author: STEWART, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. John BARTEAU, Defendant-Appellant.
    No. 47126.
    Missouri Court of Appeals, Eastern District.
    Jan. 8, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 26, 1985.
    Application to Transfer Denied April 30, 1985.

      Michael J. Gorla, Clayton, for defendant-appellant.
    John Ashcroft, Atty. Gen., Carrie D. Francke, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   STEWART, Judge.

Defendant was convicted by a jury of assault in the first degree, a Class A felony. He was sentenced by the court as a prior offender to twenty years imprisonment. We affirm.

We review the facts in the light most favorable to the state. The victim who worked a night shift left work at about 2:00 a.m. and drove toward his home in his 1976 Camaro. As he exited Highway 270 onto New Halls Ferry Road, a maroon Lincoln Continental driven by defendant pulled up very close behind him. Defendant tailgated the victim as the victim proceeded on to Pershall Road. The victim pulled into the lane to the left to permit defendant to pass on his right. As defendant pulled alongside, the victim saw that defendant had a gun in his hand. When the victim saw the gun he slowed his car so that the defendant could get ahead of him.

The defendant got about 200 feet ahead of the victim and came to a stop sign where he waited even though there was no other traffic near the intersection. The victim was apprehensive and slowed as if to stop but as he got to the intersection he accelerated into the intersection and made a left turn. While making the turn he heard shots. Defendant engaged in rapid fire; that is he fired as fast as he could pull the trigger without setting up for his target. There were four or five shots fired. The victim stopped to check his car and saw the defendant’s car make a right turn and speed away. Another motorist stopped and told the victim that he heard a popping and saw fire from a gun muzzle come from the defendant’s car. When the victim went to call the police the witness left the scene without giving any identification and was never located. There were bullet holes in the taillight, the rear bumper and the muffler of the victim’s car.

The evidence on behalf of defendant came from a Mr. Klipp who had been a passenger in defendant’s car on the night of the shooting and a friend of defendant’s, both of whom testified that defendant was an excellent marksman.

Mr. Klipp also testified that the car of the victim had come upon them very swiftly from the rear with its bright lights on and swerved to the left and passed them, and that this car stayed in the left hand lane and made a left turn. Klipp, who was occupied in opening a can of beer with his hands outside the right window, turned to see defendant “blast a couple rounds out the window.” He could not see the target at which the defendant was aiming. The defendant was engaged in rapid fire, i.e., the shots were fired as fast as the trigger could be pulled. He also testified that he saw shots come from the victim’s car.

The trial court gave instructions on assault first degree, assault second degree and assault in the third degree. It also gave an instruction on self defense. The jury returned a verdict of guilty of assault in the first degree and he was sentenced by the court as a prior offender based upon a plea of guilty to carrying a concealed weapon § 558.016.2. The court in that case has suspended the imposition of sentence.

Defendant contends that the court erred in failing to give the instruction offered by him on assault in the third degree in lieu of the instruction on assault in the third degree that was given by the trial court and in so doing failed to submit his theory of the case.

The instruction given by the court reads as follows:

If you do not find the defendant guilty of assault in the first degree or assault in the second degree, you must consider whether he is guilty of assault in the third degree.
If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about June 17, 1982, in the County of St. Louis, State of Missouri, the defendant attempted to cause physical injury to Steve Hughes by shooting at him and his moving vehicle, and
Second, that the defendant did.not act in lawful self-defense, as submitted in Instruction No. 9, then you will find the defendant guilty of assault in the third degree.
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 instruction offered by defendant reads as follows:

If you do not find the Defendant guilty of assault in the second degree, you must consider whether he is guilty of assault in the third degree.
If you find and believe from the evidence beyond a reasonable doubt:
That on the 17th day of June, 1982, in the County of St. Louis, State of Missouri, the Defendant recklessly created a grave risk of death to Steve Hughes by shooting at his motor vehicle, then you will find the Defendant guilty of assault in the third degree.
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.

As defendant argues, he was entitled to an instruction on assault in the third degree, an included offense of assault in the first degree. As defined in § 556.046.1(1), an included offense is one “established by proof of the same or less than all the facts required to establish the commission of the offense charged.” There must be “a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.” § 556.046.2.

It was apparently defendant’s theory, aside from self defense, that in shooting at the moving car with the victim in it, he did not intend to “kill or cause serious physical injury to the [victim],” as required in the instruction with respect to assault in the first degree. The instruction given by the court on assault in the third degree required only that defendant attempted to do “physical harm” to the victim. It required a showing that one of the essential elements of the crime charged was lacking for there to be a conviction on the lesser included offense. See State v. Wiggins, 640 S.W.2d 161, 162 (Mo.App.1982). The instruction was in the form provided by MAI CR, 19.06.1, contains facts supported by the evidence that are necessary to a finding of guilty on the lesser charge.

In the argument portion of the brief, defendant states, “The defendant’s theory of the case was that, in an attempt to scare or frighten Mr. Hughes, defendant fired shots into the rear of Mr. Hughes’ automobile.” In other words, his theory was that he lacked specific intent to cause physical injury to the victim. The instruction offered by defendant does not cure this defect. If defendant had desired to submit that theory he was required to submit a converse instruction on that issue. See Missouri Bar Committee Comments on Missouri Approved Criminal Instruction, Assault, p. 11, and State v. Chevlin, 284 S.W.2d 563 (Mo.1955). We also note that the instruction offered by defendant is erroneous in that it fails to require a finding that defendant did not act in self defense.

The trial court properly refused the instruction offered by defendant.

Defendant’s second point combines two related issues. He contends that the trial court erred in refusing to “quash” the testimony of the victim because the state failed to carry its burden of showing that a hypnotic session with the victim was not impermissibly suggestive and did not contaminate his testimony. He also contends that the court abused its discretion in failing to grant a continuance to permit him to investigate the circumstance under which the hypnotic session was held.

Defendant’s counsel was notified four days before trial that the victim had undergone a hypnotic session. On the day of trial she filed a motion to “quash” the testimony of the victim. At the hearing on the motion counsel for the state told the court that the hypnosis was conducted for the purpose of determining whether the victim could recall anything that would lead to the identity of the witness who had spoken to him after the shooting as well'as any other details of the incident, because this information was potentially useful in relation to another crime. The state also advised the court that the detective who witnessed the hypnosis was available to the defendant. Counsel of defendant, from a tactical point of view, declined to pursue the matter further taking the position that the state was required to show that the hypnosis had not tainted the testimony. The trial court denied the motion.

In the trial the victim testified with respect to the shooting incident and identified defendant as the person who did the shooting. He also testified that he had identified defendant from among five photographs on June 22, 1982, five days after the incident. On cross-examination the victim testified that he was hypnotized on July 8, 1982, but that he testified to facts he remembered and not some suggestion made during hypnosis.

Detective Ventimiglia testified that the victim identified defendant by photograph and gave a statement about the shooting incident before defendant was arrested on July 1, 1982; that he was present when the victim was being questioned during hypnosis and during that session the victim did not say anything inconsistent with what he told the detective before and added nothing to that information.

The defendant made no objection to the testimony of the victim during the trial. There was nothing preserved for our review.

No error was committed by the trial court in any case. The evidence in this case clearly demonstrated that the testimony of the victim was not tainted by any suggestions of the police or Dr. Lum who had hypnotized the victim. The victim had identified the defendant and given a statement more than two weeks before the hypnosis. His testimony contained nothing more as a result of hypnosis. The trial court did not err in permitting the victim to testify. State v. Little, 674 S.W.2d 541, 544 (Mo. banc 1984).

As to the request for a continuance we must rely upon the sound discretion of the trial court and we will not intervene unless there has been a blatant abuse of discretion. State v. Williams, 652 S.W.2d 102, 108 (Mo. banc 1983). In this case defendant has failed to demonstrate that he has been prejudiced by the action of the trial court.

Defendant’s final point is the trial court erred in finding that he was a prior offender under § 558.016.2, RSMo Supp.1983, the consequence of which was to remove the sentencing from the jury and requiring the court to sentence him. He argues that at the time he entered his plea § 558.016 RSMo Supp.1980 was in effect and did not contain a provision for sentencing of a pri- or offender by the court rather than the jury. Defendant contends that § 558.016.2 RSMo Supp.1983 is an ex post facto law and violative of Art. I § 13 Constitution of Missouri.

The issue raised here has been effectively ruled adversely to defendant’s contention by State v. Acton, 665 S.W.2d 618 (Mo. banc 1984) and State v. LaPlant, 673 S.W.2d 782 (Mo. banc 1984). It needs no further exposition here.

The judgment is affirmed.

SIMON, P.J., and STEPHAN; J., concur.


source: Caselaw Access Project

author: WILLIAM F. MAUER, Special Judge.

license: Public Domain

text:
    Edward C. CARTER, Movant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 47804.
    Missouri Court of Appeals, Eastern District, Division Seven.
    Jan. 15, 1985.
    Motion For Rehearing and/or Transfer to Supreme Court Denied Feb. 28, 1985.
    Application to Transfer Denied April 30, 1985.
    David S. Hemengway, Asst. Public Defender, St. Louis, for movant-appellant.

      John Munson Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   WILLIAM F. MAUER, Special Judge.

Appellant appeals from the denial of post-conviction relief sought pursuant to his second Rule 27.26 motion.

