony murder rule in discussing the rule as applied to second degree murder. In Clark we held that “the rule does not make the underlying felony an element of the felony murder; it merely provides an additional means of providing the requisite felonious intent for murder, (emphasis in original). State v. Clark, supra, 652 S.W.2d at 126. Moreover, we expressly noted that the only way in which § 565.003 modifies the common law is that it includes the phrase “without a premeditated intent.” Id. at 126-27. Consequently, the practical effect of the felony murder rule, as codified in § 565.003, is that the rule “permits the felonious intent necessary to a murder conviction to be shown by the perpetration of or attempt to perpetrate a felony.” Id. at 126. As Judge Higgins succinctly stated in State v. Jewell, 473 S.W.2d 734, 739 (Mo.1971), “whether a killing amounting to murder, first degree, is committed in such manner that proof of its elements is constructively presumed, as in felony-murder, rather than directly, it is nonetheless murder, first degree ....”

Next, we consider the application and availability of the affirmative defense of duress. In State v. St. Clair, 262 S.W.2d 25, 27 (Mo.1953), we clearly delineated the elements and perimeters of this common law defense.

[T]o constitute a defense to a criminal charge, the coercion must be present, imminent, and impending and of such a nature as to induce a well grounded apprehension of death or serious bodily injury if the act is not done. Threat of future injury is not enough. Nor can one who has a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily injury invoke the doctrine as an excuse.

Moreover, in defining its limitations, we stated that “it is established by the great weight of authority that although coercion does not excuse taking the life of an innocent person, yet it does excuse in all lesser crimes.” State v. St. Clair, supra, 262 S.W.2d at 27.

In St. Clair we simply reaffirmed the common law rule that duress is not available as a defense to the crime of murder: section 562.071 mirrors precisely the perimeters of the rule — as defined in St. Clair.

Adopting defendant’s argument would require us to presume that when the General Assembly codified the rule of duress in § 562.071, it was unaware of our decision in St. Clair and without knowledge of the well-established legal principles just discussed. This we cannot do because in construing a statute to determine legislative intent, a court must presume that the legislature acted with a full awareness and complete knowledge of the present state of the law. State ex rel. Missey v. City of Cabool, 441 S.W.2d 35, 41 (Mo.1969).

Section 562.071.2 in unmistakably clear language declares that duress is not a defense to the crime of murder — any murder. The defendant’s argument would en-graft upon this statute words never penned and an application never intended. Because § 562.071.2 is free of any ambiguity whatsoever, our only duty is to give effect to the expressed intent of the legislature. We conclude that § 562.071.2 expressly prohibits the availability of duress as a defense to first degree felony murder.

Defendant’s second point for reversal is that the trial court erred in giving Instruction 10. This Court has previously held that “the giving or failure to give a proper instruction is error, the prejudicial effect of which, if any, to be judicially determined.” State v. Holland, 653 S.W.2d 670, 675 (Mo. banc 1983).

The trial court did not include in Instruction 10, which was a modified version of MAI-CR2d 2.12 , nor in any other instruction, the requirement that the jury must find that defendant knew that Keys was practically certain to murder the victim. Defendant contends it was error not to instruct on this point.

To be convicted of first degree felony murder under § 565.003, a person need only have the requisite intent to commit or participate in the underlying felony and “no other mental state on his part need be demonstrated because of the strict liability imposed by the felony rule.” State v. O’Neal, 618 S.W.2d 31, 38 (Mo.1981). The trial court’s refusal to require the jury to find defendant knew that Keys was practically certain to murder the victim was not error.

Defendant also contends that the giving of an instruction modeled on MAI— CR2d 2.12 in a felony murder prosecution constitutes prejudicial error because Note on Use 2 cautions against the use of MAI-CR2d 2.12 for felony murder. However Note on Use 2 also directs the reader to Note on Use 8 which indicates that courts should develop instructions submitting the responsibility of one person for the conduct of another — in felony murder prosecutions — on a case-by-case basis. That portion of the transcript covering the jury instruction conference clearly reveals that the trial judge recognized that there was a complete absence of any MAI-CR2d instructions covering felony murder. He therefore modified MAI-CR2d 2.12 to submit defendant’s responsibility for the conduct of Keys; and in so doing, he gave an instruction that contained a correct statement of the law of first degree felony murder. The judgment is affirmed.

RENDLEN, C.J., and WELLIVER, HIGGINS, GUNN and DONNELLY, JJ., concur.

BLACKMAR, J., concurs in separate opinion filed.

BLACKMAR, Judge,

concurring.

I concur for the reasons stated in the principal opinion and for the further reason that the defendant, who had ample opportunity to warn the victim of his impending fate, did not make a submissible case of duress.

      . Section 565.003, RSMo 1978 reads as follows:
      Any person who unlawfully kills another human being without a premeditated intent to cause the death of a particular individual is guilty of the offense of first degree murder if the killing was committed in the perpetration of or in the attempt to perpetrate arson, rape, robbery, burglary or kidnapping.
      In 1983 the General Assembly repealed this statute and enacted a new first degree murder provision, § 565.020, RSMo Cum.Supp.1983; however, the present case is governed by § 565.003.

      . We note that in 1983 the Arizona Supreme Court was confronted with this question in State v. Berndt, 138 Ariz. 41, 672 P.2d 1311 (1983). Berndt involved a statute which provided that duress “is unavailable for offenses involving homicide or serious physical injury." State v. Berndt, 672 P.2d at 1314. The court held that “[fjirst degree murder, whether premeditated or felony murder, is, of course, a homicide [and] whether the jury convicted appellant of premeditated or felony murder, the plain language of A.R.S. § 13-412(c) bars duress as a defense." Id. See also People v. Petro, 13 Cal.2d 245, 56 P.2d 984, 985 (1936); State v. Moretti, 66 Wash. 537, 120 P. 102, 103 (1912).

      .Section 562.071.1, RSMo 1978 provides:
      It is an affirmative defense that the defendant engaged in the conduct charged to constitute an offense because he was coerced to do so, by the use of, or threatened imminent use of, unlawful physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist.
      However, the second subsection provides:
      2. The defense of “duress” as defined in subsection 1 is not available:

      (1) As to the crime of murder;

      (2) As to any offense when the defendant recklessly places himself in a situation in which it is probable that he will be subjected to the force or threatened force described in subsection 1.

      . At a later stage in the development of the criminal law, legislatures began dividing common law murder into degrees. 40 CJ.S. Homicide, § 29 (1944). However, this development resulted from the recognition that different species of the crime of murder may warrant different degrees of punishment. Id. But the assigning of degrees did not change the underlying nature of the crime of murder.