Charged with receiving stolen property in two separate cases, appellant entered Alford pleas on December 14,1981. Appellant was sentenced, pursuant to a plea bargain agreement, to concurrent terms of six years imprisonment on February 16, 1982.

Seeking to vacate the judgment and sentence, appellant filed his first Rule 27.26 motion claiming he was the victim of an illegal search, that he did not receive a receipt for the property seized, that he was unlawfully detained and that he was denied effective assistance of counsel. Counsel was appointed to represent him and the motion was dismissed without an evidentia-ry hearing on November 4, 1982 because the motion did not allege that the guilty plea was not knowing and voluntary or that there was a fatal defect on the pleadings.

Subsequently, appellant filed a second Rule 27.26 motion which was twice amended by counsel and supplemented pro se. The grounds raised by the appellant included:

1. That the trial court did not make a determination that there was a factual basis for the pleas;
2. That appellant was not informed of the maximum punishment available or that at trial, a jury would do the sentencing;
3. That appellant received ineffective assistance of counsel in that: a. His lawyer failed to interview certain witnesses despite his request to do so; b. His lawyer erroneously advised him that there was overwhelming evidence of his guilt when the evidence was not sufficient to warrant a conviction.

In his second 27.26 motion, appellant acknowledged that he had previously filed a motion to vacate sentence and that a special assistant public defender was appointed to represent him. However, according to appellant, the public defender never did anything about the case except to visit him. Appellant alleges that:

1. The infirmities and illegalities of his convictions and sentence would have been obvious to any attorney of reasonable competence and diligence;
2. That the failure of the public defender to amend the pleadings left appellant abandoned by counsel;
3. Because appellant was not learned in the law, he was deprived of his opportunity to present his claims.

On August 18, 1983, an evidentiary hearing on the second 27.26 motion was held before the Honorable Ninian M. Edwards. The trial court entered findings of fact and conclusions of law and a judgment, denying appellant’s second 27.26 motion on August 22, 1983. Appellant subsequently filed this appeal.

We hold that the trial court was not obligated to entertain appellant’s second 27.26 motion and affirm appellant’s conviction and sentence.

Rule 27.26(d) provides:

The sentencing court shall not entertain a second or successive motion for relief on behalf of the prisoner where the ground presented in the subsequent application was raised and determined adversely to the applicant on the prior application or where the ground presented is new but could have been raised in the prior motion pursuant to the provisions of subsection (c) of this Rule. The burden shall be on the prisoner to establish that any new ground raised in a second motion could not have been raised by him in the prior motion.

According to appellant, his second 27.26 motion raised grounds not addressed in his first 27.26 motion, specifically ineffective assistance of counsel in handling the first 27.26 motion and his own lack of legal knowledge. Appellant has not met the requisite burden of Rule 27.26(d). A claim of ineffective assistance of counsel in a previous 27.26 motion does not constitute grounds for relief in a successive 27.26 motion. Wright v. State, 614 S.W.2d 325, 327 (Mo.App.1981); Burnside v. State, 600 S.W.2d 157, 158 (Mo.App.1980); and Neal v. State, 569 S.W.2d 388, 390 (Mo.App.1978). The policy supporting this rule was recently reiterated by the Missouri Supreme Court in Brauch v. State, 653 S.W.2d 380, 381 (Mo. banc 1983) quoting from Williams v. State, 507 S.W.2d 664, 666 (Mo.App.1974).

Were a prisoner permitted to challenge the effectiveness of his legal counsel at the first 27.26 hearing by means of filing a second 27.26, then he could likewise challenge his representation at a second hearing by filing a third 27.26, and so on ad infinitum. That patent absurdity would intolerably clutter the courts and would reduce the whole legal process to ridicule. The rule in Missouri avoids that result by declaring that proceedings under Rule 27.26 must be directed to defects which led to the original sentencing. (citations omitted)

Likewise, appellant’s lack of legal expertise fails to justify his failure to raise the aforesaid issues in his first 27.26 motion. Lack of legal knowledge has been repudiated as a cognizable excuse for not raising an ostensibly new ground in a prior Rule 27.26 motion. Wright v. State, 614 S.W.2d at 327; Burnside v. State, 600 S.W.2d at 158.

The judgment of the trial court is hereby affirmed.

KAROHL, P.J., and DONALD E. DALTON, Special Judge, concur.


author: CRIST, Judge.

text:
    William H. JONES, D.D.S., Appellant, v. The MISSOURI DENTAL BOARD, Respondent.
    No. 48396.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 15, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 26, 1985.
    Application to Transfer Denied April 30, 1985.

      Mark G. Arnold, Harry B. Wilson, Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
   CRIST, Judge.

Appeal from a decision of the Circuit Court affirming the suspension of Dr. William H. Jones’s (dentist) license to practice dentistry for six months.

After a hearing held on a complaint by the Missouri Dental Board (Board), the Administrative Hearing Commission (AHC),' on March 23,1983, found dentist had violated § 332.321. l(2)(d), (e), & (f) RSMo 1978, by employing, assisting and enabling dental assistants to perform certain procedures constituting the practice of dentistry, and therefore cause existed to impose discipline upon dentist. On May 10, 1983, the board suspended dentist’s license for six months and placed him on probation for five years thereafter. On January 23, 1984, the orders of the AHC and board were affirmed by the circuit court. We modify the effective date of the disciplinary order, and affirm as modified.

Dentist asserts the major issue is witness credibility. He concedes if the direct testimony of the dental board’s three principle witnesses is reliable in light of the whole record, the evidence is sufficient. In his reply brief, dentist states the principle issue in this case is whether Board’s witnesses told the truth or whether dentist’s witnesses told the truth. Dentist’s Point Relied On I must be denied because our reading of the transcript and the briefs convinces us the credibility issue in this case was for the AHC. Citizens for Rural Preservation v. Robinett, 648 S.W.2d 117, 127 (Mo.App.1982). This is not one of those rare cases where the reviewing court will examine the credibility of the witnesses. See Central Bank of Clayton v. State Banking Bd. of Mo., 509 S.W.2d 175, 189-90 (Mo.App.1974). Compare Barnes Hospital v. Mo. Com’n on Human Rights, 661 S.W.2d 534, 537-38 (Mo. banc 1983).

Dentist also claims the AHC erred in limiting discovery and failing to admit evidence presented in offers of proof. Dentist, who is black, pleaded as an affirmative defense, selective prosecution by the board (the prosecutor in this case) based upon racial discrimination.

The AHC limited dentist’s discovery by quashing a subpoena calling for the production of tape recordings, agenda and minutes of closed board meetings when dentist’s case was discussed. We hold, for reasons set forth below, dentist was not entitled to this discovery.

Much of dentist’s evidence on this claim was not admitted into evidence by the AHC, but is available on the record in offers of proof. There is no error in the AHC’s findings relating to the defense of selective prosecution, whether the point is considered with the evidence contained in dentist’s offers, or without it. We consider the claim utilizing the evidence in dentist’s offers of proof as if admitted by the AHC.

Improperly selective prosecution involves the use of improper criteria to choose targets for prosecution. One seeking to rely on such defense must make a sufficient showing to raise the claim above frivolity. U.S. v. Catlett, 584 F.2d 864, 866 (8th Cir.1978). Dentist needed to allege facts sufficient to establish two elements: (1) others were situated similarly to dentist but were not prosecuted, and (2) the selection of dentist as a prosecution target was invidious or in bad faith, based upon considerations such as race, religion, or a desire to prevent the exercise of constitutional rights. State v. Camillo, 610 S.W.2d 116, 120 (Mo.App.1980).

Dentist claims the evidence establishes six indicia of the board’s misconduct. First, he claims the board “had reason to resent” his activism in promoting affirmative action at the Missouri Dental Service, a non-profit, dentist-sponsored insurance group. This claim is based on two items; (1) after dentist complained about the lack of black people working for the service, the service started to send complaints about dentist to the board, and (2) a single member of board was also a member of the board of the service. We fail to see how receipt of complaints against dentist would give the board reason to resent him. Dentist also failed to allege any actual “resentment” by any board member, including the one also on the board of the service.

Second, dentist points to deposition testimony by an attorney in charge of welfare fraud investigations that all professional boards are lax in enforcement, that board attached “great significancy” to the case, and that he was surprised at the commencement of litigation here because the charges seemed routine. It is clear from the content of the deposition these statements were all opinions of the deponent. Assuming they are true, they provide, at best, weak support of only the one element of some selectivity in prosecution.

Third, dentist complains of racially derogatory statements during board meetings. This is based on a misreading of the record, where one board member deposed he had at some time heard racial jokes.

Dentist’s fourth point is the board discussed continuation of the prosecution directly after a discussion of a perceived threat of a civil suit against board members personally by dentist. We fail to see, and dentist has not provided, any connection of this discussion of the continuation of the suit with the earlier commencement of the proceedings.

Fifth, dentist complains the vagueness of the regulation gave the board the opportunity to act discriminatorily. While this may be true, it is not an element of the prima facie case. Camillo, 610 S.W.2d at 120.