      . Instruction No. 10
      If you do not find the defendant guilty of capital murder, then you must consider if she is guilty of murder in the first degree.
      A person is responsible for her own conduct and she is also responsible for the conduct of another person in committing an offense if she acts with him with the common purpose of committing that offense, or if, for the purpose of committing that offense, she aids or encourages the other person in committing it.
      If you find and believe from the evidence beyond a reasonable doubt:
      First, that on or about September 3, 1981, in the City of St. Louis, State of Missouri, the defendant or Kennard Keys caused the death of Lelvin Mattingly by stabbing him, and Second, that the defendant or Kennard Keys did so in robbing or attempting to rob Lelvin Mattingly,
      then you are instructed that the offense of murder in the first degree occurred, and if you further find and believe from the evidence beyond a reasonable doubt:
      Third, that with the purpose of promoting or furthering the commission of robbery, the defendant acted together with or aided or encouraged Kennard Keys in committing that offense,
      then you will find the defendant guilty of murder in the first degree.
      However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the propositions submitted in this instruction, you must find the defendant not guilty of that offense.
      A person forcibly steals, and thereby commits robbery, when, in the course of stealing, he uses or threatens the immediate use of physical force upon another person for the purpose of:
      (a) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or
      (b) Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the theft.
      A person steals, as that term is used above, if he appropriates property of another with the purpose of depriving him thereof, either without his consent or by means of coercion.

      . On April 30, 1982 this Court adopted a new MAI-CR2d 2.12, (effective January 1, 1983) which is the version the trial court selected to use as a pattern for Instruction 10. All references to MAI-CR2d 2.12 will be to the 1983 version.


author: BLACKMAR, Judge. BILLINGS, Judge,

text:
    George H. PACE, et. al., Respondents-Appellants, v. CITY OF HANNIBAL, Missouri, a Municipal Corporation, Appellant-Respondent.
    No. 65725.
    Supreme Court of Missouri, En Banc.
    Nov. 20, 1984.
    Rehearing Denied Dec. 18, 1984.
    J. Patrick Wheeler, Canton, for respondents-appellants.
    Rhonda C. Thomas, St. Louis, Fredrich J. Cruse, Hannibal, for appellant-respondent.
    James J. Wilson, Edward J. Hanlon, St. Louis, for amicus curiae, City of St. Louis (in support of appellant-respondent).
    William Patrick Cronan, Fayette, for ami-cus curiae, Mo. Mun. League.
    William H. Dahman, James W. Whitney, Jr., Terry Burnet, St. Louis, for amicus curiae, City of Hermann (in support of respondents-appellants).
    Robert B. Hoemeke, Peter T. Wendel, St. Louis, for amicus curiae, Mo. Ass’n of Mun. Utilities (in support of appellant-respondent).
    Richard S. Steinberg, St. Joseph, for ami-cus curiae, City of St. Joseph.
    John P. Brown, Columbia, for amicus curiae, City of Columbia.
    Karen E. Marty, Springfield, for amicus curiae, City of Springfield.
   BLACKMAR, Judge.

The basic question presented by this appeal is whether an increase in the gross amount of funds transferred by the Hannibal Board of Public Works to the general revenue fund of the City of Hannibal as a payment “in lieu of franchise tax” is viola-tive of the so-called Hancock Amendment (Art. X, § 22(a) of the Missouri Constitution).

Since 1914 the City of Hannibal has provided certain utility services to its residents. The city currently owns and operates a water and sewer system and also distributes electricity. These utility systems are expressly authorized by statute.

In 1957 Hannibal adopted a charter, and is now a home rule constitutional charter city. See Art. VI, § 19 of the Missouri Constitution. Under Section 12.07 of the charter, the citizens of the city have vested the Hannibal Board of Public Works with “the exclusive power and duty to establish rates and provide for the assessment and collection of charges” for municipally operated utilities. The board is composed of citizens appointed by the City Council for staggered terms. The record does not demonstrate any guiding standards for the establishment of rates, and, as a municipal utility operation, the board is not subject to the supervision of the Missouri Public Service Commission.

The board, from the inception of the utility operation, has paid annually a percentage of its gross receipts into the general revenue fund of the city. These payments are said to be made “in lieu of a franchise tax,” such as is ordinarily levied upon investor-owned utilities. Our attention has not been directed to anything in the charter, statutes or ordinances which mandates such payments by the board. So far as the record shows, the payments are voluntary on the part of the board, and the board could reduce or eliminate them if so disposed. Since 1963 the payments in lieu of franchise tax have been established at 5½ percent of gross revenues from the utility operation.

This litigation is the result of an increase in the rates for water and sewer services decreed by the board in 1981. Application of the 5V2 percent factor to the increased utility revenues created a net increase in the amount transferred into the general revenue fund of the city of Hannibal. The plaintiffs, on behalf of a class composed of the utility ratepayers of the City of Hannibal, allege that the 5½ percent factor must be reduced in proportion to the increase in rates, so that the city does not derive additional revenue by reason of the increased rates.

It should be emphasized that the propriety of the rate increase is not placed in issue. It is specifically not asserted that the board lacked the authority to order an increase in utility rates, or that the increase required a vote of the electorate under the terms of the Hancock Amendment. Nor do the plaintiffs challenge the authority of the board to make payments to the city in lieu of franchise taxes.

The petition asserted four claims, as follows: (1) that no statute, ordinance or charter provision established adequate guiding standards for the setting of utility rates by the board; (2) that the board, under the provisions of the Hancock Amendment, had the duty of reducing the percentage factor for the payment in lieu of franchise taxes in proportion to the increase of rates; (3) that the ratepayers were entitled to a refund, on account of the rollback provision as described in point (2); and (4) that the plaintiffs were entitled to attorneys’ fees in accordance with the provisions of the Hancock Amendment.

The trial court sustained contentions (2) and (4) of the plaintiffs petition, holding that the board was required to reduce the 5½ percentage factor, and awarding attorneys’ fees. It denied the claim for refund as set forth in contention (3), on the ground that there was no express authority for ordering a refund as prayed, and also rejected contention (1) finding that there was no unlawful delegation of legislative authority. Both parties have appealed from the portions of the decree adverse to them. The plaintiffs also ask for an additional allowance of attorneys fees on appeal.

We are met at the outset with a question of jurisdiction. The essential test is whether the validity of the amendment is challenged, and such is not the case here. The jurisdictional provisions of the Hancock Amendment are not appropriate either, because the state is not involved in this case. Nor is the Hancock Amendment a “revenue law” in the constitutional sense. Inasmuch, however, as the point is fairly arguable, and the parties have come here in good faith to brief and argue the ease, we elect to assume jurisdiction.

Having considered the case, we conclude that the grant of authority to fix utility rates is not invalid as an improper delegation of legislative power, and affirm the judgment of the trial court on plaintiffs’ contention (1). We conclude that the Hancock Amendment does not require a rollback, and therefore reverse the decree of the trial court on contention (2). Since we find no violation of the provisions of the Hancock Amendment, plaintiffs’ contentions (3) and (4) fall out of the case.

1. Invalid Delegation of Legislative Power

It is the plaintiffs’ contention that the blanket authority vested in the board to fix utility rates constitutes an invalid delegation of legislative power. Although plaintiffs cite several cases about unlawful delegation of legislative power, none is a utility case. No authority has been cited which supports the claim made here nor do the plaintiffs question the reasonableness of the rates set by the board in 1981.

Moreover, the purpose in making this argument is difficult to perceive. The claim, carried to its logical extreme, would invalidate the entire utility system, for utilities cannot operate without charging their patrons for the services furnished. The authority to operate a municipal utility connotes the authority to operate it on a sound basis. Oswald v. City of Blue Springs, 635 S.W.2d 332, 333-34 (Mo. banc 1982). Were this not so, the utilities would either cease to operate or else they would constitute a permanent drain on the city treasury and on taxpayers in general. Such obviously was not the intention of the legislature in authorizing municipal utilities. It should not be difficult to determine how much the utilities must charge in order to maintain their operations on a sound basis and to provide for reasonable returns.

The plaintiffs argue that there must be some restraints on the power of the board to prescribe rates, because rates for municipal utilities, in contrast to those of investor-owned utilities, are not subject to regulation by the Missouri Public Service Commission. The argument is not persuasive because there is a vital distinction between municipal utilities and investor-owned utilities. The latter have as their ultimate purpose the realization of a profit for the shareholders. The legislature, in its wisdom, might well have concluded that investor-owned utilitites, endowed with natural monopoly, should not be allowed complete discretion as to rates charged, because they would be tempted to maximize profits free from competitive inhibition. The legislature might also conclude that normal political pressures would be sufficient to keep rates of municipal utilities in line. There is no particular motive for turning a profit. We need not speculate as to whether some sort of lawsuit might be filed to prevent a municipality from charging unreasonable rates for utility service. No such claim has been presented here.

The claim of unlawful delegation of legislative power, for whatever purpose advanced, is not meritorious. The trial judge did not err in refusing the relief sought.

2. Hancock Amendment

The trial court upheld the plaintiffs’ assertion that there was a violation of Art. X, § 22(a) of the Missouri Constitution, finding that the payments in lieu of franchise tax came within the language “tax, license, or fees.” The pertinent provisions are as follows:

Counties and other political subdivisions are hereby prohibited from levying any tax, license or fees, not authorized by law, charter or self-enforcing provisions of the constitution when this section is adopted or from increasing the current levy of an existing tax, license or fees, above that current levy authorized by law or charter when this section is adopted without the approval of the required majority of the qualified voters of that county or other political subdivision voting thereon. If the definition of the base of an existing tax, license or fees, is broadened, the maximum authorized current levy of taxation on the new base in each county or other political subdivision shall be reduced to yield the same estimated gross revenue as on the prior base. If the assessed valuation of property as finally equalized, excluding the value of new construction and improvements, increases by a larger percentage than the increase in the general price level from the previous year, the maximum authorized current levy applied thereto in each county or other political subdivision shall be reduced to yield the same gross revenue from existing property, adjusted for changes in the general price level, as could have been collected at the existing authorized levy on the prior assessed value.

The plaintiffs place strong reliance on Roberts v. McNary, 636 S.W.2d 332 (Mo. banc 1982), for the proposition that the in lieu of franchise tax payment is a tax within the meaning of Art. X, § 22(a) because it is paid into the general revenue fund of the city. Roberts specifically involved fees charged by St. Louis County for “numerous county services, such as parks and building inspection.” This case held that all charges to the public for governmental services were within the provisions of the amendment, whether or not paid into a general revenue fund, and could not be increased without a vote of the people. We found that this conclusion flowed from the plain language of the amendment. Citing dictionary definitions of “tax” “license” and “fee”, the Court declined to narrow these words so as to apply only to those levies which seek to raise general revenue.

The Hancock Amendment requires voter approval for increases in taxes, licenses or fees, with the purpose of reining increases in governmental revenue and expenditures. Roberts, supra at 336, Buchanan v. Kirkpatrick, 615 S.W.2d 6, 14 (Mo.banc 1981). So far as this record shows the payments in lieu of franchise tax were not imposed by statute, charter or ordinance, but represented voluntary payments by the board into the city’s general revenue fund. There is no similarity to the user fees considered in Roberts because the 5⅝ percent factor is not charged against the users. They pay the increased rates, to which the percentage factor is then applied. Thus the application of a preexisting 5V2 percent factor to the rate increase simply does not amount to the imposition of a “tax, license or fee” in the sense of Art. X, § 22(a). To hold that the payments in lieu of franchise tax are covered by the Hancock Amendment would enlarge upon its plain language, contrary to the teaching of Roberts v. McNary, supra.

We do not understand the plaintiffs to claim that they should be entitled to partial relief on the ground that the payments in lieu of franchise taxes were invalid. The plaintiffs concede that if a franchise tax were levied against a private utility, based on a percentage of gross receipts, and if the utility’s rates were then lawfully increased, the Hancock Amendment would not require a rollback. They likewise concede that the rate of a municipal sales tax would not have to be adjusted simply because the tax were found to generate more revenue than in past years.

The purpose which appears in the whole plan of utility operations is to place municipal utilities on the same basis as investor-owned utilities. A public utility, whether investor or publicly owned, requires a franchise to operate. Franchises, in addition to awarding monopoly, also regularly permit the use of public property, including streets, for the location, maintenance and repair of the utility’s distribution facilities. A franchise tax is designed, in part at least, to repay the municipality for inconvenience and expense attending the use of public property. It is fairly inferable that the payments made by the Hannibal Board of Public Utilities were designed to make similar compensation to the city. Were it not for the payments in lieu of franchise tax it would be appropriate for the city to levy a charge against the Board of Public Utilities for the fair value of the use of public property, including provision for maintenance and repair on account of wear, tear and damage attributable to the utility.

Inasmuch as the payments do not fall within the compass of “tax, license or fees,” there is no ground for applying the “rollback” provisions triggered by a broadening of the base for a “tax, license, or fees.” Here too the language of the amendment simply does not fit the facts before us.

There is absolutely no showing that the basic rate increase was occasioned by anything other than a good faith determination by the board that the increase was necessary to a sound operation. The utility operation, the setting of rates by the board, and the payments in lieu of franchise tax, are all long established and should not be lightly disturbed. We need not speculate further except to say that the situation shown by this record simply does not fit Art. X, § 22(a) of the Missouri Constitution.

The judgment finding violation of Art. X, § 22(a) is reversed. This reversal destroys the basis for fees and so that portion of the judgment allowing fees is likewise reversed. The balance of the judgment is affirmed.

RENDLEN, C.J., and WELLIYER, HIGGINS, GUNN and DONNELLY, JJ., concur.

BILLINGS, J., dissents in separate opinion filed.

BILLINGS, Judge,

dissenting.

The principal opinion squarely recognizes there is a “question of jurisdiction” for this Court to entertain this appeal under Art. V, § 3, of the Missouri Constitution, but, nevertheless, concludes that because “the parties have come here in good faith to brief and argue the case, we elect to assume jurisdiction”, relying upon Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193 (Mo. banc 1972).