Dentist finally alleges the board placed an importance on this case inexplicable except for ulterior motives. He attacks the commencement of the board’s investigation without an affidavit, as he claims was required by § 332.341.3 RSMo 1978 (later amended, see § 332.341 RSMo Supp.1984). He claims the board’s investigator helped witnesses with their stories, the board went to welfare fraud investigators for help, investigated dentist’s private life, tried to change attorneys and attempted to give immunity to the witnesses. However, the board could commence an investigation without receiving a sworn affidavit (§ 332.-341.5, RSMo 1978) or upon receipt of a defective complaint (§ 332.341.2 RSMo 1978). There is no evidence the board investigator fabricated the story or that he did anything other than investigate. We see no misconduct in board co-operation with other state agencies, nor do we see an inordinate investigation into dentist’s private life. The board’s attempt to change attorneys was based on dissatisfaction with the representation provided by the office of the attorney general. There is no record support for any notion the board wanted to grant any witness immunity: the term was used by dentist’s attorney during a deposition of a board member, and the context of the testimony involved was a complaint against the board’s attorney for not objecting to deposition questions.

In short, dentist’s grounds for charging this case was inexplicably important to the board do not exist. However, even if they did, it would only go to prove some ulterior motive for prosecution. No light is shed as to the identity or propriety of the motive. Dentist did not establish either element of a prima facie case of selective prosecution. Camillo, 610 S.W.2d at 120.

What has been said also disposes of dentist's claim he should have been granted access to the board’s minutes and tapes. In order to gain discovery of that material, dentist had to establish a colorable basis for his claim. Camillo, 610 S.W.2d at 121; Catlett, 584 F.2d at 866, 868. Dentist did not allege. either selectivity or improper motive as grounds for his right to such discovery. His claim, detailed above, did not show either. Therefore, he was not entitled to the discovery he sought. Camillo, supra; Catlett, supra at 868.

The order of the Missouri Dental Board is amended to provide the suspension of six months shall commence thirty days after issuance of a mandate in this case, in lieu of the June 15, 1983 commencement date in the order. As modified, the decision is affirmed.

DOWD, P.J., and CRANDALL, J., concur.


author: NUGENT, Judge.

text:
    Warren BURK, Appellant, v. The ANN W. JONES CO., INC., and Ann W. Jones, Respondents.
    No. WD 34730.
    Missouri Court of Appeals, Western District.
    Jan. 22, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied March 5, 1985.
    Application to Transfer Denied April 30, 1985.

      Werner A. Moentmann, Richmond, for appellant.
    Ronald S. Reed, Jr. (argued), Richard A. Heider, St. Joseph, for respondents.
    Before LOWENSTEIN, P.J., and SOM-ERVILLE and NUGENT, JJ.
   NUGENT, Judge.

Warren Burk sued to quiet title in a piece of island property located in the Missouri River in Carroll County. Mr. Burk’s claim is based on a 1906 deed of trust by which his grandfather, Oliver K. Warren, conveyed the land in trust to Mr. Burk’s mother, Elsie Burk, nee Warren. He contends that certain language in the deed caused his mother to take only a life estate with the remainder in fee going to Mr. Burk upon her death. Defendants, Ann W. Jones Co., Inc., and Ann W. Jones, claim title based upon conveyances by Oliver Warren and Elsie Warren Burk of their interests in the property to their predecessor in title. Defendants have been in possession of the property since 1935. The trial court held that the 1906 deed of trust conveyed to Elsie Warren Burk an estate in fee simple and entered judgment in favor of defendants. We affirm.

At the time of the 1906 conveyance Elsie was six years old. The deed in pertinent part provides as follows:

DEED IN TRUST
THIS CONVEYANCE, made on this 11th day of January, 1906, by and between Oliver K. Warren, of the County of Craighead and State of Arkansas, party of the First Part, and George D. Warren, trustee, of the County of Carroll and State of Missouri, party of the Second Part, WITNESSETH:
That the said party of the First Part, for and in consideration of the sum of One Dollar ($1.00), to him in hand paid by the said party of the Second Part, and the beneficiary hereinafter named, the receipt of which is hereby acknowledged, does by these presents give, grant and sell, transfer, convey and assign, unto said Second Party, or to his successors in trust, the following tracts and parcels of land, to-wit: — ...
With all rights, privileges, and appurtenances thereto belonging, or in any wise appertaining unto the said Second Party, or his successors in trust; in trust, however, for the sole, separate use, benefit and behoof of my daughter, Elsie Warren, ... When the said Elsie Warren shall have reached the age of twenty-one (21) years, the absolute title to the land above described shall vest in her and the heirs of her body, and the said Second Party, or his successors in trust, shall make, execute and deliver to said beneficiary herein a good and sufficient deed, conveying the land above described, in default of which the fee simple title shall ipso facto immediately vest in said Elsie Warren and the heirs of her body.
The chief purpose of this conveyance is to substantially provide for my child, Elsie Warren, by divesting myself of the title to the land above described, and vesting same in George D. Warren as trustee for said Elsie Warren, and nothing herein contained shall be construed to vest any right, title or interest in and to said premises in said George D. Warren, only as trustee for the uses and purposes herein expressed.
The said trustee and beneficiary herein shall take and hold the premises free and clear from any liens, debts, obligations or incumbrances of any kind or character, done or suffered by said First Party, and the said First Party hereby covenants and agrees to warrant and defend the title to said real estate against the lawful claims of all persons whomsoever to the said party of the Second Part, and to the beneficiary herein, their heirs and assigns ....

Plaintiff asserts that the language in the granting clause of the deed providing that “when the said Elsie Warren shall have reached the age of twenty-one (21) years the absolute title to the land above shall vest in her and the heirs of her body” conveyed to Elsie a life estate in the property with a remainder in fee simple going to the heirs of her body in accordance with § 442.470. Elsie Warren Burk died in 1977, and Mr. Burk is her only bodily heir.

In 1934 and 1935, Elsie Warren Burk and Oliver Warren by their respective quitclaim deeds conveyed their interests in the property to the defendants’ predecessor in title. Plaintiff argues that the only interest ultimately conveyed to the defendants was Elsie Warren Burk’s life estate and that upon her death the fee simple remainder passed to her son, plaintiff Burk.

Count I of plaintiff Burk’s petition seeks to quiet title in him, and Count II is an action for ejectment and damages. The jury returned a verdict in favor of defendants on the second count, and plaintiff does not appeal from the judgment on that count. Count I was tried to the court, and the judge found in favor of defendants on the ground that the 1906 deed, construed as a whole, conveyed fee simple title to Elsie Warren when she reached the age of twenty-one.

Plaintiff’s point on appeal is that the court erred in construing the deed of trust as ultimately conveying an estate in fee simple to his mother. He argues that a positive rule of law which existed in 1906 and which is still effective today, dictates that the language “heirs of her body” in the 1906 deed in trust created a life estate in her and a remainder in fee simple in her heir, Mr. Burk. Plaintiff argues that this “positive rule of law” controls in spite of any contrary intention of the grantor. He further argues that the granting clause of the deed containing the above language prevails over other clauses which are repugnant to and in conflict with the granting clause.

In a case tried to the court, the scope of our review is set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.1976) (en bane). We hold that the trial court correctly declared and applied the law in construing the 1906 deed at issue.

The trial court correctly stated in its findings that, if the language in the deed in trust relied upon by plaintiff to establish his claim was the only language in the deed referring to the type of estate created, then judgment would have to be entered in favor of plaintiff. But the court went on to construe the document as a whole, finding that the grantor’s intent was ultimately to convey fee simple title to his daughter.

Mr. Burk believes the court was incorrect because, he says, where a controlling positive rule of law is applicable to a deed, it controls even in the face of a contrary intent of the grantor. That formulation, however, is not the precise rule to be applied in the circumstances before us.

The words “heirs of the body” have acquired a definite meaning that will prevail unless an intention to the contrary appears in the instrument. Tucker v. Holder, 359 Mo. 1039, 225 S.W.2d 123, 125 (1949); Owen v. Trail, 302 Mo. 292, 258 S.W. 699, 701 (1924) (en banc). In construing a deed, the court’s major task is to find the grantor’s intent within the four corners of the instrument. Knox College v. Jones Store Co., 406 S.W.2d 675, 679-80 (Mo.1966); Leeper v. Leeper, 347 Mo. 442, 147 S.W.2d 660, 662 (1941). The grantor’s intent may be found anywhere in the document, and it will be enforced no matter where it may appear. Id. Finally, the court will disregard technicalities and treat all uncertainties in the instrument as ambiguities to be resolved by resort to the grantor’s intent as found in the deed itself, to circumstances leading up to and surrounding its execution, “and the subject matter and the situation of the parties as of that time.” Id. Here the issue is whether the grantor’s intent was clearly contrary to the meaning the plaintiff ascribes to the language “heirs of her body.” Does the instrument reveal an intent to convey fee simple title to Elsie Warren contrary to the meaning ordinarily ascribed to that language?

After examining the entire instrument, we agree with the trial court that Oliver Warren intended to convey to Elsie Warren fee simple title upon her reaching the age of twenty-one.

The words “heirs of her body” first appear in the granting clause of the instrument. Immediately following that language, the same clause reads:

aiid said Second Party [the trustee], or his successors in trust, shall make, execute and deliver to said beneficiary herein a good and sufficient deed, conveying the land above described, in default of which the fee simple title shall ipso facto immediately vest in said Elsie Warren and the heirs of her body.