The jurisdiction of this Court is carefully delineated to certain specifically described classes of cases and the instant appeal falls beyond the narrow scope of our jurisdiction as found in the Constitution. Consequently, jurisdiction of this appeal is in the court of appeals and we should not, under the guise of the “general interest and importance” rubric found in Foremost-McKes-son, reach out to take or elect to assume jurisdiction of appeals which the Constitution directs elsewhere. To do so, in my view, flies in the face of the clear provisions of the Constitution we are charged with following. The fact that we are the court of last resort does not and should not give us that license. ⅞

I would transfer the appeal to the court of appeals as provided by Art. V, § 11, Mo .Const.

      . Section 91.450, RSMo 1978 was enacted in 1909 by section 9914, and authorizes cities of the third and fourth class and any city having a special charter to operate its own utilities.

      . We are not informed in the record as to the authority for establishing rates prior to 1957.

      . Natural gas is provided for the residents of Hannibal by an investor-owned utility. It is required to pay a franchise tax to the city which is calculated on the basis of gross revenues. Many publicly-owned utilities do transfer some revenue to the taxing bodies in what is called a "payment in lieu of taxes”. See Hall, Are Rates Charged by Government-Owned Utilities Too Low?, 112 Public Utilities Fortnightly 37, 38 (August 4, 1983).

      . Effective July 1, 1981, the charges for water and sewer services were increased as follows:
      WATER
      —from $.99 to $1.24 per one thousand gallons for the first 5,000 gallons.
      —from $.84 to $1.09 per one thousand gallons for the next 20,000 gallons.
      —from $.59 to $.84 per one thousand gallons for the next 25,000 gallons.
      —from $.51 to $.76 per one thousand gallons for the next 1,450,000 gallons.
      —from $.46 to $.71 per one thousand gallons for any gallons over such amount. Additionally, the minimum charge was increased from $2.00 to $3.00 per month. SEWER
      —from one half of the water bill per month to $.98 per one thousand gallons of water used plus a minimum charge of $.95 per month.

      . For fiscal year 1982, the first full year after the utility rate increases, a net increase of $26,-608.98 was transferred by the Board of Public Works to the general revenue of the City of Hannibal.

      . We do not decide whether the Board of Public Utilities is a "political subdivision” within the meaning of Art. X, § 22(a) of the Missouri Constitution.

      . Section 22(a) of the Hancock Amendment, later quoted in full, requires a rollback in certain instances.

      . Art. V, § 3 of the Missouri Constitution.

      . Art. X, § 23 of the Missouri Constitution.

      . See Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193, 196 (Mo.banc 1972) where this Court said, "by reason of the general interest and importance of the other questions in the case and need for adjudication at this level, that we will retain and decide the case, rather than go through the time-consuming procedure of sending the case to the Court of Appeals and then transferring it back prior to opinion."

      .Section 12.07 of the Hannibal City Charter vests the Board of Public Works with "the exclusive power and duty to establish rates and provide for the assessment and collection of charges” for city operated utilities.

      . This distinction is highlighted in Hall, supra note 3.

      . In addition, the rates charged by government-owned utilities are generally lower than those charged by privately-owned utilities. Thus, one of the main reasons for government regulation of private utilities — to keep rates reasonable — does not exist for municipal utility operations. For a good economic explanation of why those rates are lower see Hall, supra note 3.

      . See Hall, supra, note 3.


author: PUDLOWSKI, Judge.

text:
    LANDMARK BANK OF LADUE (formerly Ladue Innerbelt Bank and Trust Co., etc.), et al., Plaintiffs-Appellant, v. GENERAL GROCER CO., Garnishee of M.H. & H. et al., Defendants-Resondents.
    Nos. 47544, 47639.
    Missouri Court of Appeals, Eastern District, Division Eleven.
    Aug. 28, 1984.
    Motion for Rehearing and Transfer Denied Nov. 20, 1984.

      Sleater & Sleater, W.W. Sleater, Clayton, for plaintiffs-appellants.
    Armstrong, Teasdale, Kramer & Vaughan, St. Louis, for defendants-respondents.
   PUDLOWSKI, Judge.

Landmark Bank of Ladue (“garnishor”) appeals from the trial court’s order sustaining General Grocer Company’s (“garnishee”) motion to dismiss the garnishment and from the trial court’s order awarding costs to garnishee. We affirm.

On January 7, 1981, garnishor obtained judgment against eight defendants for past rent of a supermarket building for the period of time between April 1, 1974 and August 31, 1975. See Pine Lawn Bank & Trust Company v. M.H. & H., Inc., 607 S.W.2d 696 (Mo.App.1980). In aid of execution, garnishor summoned garnishee on March 11, 1983. Garnishee received service on March 22, 1983.

Thereafter, on April 12, 1983, garnishor filed its interrogatories in the garnishment proceeding. In its answers, garnishee denied possession or control of any funds or property of the defendants at the time the writ was served.

On May 2, 1983, garnishor filed its denial of garnishee’s answers and objections. Garnishor alleged that garnishee made arrangements for the assignment of a lease for a retail grocery store from M.H. & H., Inc., to Bonne Foods in January 1973; that garnishor commenced foreclosure proceedings against the shopping center in which the store was located in March 1974; that garnishee’s vice-president and general counsel, George Thomas, advised the defendants to cease making rent payments and instead make payments to garnishee which would hold the rents in escrow pending a determination of who was entitled to collect the rents.

Garnishor further alleged that garnishee credited to this account 62 payments of $500.00 between November 15, 1974 and October 29, 1975, which totalled $32,458.78 including interest; that this account was a trust fund; that garnishee bore a fiduciary relationship to whomever could establish the rights to collect the rents; that the fund was maintained for the purpose of having the landlord forego its rights to evict the tenants; and that if garnishee had disbursed any funds from this account, it had done so in breach of its fiduciary duty to garnishor.

In its prayer, garnishor requested the following relief: (1) that the trial court find that the garnishee had in its possession or under its control a sum in excess of the amount due under garnishor’s judgment between the service of the garnishment and the writ’s return date; (2) that garnishee be ordered to pay into the court the amount of the judgment; or (3) in the alternative that the funds are not paid into the court, that judgment be entered in favor of garnishor plus $100,000.00 in punitive damages.

On May 12, 1983, garnishee filed a motion to dismiss garnishor’s denial for failure to state a cause of action upon which relief can be granted, or in the alternative, to strike certain portions of garnishor’s denial. The trial court sustained the motion to dismiss holding:

The Court, after considering the pleadings and the oral arguments and the briefs of law, does sustain the Garnishee’s Motion To Dismiss Garnishment proceedings as the court is of the opinion that Plaintiff’s pleadings alleging a breach of fiduciary duty exceed the scope of a garnishment action, and that the garnishment statute is not broad enough to include the power to bring a suit to recoup money previously paid out under the direction of the defendant-debtor.

Thereafter, garnishee filed its motion for costs. On August 4, 1983, the trial court awarded garnishee the sum of $2,500.00. This consolidated appeal follows.

Garnishor raises three issues. First, the court erred in dismissing the garnishment because the garnishor asserts it was entitled to a trial on the issues framed by its denial. Second, the trial court erred in dismissing the garnishment because the trial court had not ruled upon garnishor’s objections to garnishee’s interrogatory answers. Last, the trial court abused its discretion in awarding garnishee $2,500.00 as costs.