That sentence evidences an intent to convey fee simple title to Elsie Warren in that if the trustee had defaulted in his duty to convey the property to Elsie, fee simple title was to vest ipso facto in Elsie and the heirs of her body. The deed does not say that a life estate will vest in Elsie; it says that fee simple title will vest in her. In the latter sentence also the scrivener used the expression “heirs of her body,” but the context of the whole deed leads us to conclude that he believed that “heirs of her body” was language necessary to convey the fee simple title to Elsie. (Section 442.-470 and its predecessors were not intended to penalize for the conveyancing errors of inartful scriveners.)

The instrument further provides that the “chief purpose” of the conveyance was “to substantially provide” for the grantor’s daughter, Elsie Warren. Nowhere in the instrument does the grantor state that he wishes to provide for the children or future heirs of his daughter. Perhaps his reason for doing so was that Elsie was six years old at the time of the conveyance and obviously had no offspring. But we may logically assume that if the grantor intended to provide for his daughter’s offspring by conveying to them the property in fee simple upon her death, he would not have said only that the “chief purpose” of the conveyance was to provide for his child Elsie without mention of anyone else. As we have already noted, the grantor’s intent controls in construing a deed in such circumstances. Tucker v. Holder, supra; Owen v. Trail, supra.

The warranty clause of the deed adds a bit of confusion by providing that the grantor will defend the title against the claims of all persons “whomsoever to the said party of the Second Part [trustee], and the beneficiary herein, their heirs and assigns.” At that point the instrument does not mention “heirs of her body” but refers to “heirs and assigns.” The warranty provision does recite “their heirs”, which in that context must be construed to mean that the grantor was warranting to defend claims against both the trustee and the beneficiary.

In Tennison v. Walker, 190 S.W. 9, 12-13 (Mo.1916), the court described the words “heirs and assigns” as “most apt words to convey a fee.” Although Tennison is distinguishable in that the grantee was a purchaser and not a donee, nevertheless, it supports the conclusion that Mr. Warren intended to convey the fee to his daughter, particularly in that it holds that the grant- or’s use of the words “her bodily heirs and assigns” indicates that the grantee had the power to dispose of the land during her life. The use of the word “assigns” presupposes that the grantor contemplated that the grantee and her heirs might transfer the land to another, otherwise the word would have no meaning whatsoever. Id. at 12.

Less significantly, the deed in four places uses the singular “beneficiary” rather than the plural “beneficiaries.” One may reasonably assume that a grantor intending to provide for both his daughter and her heirs would use the plural. The defendants argue that Elsie was only six at the time of the deed and had no “heirs of the body”, but a grantor who wanted to provide for such heirs in all likelihood would use the plural, whether or not the offspring were in existence at the time. In Adams v. Cary, 226 S.W. 833, 834 (Mo.1920), the Supreme Court found that the use of the singular throughout a deed in which the term “heirs of the body” was used evidenced the grantor's intent to convey a fee and not a life estate. The Cary court also found it significant that the warranty clause of the instrument referred to “heirs and assigns.” As we have already observed, the deed at issue here contains similar language.

The plaintiff also argues that the court erred in finding the trust deed to be ambiguous. His argument is easily refuted since the language in the document lends itself to two different meanings. But we do not rest our decision on a finding that the 1906 deed is ambiguous. Like the trial court, we are only examining the contents of the document itself without resort to an examination of surrounding circumstances.

Plaintiff’s final argument is that the granting clause prevails over subsequent conflicting and repugnant clauses. He argues that the other clauses in the instrument are inconsistent with the use of the language “heirs of her body” in the granting clause. He principally relies upon Petty v. Griffith, 165 S.W.2d 412 (Mo.1948), as authority for this point. The rule set out at 415 in Petty is as follows:

If repugnancy or irreconcilable conflict exists, of course, the clause in which estates are usually defined and granted would prevail over a subsequently conflicting clause. But, as the case is with the grantees so is it as to repugnancy in other respects, even if various clauses do conflict, yet if the intention of the parties may be gathered from the whole instrument, rather than from particular, segregated clauses, that intention will prevail and be given effect if possible and if it is not contrary to some positive rule of law....

The rule requires that the granting clause prevail over other clauses in a deed where they irreconcilably conflict with or are repugnant to the provisions of the granting clause. But where two clauses are merely inconsistent, as they are here, the paramount rule is to give effect to the intention of the parties as gleaned from an examination of the whole instrument. The granting clause prevails over other conflicting clauses only when the intention of the parties cannot be ascertained from an examination of the entire instrument. Pike v. Menz, 218 S.W.2d 575, 578 (Mo.1949). In examining the entire instrument here, we have already found that the grantor’s intention was to convey fee simple title to Elsie Warren.

For the foregoing reasons, the judgment of the trial court is affirmed.

All concur.

      . Unless otherwise indicated, all sectional references are to Revised Statutes of Missouri, 1978, as amended.
      § 442.470 provides:
      In cases where, by the common or statute law of England, any person might become seized in fee tail of any lands, by virtue of any devise, gift, grant or other conveyance, or by any other means whatsoever, such person, instead of being seized thereof in fee tail, shall be deemed and adjudged to be, and shall become, seized thereof for his natural life only; and the remainder shall pass in fee simple absolute to the person to whom the estate tail would, on the death of the first grantee, devise or donee in tail, first pass according to the course of the common law, by virtue of such devise, gift, grant or conveyance.
      An earlier version of this statute was in effect in 1906. § 4592, Revised Statutes of Missouri, 1899.


author: PRITCHARD, Presiding Judge.

text:
    Betty WINTZ, Respondent, v. HYATT HOTELS CORPORATION, Crown Center Redevelopment Corporation, Hallmark Cards Incorporated, Hyatt Corporation, Concordia Project Management, Ltd., Patty Berkebile Nelson Duncan Monroe Lefebvre Architects Planners, Inc., Eldridge & Son Construction Company, Inc., Gillum-Collaco Consulting Structural Engineers, Inc., and Havens Steel Company, Appellants.
    No. WD 35393.
    Missouri Court of Appeals, Western District.
    Jan. 22, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied March 5, 1985.
    Application to Transfer Denied April 30, 1985.

      Michael Waldeck and Stephen S. Brown, Kansas City, for appellants; Niewald, Wal-deck, Norris & Brown, Kansas City, of counsel.
    Robert Driscoll, Terence J. Thum and Catherine M. Hauber, Kansas City, for appellants; Stinson, Mag & Fizzell, Kansas City, of counsel.
    Lantz Welch and Timothy L. Brake, Kansas City, for respondent.
    Before PRITCHARD, P.J., and SOMER-VILLE and KENNEDY, JJ.
   PRITCHARD, Presiding Judge.

Respondent was injured by the collapse of the skywalks at the Hyatt Regency Hotel, where, on the evening of July 17, 1981, she was attending a popular tea dance with her husband. Respondent was awarded a verdict of $1,500,000, for which judgment was entered. Her husband, Francis E. Wintz, was awarded $500,000 for his loss of respondent’s consortium, but he declined to accept a remittitur of $400,000, and a new trial was alternatively ordered in his case. [It is said in respondent’s brief that Mr. Wintz’s case was retried and the verdict was paid.]

By Point I, appellants contend that the trial court erred in refusing to grant their motion for a change of venue, because the pervasive pre-trial publicity on the skywalk incident prejudiced the residents of Jackson County against them. Respondent counters that the motion was not timely filed. The legal file shows that on May 3, 1983, the trial was scheduled to commence on July 11, 1983, with a jury in Division 2 as the number three case. Appellants’ motion for change of venue was filed July 6, 1983. Respondent raised the issue of the timeliness of the motion by Point I of her brief. Although in their reply brief, appellants say that the issue of timeliness was waived by respondent’s failure to respond to the motion, the supplemental brief, allowed to be filed herein, shows that she did on July 7, 1983, specifically raise the issue of timeliness under Rule 51.04. There was thus no waiver. Rule 51.04 requires that an “application for change of venue must be filed at least thirty days before the trial date or within five days after a trial date is fixed, whichever date is later.” Note State ex rel. Missouri Highway Transportation v. Johnson, 658 S.W.2d 900, 903 (Mo.App.1983), where a petition for change of venue was held properly denied where the trial had already begun by the selection of a jury, the court noting that cases relied upon by the commission were decided before the present Supreme Court rules which impose specific time periods for the filing of such petitions. See Land Clearance for Redevelopment Authority v. Zitko, 386 S.W.2d 69, 77[5] (Mo. banc 1964), where although the sufficiency of the application to change venue was not ruled upon its timeliness, the court said, “The right to a change of venue including disqualification of a judge on the ground that he is biased and prejudiced is a statutory privilege, and strict compliance with the statute and the rules of this court is essential to the sufficiency of the application. (Citing cases.)” It is also there said, quoting George L. Cousins Contracting Co. v. Acer Realty Co., 110 S.W.2d 885, 888 (Mo.App.1937), “ ‘The courts hold that to entitle a party to a change of venue a strict compliance with the statute is essential. This is so doubtless because from the very nature of the remedy it is easily liable to serious abuses.’ ” Note also State ex rel. Smith v. Journey, 533 S.W.2d 589, 591[1] (Mo. banc 1976), holding that Rules 51.04, 51.05 and 51.06, “are of a piece; of the same matter or subject. Being pari mate-ria, they must be considered and construed with reference to each other.” And in that connection, see McKenzie v. McKenzie, 646 S.W.2d 897, 899 (Mo.App.1983), holding in construing Rule 51.05 (being in pari mate-ria with Rule 51.04 under the Smith case, supra) that a motion for change of judge made after the evidence was heard on the conscionability of a property settlement agreement and the matter was taken under advisement, was untimely. See also, In re Marriage of Frankel, 550 S.W.2d 896 (Mo.App.1977), holding that an application for change of judge filed on the day of hearing was not timely under Rule 51.05, “strict compliance with the provisions of the rule is essential.” In this case, at least 30 days before the trial date would have required the motion to have been filed before June 10, 1983 as the later date; or within five days after the trial date was fixed, would have been about May 9, 1983. Appellants have complied with neither of said dates, and their first point must not therefore be further noticed, and it is overruled.