Garnishor first alleges error in the trial court’s order sustaining garnishee’s motion to dismiss the garnishment because gar-nishor argues it was entitled to a trial on the issues framed in its denial. We disagree.

The issues in a garnishment are normally established by the garnishor’s denial of the garnishee’s interrogatory answers and the latter’s reply or response. RSMo § 525.190 (1978); Rule 90.13(c).

In garnishment cases, the summoning of the garnishee, and the propounding of the interrogatories to him and his answer thereto, are merely the preliminaries to the making up of the issues between plaintiff and the garnishee. When the latter answers saying he has no money or property of the defendant, the denial of the plaintiff is the foundational pleading on which his cause of action against the garnishee rests. The issues are made up, not by the interrogatories and answer, but by the denial and reply.

Rees v. Peck-King Mortgage Company, 206 Mo.App. 690, 230 S.W. 666, 667 (1921). This denial stands in place of the petition and like any other pleading must contain the grounds upon which recovery is sought. Id. at 668.

For purposes of this review, we treat garnishor’s denial as we would an ordinary petition. “On a motion to dismiss for failure to state a claim, we are required to construe the petition favorably and to give the pleader the benefit of every reasonable and fair intendment in view of the facts alleged.” Laclede Gas Company v. Hampton Speedway Company, 520 S.W.2d 625, 629-30 (Mo.App.1975). We will not sustain a motion to dismiss for failure to state a claim unless it appears that the pleader can prove no set of facts in support of his claim which would entitle him to relief. Id. at 630.

In the present case, garnishor failed to allege any facts sufficient to sustain its recovery against garnishee. Although gar-nishor alleged that garnishee possessed the funds which Bonne Goods owed garnishor, it failed to allege any facts establishing garnishee’s possession or control of the funds during the time of service of the writ and its return date. It is significant that garnishee’s account ledger for Bonne Food’s funds shows a zero balance. Indeed, the appeal from the judgment which this garnishment is in aid of execution states:

On September 2, 1975, Mr. Rubenstein requested that General Grocer Company [garnishee] send the rentals in Bonne Foods’ escrow account to DMI in care of him. General Grocer complied, and DMI agreed to indemnify the company should Bonne Foods be liable to another for the rent.

Pine Lawn Bank & Trust Company, 607 S.W.2d at 699.

This aside, garnishor also alleged that if garnishee had transferred any funds owing to garnishor from Bonne Foods, garnishee had done so in breach of its fiduciary duty to garnishor. Under this allegation, gar-nishor sought $100,000.00 in punitive damages plus the $32,458.78 judgment. Thus, the dispositive question before us is whether the scope of a garnishment in aid of execution has the breadth to encompass an action for breach of fiduciary duty. We think not.

Garnishment in aid of execution is an incidental remedy whereby a plaintiff seeks to collect the judgment by reaching the defendant’s property in the hands of a third party. Tom Houlihan’s Men’s Wear v. Wilkerson, 407 S.W.2d 58, 60 (Mo.App.1966). Because this remedy is a creature of statute in derogation of the common law, strict compliance with all of the requirements formerly imposed by statutes and now enjoined by civil rules is essential to confer and support jurisdiction in a garnishment proceeding. State ex rel. Bagnell Investment Company v. Luten, 647 S.W.2d 539, 541 (Mo. banc 1983). As an incidental remedy, garnishment was never intended to enable a plaintiff to enforce claims held by him directly against the garnishee. 38 C.J.S. Garnishment § 2 (1943).

Ordinarily, the test of a garnishee’s liability is measured by its liability to the defendant. Wilkerson, 407 S.W.2d at 60. “Thus, if the garnishee owes the defendant nothing, then (if there is no fraud or collusion) the garnishee is not liable to the defendant’s creditor.” Id. Where fraud enters into the transaction, however, an exception to the general rule follows, and the garnishor may garnish the funds in the hands of fraudulent transferees. Mercantile-Commerce Bank & Trust Company v. Meletio, 84 S.W.2d 655, 658 (Mo.App.1935).

Although garnishor alleged a breach of fiduciary duty in its denial, garnishor asserts in its brief that any transfer of Bonne Food’s funds held by garnishee was fraudulent as well. In support of this contention, garnishor relies on Leonard v. Martin, 282 Mo. 48, 214 S.W. 968 (Mo.1919), and Brown Shoe Company v. Sacks, 201 Mo.App. 360, 211 S.W. 133 (1919). In Leonard, the Missouri Supreme Court ruled that garnishment would lie against the garnishees because they had participated with full knowledge in the fraudulent purchase and sale of the garnishor’s cattle. In Brown Shoe Company, the court of appeals held that the garnishee was subject to the garnishment because he came into possession of the defendant’s property through a fraudulent transfer in violation of the Missouri Bulk Sales Law.

Though these cases both stand for the rule where the garnishee fraudulently gains possession of the defendant’s property, a writ of garnishment may be used to reach the property, they have no application to the facts garnishor pled in its denial. Giving garnishor’s denial the benefit of every favorable intendment and accepting the facts stated as true, we can infer no fraudulent actions by either Bonne Foods or garnishee.

In the present case, it is evident that garnishor has attempted to bring a separate and independent action against garnishee for an alleged breach of fiduciary duty within the narrow confines of a garnishment in aid of execution. Garnish- or’s action requires a proceeding more elastic and comprehensive than a garnishment. Neither Chapter 525, RSMo 1978, nor Rule 90 provide for an action by a garnishor against a garnishee for punitive damages. We cannot permit garnishor to substitute the purely incidental remedy of garnishment for an action alleging breach of fiduciary duty and requesting punitive damages. The trial court properly dismissed garnishor’s action for failure to state a claim upon which recovery against garnishee could be sustained with in the scope of a garnishment proceeding.

Garnishor next argues the trial court erred in dismissing the garnishment because the trial court had not ruled upon garnishor’s objections to garnishee’s interrogatory answers. Garnishor asserts that it was denied its discovery rights to inquire into garnishee’s status as a debtor of the defendants. To support this contention, garnishor relies on the Squire’s Shop, Inc. v. Boehlow, 482 S.W.2d 738 (Mo.App.1972). In Boehlow, the trial court sustained the defendant’s motion to quash the garnishment before the return date of the writ. This effectively denied the garnishor any opportunity to inquire into the garnishee’s status as a debtor of the defendant as permitted under RSMo § 525.130 (1969). The court of appeals reversed holding where the garnishor had a statutory right to file interrogatories to the garnishee at the return date of the writ, defendant’s motion to quash the garnishment, which was made prior to the return date of the writ, was prematurely sustained.

The present ease merits a different result. Unlike Boehlow, the trial court dismissed the garnishment after the return date of the writ and after the interrogatories were filed and answered. Although garnishor denied and objected to garnishee’s answers, the trial court correctly sustained garnishee’s motion to dismiss. As we have already determined, garnishor failed to allege sufficient facts to maintain an action within the scope of a garnishment in aid of execution.