By Point Y, appellants contend that the trial court erred in failing to grant their request for continuance after respondent introduced an x-ray taken on March 23, 1979, showing an elevation (i.e., no compression fracture) of her T-12 vertebra, while x-rays taken after the skywalk incident showed that she suffered a compression fracture of that vertebra. Appellants claim, and the evidence tends to show that the x-ray with the notation on the medical chart (Plaintiff’s Exhibit 21), that it was taken on March 23,1979, was not furnished to their counsel, and that x-ray was a surprise to them. The testimony of Dr. Leslie Wiscombe, who was respondent’s physician long before the skywalk incident, supports appellants’ contention that they were not supplied the March 23, 1979, x-ray (Plaintiff’s Exhibit 30) prior to that time. Sometime in April, 1983, he supplied appellants with respondent’s medical records, which did not include the x-rays, or his notation on the medical chart that one was taken on March 23, 1979, with the notation “AP and L Lumbar negative” on the chart under the date of March 23, 1979. What prompted Dr. Wiscombe to make the addition to his records was a call from Mrs. Wintz asking for her x-rays. At that time he had his girl go back through the x-ray file and she subsequently found a set of x-rays. Dr. Wiscombe promptly put them on the view-box, and made the notation on the chart. He testified that he gave the x-rays he found to Mrs. Wintz. The chart notations were made after Dr. Wiscombe’s receipt of the letter of appellants’ counsel requesting copies of his medical records, and he did not notify appellants’ counsel of the addition to his records.

Orthopedic surgeon, Brian Healy, M.D., treated respondent for her injuries which she received in the skywalk collapse. When his deposition was given on June 22, 1983, he gave his opinion that respondent’s mid-back complaints were not related to the injuries at the Hyatt. Appellants’ examining physician, Frederick W. Reckling, M.D., testified by deposition' that an x-ray of respondent’s back taken in September, 1982, showed a compression of the anterior aspect of the vertebral body at T-12, and he reported that it was 40 to 50 per cent compressed. Dr. Healy’s assistant, Dr. Beall, examined respondent on December 9, 1981, at which time she had acute low back pain. Dr. Beall noted that the x-ray showed an old compression fracture in the lower dorsal area (the same as the thoracic area) where she was not symptomatic — the symptoms did not correlate with what Dr. Beall saw objectively, they were lower than the fracture, which fracture was probably older than a month or any age older.

Dr. Healy, at the time of his deposition, had not seen the x-ray taken by Dr. Wis-combe back in March, 1979, and it was produced to him on the morning he was to testify at trial. Based upon the x-ray, Dr. Healy changed his previous deposition opinion and testified that respondent’s compression fracture (of T-12) was caused by the skywalk incident.

Respondent contends that appellants were twice advised of the fact that x-rays were taken of her back, once on her second deposition and once on pretrial conference. The portions of respondent’s deposition were recited by her co-counsel during a bench conference: She was asked, “ ‘Did any doctor treat you for back complaints besides Dr. Lichtor and Dr. Meyer before July 17, 1981? ANSWER: ‘Back strain, Dr. Wiscombe did a little manipulation, he is an osteopath, but that still was when I was in the Bridal Department — ’ So on— ‘Did he take any x-rays — I am sure he did at some time or another, I don’t remember whether he took back x-rays or whether it was chest x-rays. I really don’t remember that.’ ” It appears that during pretrial conference, respondent’s counsel advised appellants’ counsel that he had an x-ray which showed the T-12 intervertebral disk at its full height. “I asked him where it was and his response was, ‘Discovery is completed’, and he admitted yesterday further saying, ‘That is for me to know and you to find out.’ ” It does not appear how long before trial, when the compression fracture x-ray was first revealed, that the pretrial conference took place.

According to appellants’ counsel, he first learned of the existence of the x-ray showing a fully elevated T-12 vertebra during pretrial conference when respondent’s counsel told him about it. Appellants’ counsel searched respondent’s medical records that night and found no evidence that an x-ray of her mid-back had ever been taken. He first learned of its source when Dr. Wiscombe’s medical custodian testified on the second day of trial.

Although appellants requested a mistrial based upon the heated colloquy that counsel had over the source of the x-ray, saying that the jury heard it, the trial court found that it was speculation that the jury overheard the colloquy. The trial court therefore did not err in refusing to grant a mistrial.

Appellants requested a continuance, or at least an adjournment, to enable their medical expert, Dr. Reckling, to examine the x-ray, Plaintiff’s Exhibit 30, and further to examine respondent, as to the source of the compression fracture of T-12, and whether it might have been suffered in the skywalk collapse. Clearly, under all of the facts above recounted, the production of the x-ray on the day of trial, coupled with the change in Dr. Healy’s opinion, came as a surprise to appellants. They had no knowledge, prior to trial, that the x-ray would be a basis for claiming further injury by reason of a compression fracture of T-12. The previous deposition of Dr. Healy indicated that the compression fracture had no relation to the skywalk incident, yet, based upon the x-ray, he changed his opinion and testified that the fracture was the result of the skywalk collapse.

The testimony of Dr. Wiscombe seems to point quite clearly to the fact that upon discovering the additional x-ray of respondent’s back, he did not send it to appellants’ counsel, along with the addition to the medical chart showing “AP & L Lumbar negative” under the date of March 23, 1979. Instead, he gave the x-ray(s) to respondent, Mrs. Wintz. Respondent’s deposition testimony was equivocal as to whether Dr. Wiscombe had previously x-rayed her back. The information revealed by respondent’s counsel to appellants’ counsel during pretrial conference revealed only that there existed a T-12 x-ray showing its proper elevation, and that x-ray was not produced under the claim that discovery was completed, and the information was “For me to know and you to find out”.

At 17 Am.Jur.2d Continuance, § 23, p. 143, these general statements are made: “The fact that a party, without fault on his part, is taken by surprise by the conduct of his adversary and would be unjustly prejudiced if forced to proceed without being given an opportunity to prepare to meet the new situation, is a good ground for continuance. Surprise alone is not sufficient; an applicant must show that he would be prejudiced unless a continuance is granted.” Among cases there cited from other jurisdictions holding it to have been prejudicial error to refuse a continuance or an opportunity to meet surprise matter are these: In Hays v. Viscome, et al., 122 Cal.App.2d 135, 264 P.2d 173 (1953), a doctor (a Dr. Berryman) examined plaintiff at defendants’ request, yet they did not call him ás a witness, it appearing that he would have testified that the plaintiff was seriously injured. The jury returned a small verdict for plaintiff. The court held that it was an abuse of discretion to refuse plaintiff a short continuance in order to bring in Dr. Berryman as her witness, the court having instructed the jury that no inference either way could be drawn as to which side might have called him; Gaglio v. Yellow Cab Company, 63 N.J.Super. 206, 164 A.2d 353 (1960), where the court held that the trial court erred in not granting defendant an amendment to its pretrial order as to unavoidable accident as a defense in a res ipsa loquitor case where plaintiff could have produced an expert to meet the new defense by a short continuance; Habershaw, et al. v. Palfrey, 72 R.I. 448, 53 A.2d 449 (1947), where the evidence, contrary to trial declarations, injected a new issue of plaintiffs’ recovery of lost profits, the court holding that defendant was entitled to claim surprise and to have a reasonable time to obtain expert witnesses to meet the new claim; and Greenberg v. Karris, 80 Ill.App.2d 270, 225 N.E.2d 490 (1967), where plaintiff did not, on deposition, reveal the name of a witness, called at trial, who testified that the deceased driver had been drinking in a bar. The court held that it was prejudicial error to permit the witness to testify until the defense had a reasonable time to make a pretrial investigation.

In this state, upon the issue of surprise and denial of a continuance to meet the matter, Missouri Public Service Company v. Argenbright, 451 S.W.2d 777 (Mo.1970), is significant. In that case there was an amendment to the petition in condemnation which enlarged condemnee’s damages, and took away the Utility’s contentions that it would make a reasonable use of its access rights to the power line easement. The court held that it was prejudicially erroneous to deny the Utility a continuance so it could consider the effect of the amendment and consult with its engineers to determine whether or not the access provision could be eliminated or to confine the ingress and egress to the ends of the right-of-way. At page 785[10], of the Argenbright decision, the court noted that the denial of a continuance is rarely reversible error, “[Y]et, the trial court enjoys neither an absolute nor an arbitrary discretion, and the court’s action will be reversed if there has been an abuse of discretion. (Citing cases.)”