This leaves the remaining question of whether the trial court erred in awarding garnishee $2,500.00 as costs. Garnishor alleges error on four grounds: (1) garnishee’s motion was untimely; (2) RSMo § 525.240 (1978) does not provide for costs in original proceedings, but only in subsequent proceedings; (3) garnishee was the main litigant and not an innocent stakeholder; and (4) the amount awarded was excessive.

We treat the trial court’s order sustaining garnishee’s motion to dismiss the garnishment for failure to state a claim as we would an order to a quash a garnishment. Orders quashing writs of garnishment are final judgments within RSMo § 512.020 (1978). Flynn v. First National Safe Deposit Company, 284 S.W.2d 593, 596 (Mo.1955). Accordingly, orders quashing writs of garnishment do not become final until thirty days after the date of entry and, until that time, the trial court retains jurisdiction to reopen, correct, and modify its judgments. Id. at 597; Rule 75.01.

In the present case, garnishee’s Rule 90.18(b) motion for costs was timely filed. The trial court sustained garnishee’s motion to dismiss the garnishment on July 12, 1983. Consequently, the trial court retained jurisdiction over the garnishment when the motion for costs was filed on July 19, 1983 and when the motion was ruled upon on August 4, 1983. The fact that garnishor filed its notice of appeal from the order dismissing the garnishment on July 25, 1983 did not serve to remove the trial court’s jurisdiction to award costs. Flynn, 284 S.W.2d at 597.

Under RSMo § 525.240 (1978), the garnishor’s failure to recover judgment against the garnishee is a condition precedent to an award of costs and attorney’s fees to the garnishee. First National Bank in Chester v. Conner, 485 S.W.2d 667, 672 (Mo.App.1972). Rule 90.18(b) provides in part, “If a garnishor does not recover judgment against the garnishee, all of the costs attending such garnishment shall be taxed against the garnishor.” This allowance should be an amount sufficient to indemnify the garnishee for his time and expenses, including attorney’s fees. In the present case, where garnishor failed to recover judgment against garnishee, the trial court properly awarded costs under Rule 90.18(b).

Garnishor also contends the trial court erroneously awarded costs to garnishee because garnishee was an active litigant and not a mere stakeholder. In support of its position, garnishor relies on First National Bank which holds that a garnishee who becomes an active litigant and loses is not entitled to an indemnification for attorney’s fees, costs, and expenses. 485 S.W.2d at 672. In that case, the garnishee prevailed on a jurisdictional ground. Garnishor argues that it follows that a garnishee is entitled to costs only if he prevails on a jurisdictional defect or upon a ground which would render the underlying judgment void. We disagree and find no such limitation in either RSMo § 525.240 or Rule 90.18(b).

Garnishor’s final contention is that the trial court abused its discretion in the amount of costs it awarded garnishee. In the present case, garnishee sought $4,257.30 for attorney’s fees plus $370.00 for the time spent by garnishee’s employees. The trial court awarded $2,500.00 as a reasonable fee for the services and time rendered. We find the evidence in this case supports the trial court’s award. The trial judge who makes the allowance is in the most favorable position to evaluate the costs and make a proper award. Flynn, 284 S.W.2d at 597. Moreover, the present case was not an ordinary garnishment proceeding. It was unusually complex and included allegations of a breach of fiduciary duty and exposed garnishee to potential liability of over $130,000.00, including $100,000.00 in punitive damages. We have no basis for holding that the trial court abused its discretion.

The trial court’s order sustaining garnishee’s motion to dismiss the garnishment and the trial court’s award of costs to garnishee are affirmed. Additionally, garnishee’s cost on appeal totaling $2,517.70 awarded pursuant to Rule 90.18(c).

CRANDALL, P.J., and DON W. KENNEDY, Special Judge, concur.

      . Formerly Pine Lawn Bank & Trust Company.

      . In Pine Lawn Bank & Trust Company v. M.H. & H., Inc., 607 S.W.2d 696 (Mo.App.1980), we determined garnishor was entitled to the rent.

      . Garnishor's failure to state a cause of action is a proper ground for quashal or dismissal of a garnishment proceeding. 38 C.J.S. Garnishment § 270(c) (1943).


author: CRANDALL, Judge.

text:
    Gary Leon RILEY, Appellant, v. STATE of Missouri, Respondent.
    No. 48409.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 13, 1984.
    Philip Heagney, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   CRANDALL, Judge.

This is an appeal from the dismissal of a Rule 27.26 motion without an evidentiary hearing. We reverse and remand with directions.

For a summary of the procedural morass of movant’s earlier attempts to set aside his sentences, see Riley v. State, 588 S.W.2d 738 (Mo.App.1979). In the present appeal movant alleges trial court error (1) in failing to give movant notice and an opportunity to be heard before dismissing his motion; (2) in ruling that movant was not entitled to an evidentiary hearing on the motion; and (3) in overruling movant’s motion for disqualification of judge.

In this Rule 27.26 proceeding, movant, by appointed counsel, filed his motion on January 9, 1984. On January 23, 1984, the trial court filed its findings of fact, conclusions of law, and entered its order dismissing the motion with prejudice without an evidentia-ry hearing and without notice.

“ ‘It is a cardinal principle, that whenever a party’s rights are to be affected by a summary proceeding, or motion in court, that party should be notified, in order that he may appear for his own protection.’ * * Reasonable notice to parties whose interests are at stake in a contemplated order is a prerequisite to the lawful exercise of the court’s power.” Hoppe v. St. Louis Public Service Co., 361 Mo. 402, 235 S.W.2d 347, 350 (banc 1950).

In Wheatley v. State, 559 S.W.2d 526, 526 (Mo. banc 1977), the court stated: “This case presents the question of whether, after counsel has been appointed for a petitioner who files pro se a motion for postconviction relief under rule 27.26, the trial court may, without giving counsel notice or an opportunity to be heard, summarily deny the motion.” The court quoted the above-cited language from Hoppe, and held counsel should have been notified. It further noted that counsel and movant were entitled to assume petitioner’s pro se motion had stated a claim upon which relief could be granted because counsel had been appointed. The court concluded: “[T]he orderly way to proceed consistent with due process under these circumstances was to notify counsel of the court’s intention to rule on the matter at a time certain, which the court could easily have done, and permit counsel an opportunity to be heard and to amend the petition.” Wheatley, 559 S.W.2d at 527.

In 1978, one year after Wheatley, the Missouri Supreme Court implemented a per se rule requiring counsel be appointed to all indigent Rule 27.26 petitioners without a preliminary finding that the initial pro se petition stated a claim. Fields v. State, 572 S.W.2d 477 (Mo. banc 1978). Since that decision, the supreme court has summarized Wheatley without explaining how Fields might affect it. “All Wheatley required is that movant’s counsel be given an opportunity to be heard before the trial court dismisses a 27.26 motion for failure to state a claim .... ” Seales v. State, 580 S.W.2d 733, 734 (Mo. banc 1979).

In Dawson v. State, 640 S.W.2d 165, 166 (Mo.App.1982), the court stated its broader interpretation of Wheatley: “After appointment of counsel, the court must notify counsel and give an opportunity to be heard before summarily dismissing a motion under Rule 27.26.” In Dawson the court stated that the notice would have allowed the record to have been developed to permit review on the merits. See also Remington v. State, 654 S.W.2d 280 (Mo.App.1983).

In Lang v. State, 596 S.W.2d 739, 741 (Mo.App.1980), this court stated: “We will not extend the notice rule of Wheatley to require the court to notify counsel of any and all future actions it may take in disposing motions. Notice may be required only in instances where it would serve some purpose.” In Lang, the motion was determined not to have been dismissed for failure to state a claim. “Unless legal insufficiency, i.e., failure to state a claim, is the grounds for dismissal of defendant’s motion, notice to counsel that the court will deny the motion could serve no purpose.” Lang, 596 S.W.2d at 741. In the present case, one reason for the dismissal was the failure to plead facts instead of conclusions; so even under the narrower grounds of Lang, notice should have been given.

Further, in Lang the trial court specifically granted movant’s counsel a stated time in which to amend the motion. Implicit in that order was the indication that the court would rule on the motion after the time for amendment had passed. In the present case, there was no notice whatsoever from the trial court. There was no indication as to when it would be taken under submission.

In Ross v. State, 601 S.W.2d 672 (Mo.App.1980), the counsel had been appointed for the 27.26 movant, and counsel was given fifteen days to amend the 27.26 motion, which counsel did. Counsel was also notified when the motion would be taken under submission. The court held that Wheatley did not require notice of the trial court’s planned ruling: “There is nothing in Rule 27.26 requiring the trial court to advise in advance of its intended ruling on the motion or to permit ad infinitum amendments to a motion it finds lacking in entitlement for relief.” Ross, 601 S.W.2d at 677. Counsel for movant in Ross had wanted a chance to amend the motion a second time, if after having once amended the movant’s pro se motion, it still did not state a claim for relief. The court refused his request-since he had notice of the impending ruling when he was notified the motion would be taken under submission.

It is fundamental that before the motion in the present case could be dismissed, particularly dismissed with prejudice, counsel should have been made aware of the court’s intention to enter its order and been given an opportunity to be heard. The fact that movant had counsel at the time of the filing of his motion rather than later-appointed counsel is immaterial. The same rights to notice and hearing still apply-

The better procedure in a Rule 27.26 proceeding is for the trial court, after mov-ant has obtained either retained or appointed counsel, to give written notice of its intention to rule on a specific- date on the issue of whether an evidentiary hearing will be granted. The time period allotted should be commensurate with the time necessary for movant’s counsel to confer with his client and to amend the petition in a lawyer-like manner. Oral argument should be accorded to the parties if requested, consistent with local court rules. This would ensure an orderly procedure consistent with due process. See Wheatley v. State, 559 S.W.2d 526 (Mo. banc 1977).

In view of our holding, we decline to address movant’s second point.

Movant’s third point alleges error in the court’s denial of his motion for disqualification of the judge. The Rules of Civil Procedure apply to Rule 27.26 cases insofar as applicable. Rule 27.26(a). Thus, Rule 51.05(a) allowing a change of judge and Rule 51.05(d) restricting a party to one change as a matter of right, apply. Mov-ant here had already filed and had sustained an application for disqualification with regard to an earlier Rule 27.26 motion filed pro se. The present appeal stems from a Rule 27.26 motion filed by movant’s counsel.- Movant claims the motion filed by counsel should be treated as a new, separate action, because it raises new issues, and that consequently he is entitled to a new right of disqualification. We disagree.

A Rule 27.26 movant was limited to one disqualification of his multiple collateral attack motions in State v. Gray, 478 S.W.2d 654, 669 (Mo.1972). The court in Gray did not discuss what bearing the raising of new issues might have on its holding. In State ex rel. B_ C_ C_ v. Conley, 568 S.W.2d 605, 608 (Mo.App.1978), the court discussed the standard for allowing a new right of disqualification. The court stated that Brault v. Kyser, 562 S.W.2d 172, 174 (Mo.App.1978), “teaches that any judicial proceeding which raises ‘a new issue’ and which seeks ‘distinctly different relief’ from that which was previously before the court constitutes a ‘civil action’ as the term is used in Rule 51.05_ The consummate test appears to be rooted in basic and fundamental concepts of right and fairness.” (Emphasis added.) The court in Conley summarized the rules when it stated “the real test is whether it is the ‘kind of independent proceeding which does in fact adjudicate rights of individuals, irrespective of and not conditional upon what is provided in the original decree.’ ” Conley, 568 S.W.2d at 608.

In the present case, movant raises new issues not presented earlier but seeks the same relief under the same rule. We cannot find that this latter proceeding is “independent” of the earlier Rule 27.26 motion proceeding. Movant’s third point is denied.

The order of the trial court is reversed and the cause is remanded with directions to proceed in a manner not inconsistent with this opinion.

DOWD, P.J., and CRIST, J., concur.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Lori DONAHUE, Appellant.
    No. WD 35671.
    Missouri Court of Appeals, Western District.
    Nov. 13, 1984.
    James W. Fletcher, Public Defender, Lee M. Nation, Sp. Asst. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
    Before LOWENSTEIN, P.J., and SOM-ERVILLE and NUGENT, JJ.
   ORDER

PER CURIAM:

Appeal from conviction of two counts of first degree robbery pursuant to Section 569.020 RSMo 1978, and concurrent sentences of twelve years.

Judgment affirmed. Rule 30.25(b).


author: CLEMENS, Senior Judge.

text:
    Joseph PIAZZA, Plaintiff-Appellant, v. Lois (Piazza) BIELICKE, Respondent-Respondent.
    No. 47670.
    Missouri Court of Appeals, Eastern District, Division Six.
    Sept. 25, 1984.
    Motion for Rehearing and Transfer Denied Nov. 20, 1984.
    Gregg W. Keegan, St. Louis, for plaintiff-appellant.
    David Fischer, St. Louis, for respondent-respondent.
   CLEMENS, Senior Judge.

In this post-dissolution action respondent-wife got a $929.92 judgment against appellant husband. This $929.92 was the unpaid balance of medical charges arising from surgery and hospitalization of the parties’ eighteen-year-old daughter “Gigi.”

The parties’ marriage had been dissolved in 1973. The wife then carried a Blue Cross-Blue Shield hospitalization policy. Thereafter she remarried. Her new husband was an insurance agent and carried a medical policy with the Aetna Insurance Company, so wife cancelled the Blue Cross-Blue Shield policy and she and her children were added as beneficiaries in the Aetna policy.

After daughter “Gigi” was hospitalized Aetna paid $3,319 of her medical bills but not the now-in-issue $929.92 unpaid balance thereof. Father’s liability depends on the parties’ dissolution agreement made a part of the decree. We find it supports the $929.92 award to the mother.

Husband relies on paragraph 10 of the dissolution agreement, providing: •

“(Wife) agrees to maintain in full force and effect and to carry the three children of the marriage as beneficiaries and entitled to all benefits under (her) existing Blue Cross and Blue Shield hospitalization and medical insurance plan.”