In this case, as noted, the introduction of Plaintiff’s Exhibit 30, the compression x-ray, and the chart notation, Plaintiff’s Exhibit 21, as changed, came as a surprise to appellants. They had not been supplied with the exhibits, and had no chance to produce evidence to meet them. That the admission of the exhibits, and Dr. Healy’s changed testimony as to causation of the compression fracture, were prejudicial, is beyond question. It went to the nature and extent of respondent’s compen-sable injuries occasioned to her by the sky-walk collapse. The trial court prejudicially erred in failing to grant a continuance, or at least an adjournment, to give appellants the opportunity to have their medical expert examine Plaintiff’s Exhibit 30, and further to examine respondent as to the source of the compression fracture of T-12. Por this reason, the judgment must be reversed and the case remanded for new trial.

Other asserted points of error need not be addressed inasmuch as they may not arise on new trial, and because the parties are fully cognizant of the applicable law thereon by their briefing.

The judgment is reversed and the case is remanded for new trial.

All concur.


text:
    STATE of Missouri, Respondent, v. Kent Leroy SCOTT, Appellant.
    No. 47621.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 29, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 26, 1985.
    Application to Transfer Denied April 30, 1985.
    Henry B. Robertson, St. Louis, for appellant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   STEWART, Judge.

Defendant, Kent Leroy Scott, was convicted by a jury of capital murder and two counts of first degree robbery. He was sentenced as a persistent offender to two terms of thirty years and one term of life imprisonment to run concurrently.

On appeal defendant contends that (1) the trial court erred by admitting into evidence the circumstances surrounding defendant’s arrest, including flight from police, resistance of arrest and possession of a handgun, because they were too remote from the crime charged to be material or have any probative force. (2) The trial court erred in admitting into evidence a .38-caliber revolver because the gun was not related to the offenses for which the defendant was on trial, and its prejudicial impact as a physical exhibit was disproportionate to its usefulness. (3) The trial court erred by sustaining the State’s objection to defendant’s question on cross-examination of whether the identifying witness, Rosemarie Brown, had ever been mistaken in identifying anyone because it was relevant, material and tested the credibility of the witness and the believability of her identification.

We view the evidence in the light most favorable to the jury verdict. At about 2:30 a.m. on July 29, 1982, Rosemarie Brown and Grafton Bradford were sitting near Bradford’s parked car in O’Fallon Park in St. Louis, when defendant and another man approached them. Defendant had a gun. The other man remained in the dark by a tree. Defendant ordered Bradford and Brown to disrobe. Bradford replied, “Well man, you’re going to have to shoot me,” and ran from the scene. The defendant fired his gun twice. One bullet passed through Bradford’s midsection mortally wounding him. The assailants then took off in Bradford’s car which contained Brown’s purse.

Ms. Brown subsequently identified defendant from a photograph and the police periodically searched for him at various locations. On December 11, 1982, defendant was observed by police driving a car in downtown St. Louis. The police followed the vehicle at which time the defendant turned the wrong way down a one-way street, accelerated to high speed and violated two stop signs and a traffic signal. Defendant lost control of his car and struck a fence. The police then pursued defendant on foot. The police caught him crouched behind a dumpster. He resisted arrest and after subduing him they placed him under arrest. A revolver was found alongside the dumpster at a point where defendant had been caught. At that time defendant was arrested for traffic offenses and eluding arrest.

Generally the circumstances of defendant’s arrest can be presented when they have probative value in establishing guilt. Whether from the scene or elsewhere unexplained flight is relevant and admissible as indicating consciousness of guilt if the purpose of the flight is to avoid arrest or prosecution. Remoteness from the scene and time goes to the weight of the evidence not its admissibility. State v. Cotton, 621 S.W.2d 296, 300 (Mo.App.1981). In the present case when defendant saw the police officer looking toward him he turned the wrong way into a one-way street, accelerated, took evasive action and resisted when apprehended.

Defendant argues that he could have been fleeing because of crimes other than those involved in this action. The terse answer to this contention is that “one may flee to avoid arrest for more than one offense.” State v. Nienaber, 347 Mo. 615, 148 S.W.2d 1024, 1027 (1941); State v. Hamilton, 569 S.W.2d 350, 351, 352 (Mo.App.1978).

Defendant then argues that the evidence of flight was inadmissible because it tended to show unrelated crimes. The answer to this issue is found in State v. Triplett, 620 S.W.2d 398, 399 (Mo.App.1981). The court held that flight tending to show guilt was admissible although it may incidentally show other crimes.

Closely related to the above issues defendant next contends that it was error to admit the revolver into evidence as an exhibit for the additional reasons that it had a prejudicial impact as a physical exhibit disproportionate to its usefulness; it was not shown to have any relation to the offenses for which defendant was being tried and its exhibition to the jury was riot probative of any issue in the case but was merely inflamatory.

Defendant’s cases cited in support of these are inapposite primarily because they did not involve flight and resistance of arrest.

In the present case, defendant fled from the police, when apprehended he resisted arrest. The gun was found at the point where he was arrested. At the time the gun was introduced into evidence it was stipulated that the exhibit was not the gun used in the commission of the crimes charged.

It is generally held that such a weapon may be introduced into evidence even though it is unrelated to the crime charged when the defendant attempts to evade or resist arrest, or escape. It serves to show that defendant may have contemplated resistance to arrest and such resistance is relevant to show consciousness of guilt. State v. Davis, 535 S.W.2d 259, 260 (Mo.App.1976); State v. Rezabek, 584 S.W.2d 430, 434 (Mo.App.1979). In this case not only did defendant seek to evade arrest he resisted arrest. We find no error in the admission of the gun into evidence.

Defendant finally claims that the trial court erred in sustaining the State’s objection when defendant on cross-examination asked Ms. Brown, have you ever — to your knowledge, have you ever been mistaken in identifying anyone?”

While great latitude is to be allowed in cross-examination the trial court is given wide discretion in controlling the extent of cross-examination, especially with respect to collateral matters. State v. Johnson, 486 S.W.2d 491, 496 (Mo.1972).

The question here was extremely broad and was collateral to the issues in the case. As noted by the trial court, any prior mistaken identification would have required further inquiry as to the then age of the witness, the circumstances as to distance and lighting and other opportunities of observation. The Supreme Court found no error where an objection to a similar but more confining question was sustained in State v. Booker, 631 S.W.2d 854 (Mo.1982). The witness here was subjected to a vigorous and extensive cross-examination by competent counsel. We find no prejudicial error.

Judgment affirmed.

SIMON, P.J., and STEPHAN, J., concur.


author: CRIST, Presiding Judge.

text:
    Maudie Mae LOHSE, Respondent, v. ST. LOUIS CHILDREN’S HOSPITAL, INC., Appellant.
    No. 47904.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 29, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 26, 1985.
    Application to Transfer Denied April 30, 1985.

      Shepherd, Sandberg & Phoenix, P.C., John S. Sandberg, Paul N. Yenker, St. Louis, for appellant.
    V. John Kessler, St. Louis, for respondent.
   CRIST, Presiding Judge.

Wrongful discharge case under Worker’s Compensation Law. We reverse.

On September 4, 1984, this court issued its opinion finding employee failed to establish a submissible case. On November 20, 1984, the Supreme Court of Missouri sustained employee’s application to transfer to that court. On the same day, the Supreme Court of Missouri retransferred the case to this court for reexamination in light of Hansome v. Northwestern Cooperage Company, et al., 679 S.W.2d 273 (Mo. banc 1984).

St. Louis Children’s Hospital (hospital) appeals from a judgment of the Circuit Court of the City of St. Louis for Maudie Mae Lohse, respondent (employee), following a jury verdict awarding employee $12,-500.00 actual damages on Count I of her petition for wrongful discharge under Worker’s Compensation Law. The court had earlier entered a directed verdict in favor of hospital on Count II, a prima facie tort claim for the destruction of employee’s employment file. This court affirmed the dismissal of Count II. Lohse v. St. Louis Children’s Hospital, 646 S.W.2d 130 (Mo.App.1983).

Hospital contends employee failed to produce evidence sufficient to establish a cause of action under Section 287.780 RSMo 1978. The statute states no employer or agent shall discharge or in any way discriminate against any employee for exercising his rights under Worker’s Compensation Law.

In reviewing submissibility, we consider the evidence in a light most favorable to the employee. Hospital’s evidence is disregarded except insofar as it aids or supports employee’s case. Arie v. Intertherm, Inc., 648 S.W.2d 142, 149 (Mo.App.1983).

In Hansome, employee was fired during the treatment period about 6 weeks after the injury. He was released from medical care 2 months after the injury and reported to work. His employer stated he fired him because he was hurt on the job, drew Worker’s Compensation benefits and sought medical treatment. We view Hansome as being in accord with Arie v. Intertherm, Inc., 648 S.W.2d 142 (Mo.App.1983), Henderson v. St. Louis Housing Authority, 605 S.W.2d 800 (Mo.App.1979) and Russell v. United Parcel Service, Inc., 666 F.2d 1188 (8th Cir.1981).

The facts in the case at bar compel a different result. Employee was a nurse technician. As a nurse technician, she carried out primary care of patients. This included bathing patients, changing their clothes and changing sheets on their beds and other tasks necessary to care for patients.

On January 18, 1976, employee injured her back while assisting a patient into bed. Her supervisor advised her to see a doctor. Doctor ordered no work for approximately three months. In May 1976, she saw Dr. Arnot, insurance company doctor. He released her for work. Near the end of 1976, she again saw Dr. Arnot for back problems. He ordered bed rest and no work for 2 to 3 months. She was absent from work approximately 128 days in 1976, 29 days in 1977 and 34 days in the first five months of 1978. She was discharged on May 30, 1978, more than two years after her injury. Employee’s work involved heavy lifting. Employee admitted she was not physically able to do the work required of her as a nurse technician. She was absent from work from other causes as well as her back problems during the two plus years. She admitted she was discharged due to excessive absenteeism.

On June 23,1978, employee filed a Worker’s Compensation case. On July 6, 1978, she had back surgery. Dr. Arnot cared for her through her surgery. Her Worker’s Compensation benefits were not impaired.

Employee submits the following evidence in support of her contention that employer discriminated against her for exercising her rights under Worker s Compensation Law: (1) Employee’s supervisor did not give her light work required by her physical condition. Rather, her duties were increased; (2) Employee’s supervisor made verbal comments suggesting employee was abusing her rights; (3) Employee received no support from the “employee advocate” at a grievance proceeding she instituted to protest the firing. Employee was allowed neither to tape record the proceeding nor to bring an attorney; (4) Employer’s Worker’s Compensation coverage was cancelled within one month after employee’s injury.

In an action under Section 287.780 RSMo 1978, the employee has the burden of proving by competent evidence she was discriminatorily discharged. Davis v. Richmond Special Road Dist., 649 S.W.2d 252, 255 (Mo.App.1983). In this case, employee was injured on January 18, 1976, and returned to work on April 8, 1976. In less than a week, the head nurse transferred her from 3A to 4C, general pediatrics. While she had the same job position, “it was harder, had bigger kids and usually sicker kids too.” 4C was a larger unit and had more beds in it. There was no doctor’s order she was supposed to be on lighter duty at this time.

While employee testified Dr. Arnot told her many times she should only be doing light work, and gave her a note (contents unknown) to give to her supervisor, she was never placed on light duty. The only evidence employer knew of a doctor’s order for light duty, was one made by Dr. Arnot in the Spring of 1978.

The verbal comments did not show employee was fired for exercising her Worker’s Compensation rights. Employee was asked if she had been given a verbal reprimand regarding her absences from work. She said the head nurse had warned her in the Spring of 1978 the hospital would not tolerate any more sick leave, that she would be replaced. She was then asked if the head nurse had said anything about her Worker’s Compensation case. She replied, “she slurred a few times about gravy train.” At the first grievance hearing after her discharge, the head nurse had said if it was not for the injury you would not have all of these problems.”

The grievance proceedings occurred after the firing. The fact employee received little support from her “employee advocate” would have little weight in whether employee was the object of discrimination. Also, the fact of the cancellation of the Worker’s Compensation insurance coverage within one month after the employee’s injury is of little weight.

Employee does not offer substantial evidence of discrimination to support her case. Frequent absences caused in part by the work related injury resulted in termination. Under the statute a cause of action lies “only if an employee is discharged dis-criminatorily by reason of exercising his or her rights under the Worker’s Compensation Law.” Rodriguez v. Civil Services Commission, 582 S.W.2d 354, 356 (Mo.App.1979); Mitchell v. St. Louis County, 575 S.W.2d 813, 815 (Mo.App.1978).

The judgment is reversed.

REINHARD, C.J., and DOWD, J., concur.


author: GAERTNER, Judge.

text:
    Michael MEINHOLD, Appellant-Respondent, v. Mike H. HUANG, Respondent-Appellant.
    Nos. 48169, 48193.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 29, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 26, 1985.
    Application to Transfer Denied April 30, 1985.

      H. Kent Munson, St. Louis, for appellant-respondent.
    Francis L. Ruppert, Clayton, for respondent-appellant.
   GAERTNER, Judge.

Plaintiff Michael Meinhold and defendant Mike Huang each appeal from the order of the trial court granting Huang’s motion for a new trial, but denying Huang’s motion for judgment n.o.v. after the jury returned a verdict for Meinhold for $33,898.50 in Meinhold’s action submitted on the theory of promissory estoppel. We affirm the action of the trial court and remand the cause.

Huang contends the trial court erred in not granting his motion for judgment n.o.v. because Meinhold’s action is barred by the Statute of Frauds. Meinhold contends the trial court erred in granting a new trial on the ground that his verdict directing instruction should have submitted a breach of contract theory, rather than the not-in-MAI promissory estoppel verdict director.

We view the evidence in the light most favorable to plaintiff. A Mr. Richel, who lived in Germany, gave Meinhold a power of attorney to dispose of some Nevada real estate owned by Richel. Meinhold asked Huang, a family friend and licensed real estate broker, to help sell the property. He was successful and the real estate was sold for cash and a promissory note. The note was then discounted for approximately $55,000.00.

Before Meinhold actually received this sum, Huang approached him with a business proposition. He told Meinhold a profit could be made by building and selling houses in St. Charles County. Huang said he was in contact with an experienced home-builder, who was also interested in such a venture. It was Huang’s proposal that a corporation be organized by the three of them. With financing from Meinhold’s contribution of the $55,000.00, and the use of Huang’s and the builder’s credit, three or more residences could be constructed in less than a year and the $55,000.00 could then be repaid to Richel. To overcome Meinhold’s reluctance, Huang promised that if the corporation did not repay the money, he would personally guarantee repayment within a year.

When the check for the $55,000.00 arrived, Meinhold endorsed it over to Huang. About one month later, in April, 1979, the corporation, General Properties Corporation, was organized. Bank financing was obtained on which Huang and the builder were personal guarantors. Three lots were purchased and eventually one residence constructed.

In June, 1979, Meinhold asked Huang for some documentation of where the $55,-000.00 had gone. A week later he was presented with a promissory note of the corporation in the sum of $54,000.00 payable in monthly installments of $620.00 for twelve years. He also received 1,000 shares of stock in General Properties Corporation. The corporation paid five monthly installments on the note. One home was constructed and sold as were the other two lots. Meinhold received approximately $18,000.00 from the proceeds of these sales.

HUANG’S APPEAL

Huang appeals from the denial of his motion for judgment n.o.v. contending Meinhold’s claim against him is barred by the Statute of Frauds, § 432.010, RSMo. 1978. Because the granting of his alternative motion for a new trial erased the judgment against him, there is no final appeala-ble judgment. Therefore, his appeal must be dismissed. Robbins v. Jewish Hospital of St. Louis, 663 S.W.2d 341, 344 (Mo.App.1983). Nevertheless, where a plaintiff appeals asserting error by the trial court, the defendant may contest the submissibility of plaintiff’s ease, an issue inherent in every appeal. Id.

Section 432.010, provides, in pertinent part:

No action shall be brought * * * to charge any person upon any special promise to answer for the debt, default or miscarriage of another person * * * unless the agreement * * * shall be in writing * * *.

It is well established that a promise which is original as between the prom-isee and the promisor, as opposed to one which is collateral to the primary obligation of a third party, is not barred by the Statute of Frauds. Carvitto v. Ryle, 495 S.W.2d 109, 114 (Mo.App.1973). Regardless of its form, a promise is an original undertaking and not within the Statute of Frauds where credit is given by the prom-isee to the promisor alone, and where the leading or main purpose of the promisor in making the promise is to gain a personal advantage for himself or to promote some interest or purpose of his own, and where the promise is supported by a consideration directly beneficial to the promisor. Wahl v. Cunningham, 320 Mo. 57, 70-71, 6 S.W.2d 576, 581, 67 A.L.R. 489 (banc 1928). In Carvitto v. Ryle, supra, an owner told a subcontractor to finish certain work on the owner’s home and if the general contractor, who was experiencing financial problems, did not pay the subcontractor, “I’ll see that you get your money_” 495 S.W.2d at 112. In holding this to be an original independent promise outside of the Statute of Frauds, the court stated:

The fact that such promise may in form be a promise to pay another’s debt or that it might be incidentally beneficial to another debtor does not alone bring it within the statute of frauds. If the “leading” or “main” object of the promise is not to answer for the debt or obligation but rather to serve an interest of the promisor or if it directly benefits him, the promise is not within the statute.

Carvitto v. Ryle, 495 S.W.2d at 114.

Here, the conclusion that Huang’s promise to pay Meinhold within the year was intended to, and in fact did, serve Huang’s interest and obtain a direct benefit for him is clear. Meinhold’s contribution of money was the cornerstone of Huang’s real estate venture without which the corporation would never have been organized. Meinhold did not extend credit to a nonexistent corporation to repay the money over a 12 year period, but endorsed the $55,000.00 check and gave it to Huang solely in reliance upon the latter’s inducements and the promise of repayment within one year. Huang’s promise was original and independent of the corporate obligation.

Accordingly, Huang’s contention that Meinhold’s claim was barred by the Statute of Frauds is without merit and the court did not err in overruling his motion for judgment n.o.v.

MEINHOLD’S APPEAL

In granting Huang’s motion for new trial, the trial court specified as the sole basis for its order error in giving Mein-hold’s requested verdict directing instruction which submitted a theory of recovery based upon the elements of promissory es-toppel. The form of this non-MAI instruction was erroneous in that it was argumentative and submitted to the jury questions of law rather than of fact. However, we need not specifically address the language of the instruction because it was error to submit the case on the theory of promissory estoppel.