But in his brief here the husband omits another part of their dissolution decree, paragraph 13. It provides:

“(Husband) further agrees to pay all said medical and dental bills of said minor children to be incurred in the future until the said minor children....”

In April of 1981 husband wrote counsel saying: “I am presently up to date on all medical expenses, part of which have been over $5,000 in dental work.” And, the following month husband wrote counsel saying that if his wife:

“does not have coverage with Blue Cross and Blue Shield in the State of Missouri, I will be happy to comply with the payment of the balance of the medical expenses covering my daughter, GiGi Piazza’s recent hospitalization.”

As shown, husband here relies solely on paragraph 10 of the parties’ agreement saying wife must maintain the parties’ original Blue Cross-Blue Shield policy. He ignores the above quoted paragraph 13 whereby he agreed to pay all the daughter’s future medical bills. Husband has confirmed this latter obligation in his quoted correspondence.

The husband’s contention here is refuted by the quoted record. It supports the trial court’s judgment that the wife recover from husband the challenged hospital bill.

The wife was the only witness to testify in this matter. At the conclusion of cross-examination by husband’s attorney, the trial judge asked her some questions concerning a purported release she had signed some four years earlier. The judge had noticed the release in the dissolution file which had been an exhibit. Husband now attempts to rely upon this release as a defense. This effort is in vain because he did not plead the release as an affirmative defense. Rule 55.08. “Unless it clearly appears that plaintiff tacitly agreed to join issues in such affirmative defenses,' consent to the trial of non-pleaded affirmative defenses should not be held to be implied.” Duncan v. Price, 620 S.W.2d 70, 71 (Mo.App.1981). No such tacit agreement appears from the fact that wife attempted to satisfy the curiosity of the trial judge regarding a document, the details of which she could not remember.

GAERTNER, P.J., and SNYDER, J., concur.


text:
    STATE of Missouri, Respondent, v. Bruce E. HARRIS, Appellant.
    No. WD 34999.
    Missouri Court of Appeals, Western District.
    Sept. 25, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Nov. 27, 1984.
    Application to Transfer Denied Jan. 15, 1985.
    James W. Fletcher, Public Defender, Sean D. O’Brien, Asst. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Deborah Neff, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, C.J., and MANFORD and KENNEDY, JJ.
   ORDER

PER CURIAM:

This is a direct appeal from a jury conviction of robbery, first degree, in violation of Section 569.020, RSMo 1978.

The judgment is affirmed. Rule 30.25(b).


author: CRIST, Judge.

text:
    STATE of Missouri, Respondent, v. George STACK, Appellant.
    No. 47921.
    Missouri Court of Appeals, Eastern District, Division Six.
    Oct. 9, 1984.
    Motion for Rehearing and Transfer Denied Nov. 20, 1984.
    Application to Transfer Denied Jan. 15, 1985.
    Dave Hemenway, Public Defender, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   CRIST, Judge.

Appeal from a jury conviction for first degree burglary, for which defendant was sentenced as a persistent offender to thirty years’ imprisonment. We affirm.

Defendant, in his sole point on appeal, challenges the sufficiency of the evidence to prove the requisite intent to commit a crime inside the subject premises. § 569.160.1, RSMo 1978. In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the state, granting the state the benefit of all inferences and disregarding defendant’s evidence except where it aids the state. State v. Applegate, 668 S.W.2d 624, 627 (Mo.App.1984). As the evidence relied upon is circumstantial, it must be internally consistent, and consistent with the hypothesis of defendant’s guilt, negating all reasonable hypotheses of innocence. State v. Robinson, 670 S.W.2d 541, 542 (Mo.App.1984).

The state’s evidence tended to show a neighbor observed a figure near the burglarized premises on February 1, 1983, at 6:30 p.m. Knowing the occupant of the house, an 83 year old widow, went to bed around 6:00 p.m., the neighbor called the police. The officers found the phone lines had been cut, and a fiberglass panel broken out of a sun-porch. A prybar was seen near the panel. The back door, which had been nailed shut, was pushed open. Noises from inside, sounding like someone knocking objects over, were heard, followed by an expletive expression. The police ordered the subjects to come out. They exited onto the porch, where one officer ordered them to lie on the ground. They complied with that order only after it was repeated by a second officer. The men were then arrested.

Inside the house, the police found, on separate sides of the entry way, an old pair of hose. Victim stated the hose was not hers. Mud had been tracked all over the house, which victim testified had not been there before she went to bed. Both men had mud on their shoes. A briefcase, discovered inside the house and identified as belonging to defendant’s companion, contained burglary tools and a roll of duct tape. One officer testified he smelled alcohol on defendant; however, both testified neither defendant nor his companion appeared to be drunk.

Defendant’s sole witness was his companion. He testified they knew each other from work, which had been cancelled that day because of rain. Their boss dropped them off at a lounge in Times Beach. On the way, the companion stopped at his house to pick up the briefcase “in case an opportunity arose.” While at the lounge, they drank. The companion drank four beers, and defendant had over a case of beer and almost a fifth of whiskey.

Upon leaving the bar, they hitchhiked to St. Louis, ending up in Kirkwood. The companion got tired of “carrying” defendant, whom he described as falling down, slobbering drunk, so he left defendant under a water tower and tried to go to a friend’s house. Instead, he broke into victim’s house, and then went to get defendant, because it had started to rain, and he was afraid defendant would wake up and wander off. They returned to the house, re-entered, and he left defendant sitting against a wall, while he prowled around the house. The police then came. The companion pleaded guilty to second degree burglary with another, a charge arising out of the events of that evening.

The state must prove defendant had the requisite intent to commit a crime inside the burglarized premises. § 569.160, RSMo 1978. Such proof, of necessity, is seldom direct; usually, intent is established circumstantially and inferentially. State v. Harness, 654 S.W.2d 297, 299 (Mo.App.1983).

In this case, the evidence shows forcible entry through a fiberglass panel (accomplished using a prybar) and the opening of a nailed-shut door. See State v. Washington, 484 S.W.2d 267, 269-70 (Mo. 1972). Defendant exited the house only under police compulsion, and only obeyed a clear, direct police command to lie down when confronted by a second officer. This shows active participation, not mere presence. He was associated with his accomplice, who admitted his part in the crime, during the entire day preceding the burglary. See State v. Ingram, 568 S.W.2d 562, 563 (Mo.App.1978). They carried burglary tools. Entry by two intruders is implied by the two stockings found in different locations, which victim testified were not hers. Their tracks were found all though the house. Finally, defendant’s claim of intoxication was refuted by the testimony of both officers. See State v. Scruggs, 551 S.W.2d 306, 309 (Mo.App.1977). The explanation offered at trial, which the jury certainly was free to disbelieve, State v. Tolson, 630 S.W.2d 611, 613 (Mo.App.1982), was implausible, and did not create a reasonable hypothesis of innocence. Nor can we create one. This combination of circumstances was sufficient to support the conviction.

Judgment affirmed.

REINHARD, C.J., and KAROHL, J., concur.