Any reasonable view of plaintiff’s evidence shows the case to fall within the ambit of MAI 26.06, the verdict director for breach of a bilateral contract: (1) in consideration of Meinhold’s promise to pay over the $55,000.00, Huang promised to guarantee the money would be repaid within one year; (2) Meinhold performed his agreement; (8) Huang did not perform his; and (4) Meinhold was thereby damaged. Huang’s denial of any personal promise to repay within the year put in issue the terms and breach of the agreement, the very issues covered by MAI 26.06.

“If a Missouri approved instruction is applicable, such instruction must be given to the exclusion of all others.” Karashin v. Haggard Hauling & Rigging, Inc., 653 S.W.2d 203, 206 (Mo.banc 1983).

The doctrine of promissory estoppel has been resorted to in Missouri in extreme cases and only to avoid unjust results. For example, in two cases, the doctrine was used to permit former employees to recover lifetime pensions promised to them if they retired. Katz v. Danny Dare, Inc., 610 S.W.2d 121 (Mo.App.1980); Feinberg v. Pfeiffer Company, 322 S.W.2d 163 (Mo.App.1959). In each of these cases, the plaintiff’s reliance upon the promise to his detriment was held to supply the otherwise missing element of consideration and thus to establish a contractual obligation of the defendant to honor his promise. On the other hand, Missouri courts have refused to apply the doctrine as means of overcoming the Statute of Frauds in a real estate sale case, Shaffer v. Hines, 573 S.W.2d 420 (Mo.App.1978), in cases involving oral contracts not to be performed within one year, Mayer v. King Cola Mid-America, Inc., 660 S.W.2d 746 (Mo.App.1983) and Morsinkhoff v. Deluxe Laundry and Dry Cleaning Company, Inc., 344 S.W.2d 639 (Mo.App.1961). In Longmier v. Kaufman, 663 S.W.2d 385 (Mo.App.1983) we refused to permit circumvention of the oral lease statute, § 441.060, RSMo.1978, by means of promissory estoppel.

Morsinkhoff is especially informative here. Recognizing that his oral contract of employment could not be performed within one year, the plaintiff submitted his case to a jury on the theory of promissory estop-pel. The court of appeals reversed a judgment for plaintiff, holding his cause of action was for breach of contract and not for promissory estoppel. “To allow recovery on the theory of promissory estoppel would abrogate the purpose and intent of the legislature in enacting the Statute of Frauds and would nullify its fundamental requirements.” 344 S.W.2d at 644.

The trial court did not err in sustaining Huang’s motion for new trial.

Affirmed and remanded.

PUDLOWSKI, P.J., and KAROHL, J., concur.

      . In Morsinkhoff, as here, no question was raised concerning the propriety of submission of a jury instruction based upon the elements of promissory estoppel. But see C&K Engineering v. Amber Steel Company, 23 Cal.3d 1, 151 Cal.Rptr. 323, 587 P.2d 1136 (1978) holding promissory estoppel to be an equitable remedy not warranting trial by jury.


author: CRANDALL, Presiding Judge. SNYDER, Judge,

text:
    The INCORPORATION OF MARYLAND HEIGHTS, Barnett, et al., Respondents, v. Harry VON ROMER, et al., Appellants.
    No. 49193.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 5, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 14, 1985.
    Application to Transfer Denied April 30, 1985.

      Thomas W. Wehrle, Clayton, for appellants.
    Howard Paperner, Clayton, for respondents.
   CRANDALL, Presiding Judge.

This appeal involves the effort to incorporate the City of Maryland Heights. Barnett, et al., petitioners, filed their petition with Von Romer, et al., being members of the St. Louis County Council, seeking an election to incorporate a portion of unincorporated St. Louis County as a city of the third class to be known as the City of Maryland Heights. After a hearing the Council denied the petition, thereby ruling that an election could not take place. Petitioners appealed to the Circuit Court of St. Louis County. The circuit court reversed the decision of the Council, finding an abuse of the Council’s discretion, and ordered that an election be held. We affirm the judgment of the circuit court.

Section 49.230, RSMo (Supp.1984), provides for appeals of decisions of county commissions to circuit courts: “The circuit court shall proceed to hear and determine the case in the manner provided by section 536.140, RSMo. Appeal from the decision on review may be taken by the county commission or other aggrieved party as in civil cases.” Section 536.140, RSMo (1978), the statute covering appeals from decisions of administrative agencies, delineates the scope of review of the trial court.

Our review is of the County Council’s action and not the judgment of the circuit court. Evangelical Retirement Homes v. State Tax Commission, 669 S.W.2d 548, 552 (Mo. banc 1984). “The scope of review of an appellate court with respect to an administrative decision is the same as that of the circuit court.” Ingram v. Civil Service Commission, 584 S.W.2d 633, 634 (Mo.App.1979).

Section 72.080, RSMo (1978), sets out the requirements for incorporation of a municipality.

Whenever a number of voters equal to fifteen percent of the votes cast in the last gubernatorial election in the area proposed to be incorporated shall present a petition to the governing body of the county in which such city or town or area is situated, such petition shall describe, by metes and bounds, the area to be incorporated and be accompanied by a plat thereof, shall state the approximate population and the assessed valuation of all real and personal property in the area and shall state facts showing that the proposed city shall have the ability to furnish normal municipal services within a reasonable time after its incorporation is to become effective and praying that the question be submitted to determine if it may be incorporated. If the governing body shall be satisfied that a number of voters equal to fifteen percent of the votes cast in the last gubernatorial election in the area proposed to be incorporated have signed such petition, the governing body shall submit the question to the voters.

The parties agree that the petition that was filed meets the requirements of the statute except for the requirement that Maryland Heights “have the ability to furnish normal municipal services within a reasonable time.” In order for the City of Maryland Heights to provide such services, it would be required, not unexpectedly, to tax the citizens of its City in order to pay for the municipal services rendered. In the petition and at the hearing one of the methods included in the plan of the residents was the levy of a five percent gross receipts tax on public utilities. If that tax were imposed, Maryland Heights would have the necessary tax base to provide normal municipal services within a reasonable length of time. Without the tax the projected revenue for the City would be inadequate.

The sole, articulated reason for rejection of the petition was that Mo. Const. Art. X, § 22(a), the Hancock Amendment, prevents the incorporation. The argument espoused is that § 72.080 requires the municipality to be able to provide normal municipal services. Maryland Heights cannot meet this requirement without a tax levy. The Hancock Amendment, the County assumes, prohibits a levy of taxes without the approval of a majority of the voters within the City of Maryland Heights. Therefore, the County argues, the petition fails, as a matter of fact, to establish that Maryland Heights can meet the statutory requirements of § 72.080 because the voters therein might vote down the tax levy. The logical extension of the County’s argument is that, for all practical purposes, there can never be an incorporation of a new city in the State of Missouri. We disagree.

Section 72.080 is a grant of power to the majority of the electors of an unincorporated area of the right to incorporate, rather than a grant of power to the governing body of counties. State ex rel. Boone v. Jackson County, 541 S.W.2d 312, 315 (Mo.App.1976).

We next consider what the obligation or role of the governing body is when a petition to hold an election to incorporate is presented to it. Certainly, the statute requires it to satisfy itself that the required number of qualified electors have signed the petition. Since no other agency is designated and the petition is filed with the governing body of the county, it is apparent that this governing body is required to determine the sufficiency of the statements to be contained in the petition. But nothing in the statute authorizes them to substitute their judgment for that of the electors as to whether or not the proposed incorporation is feasible and beneficial_
It appears to us that the function of the governing body is to determine the legality of the proposed incorporation before declaring an election. Whereas it is the function of the voters to determine if the proposed incorporation is feasible and beneficial to their interest....
From the Duquesne case [322 S.W.2d 857] we conclude that the respondent could investigate and if it determined that the facts stated in the petition showing that the proposed city should have the ability to furnish normal municipal services within a reasonable time were false, or that the facts stated patently showed that the city could not furnish normal municipal services within a reasonable time, it would be authorized to deny the petition. In fact, it would be its duty to do so to prevent the illegal creation of a city or to prevent the useless expense of holding an election to create a city that was subject to being ousted by a writ of quo warranto.... (Emphasis added.)

Id. Cited with approval in Cherry v. City of Hayti Heights, 563 S.W.2d 72 (Mo. banc 1978).

For the purposes of this opinion, we will assume without deciding that the Hancock Amendment requires voter approval of any tax levy in the City of Maryland Heights. The County’s characterization of the Council’s decision as being a resolution of disputed facts is incorrect. The facts are not disputed. The issue is the legal conclusion to be drawn from those facts. In that regard we find that the Council’s decision was based on a misapplication of the law.

The County cannot “substitute its judgment for that of the petitioners or the voters as to whether or not a proposed city could furnish normal municipal services within a reasonable time, or what services would be normal or what time would be reasonable.” (Emphasis added.) Boone, 541 S.W.2d at 316. This answers the County’s argument based on the Hancock Amendment. Even prior to the Hancock Amendment, whether a city would in fact follow through and impose the necessary taxes was speculative. The only question is whether the plan could work.

Section 72.080 does not require a proposed city to have tax money in place in order for an incorporation to be proper. Any new city, and many existing cities, have to lift themselves by their bootstraps in order to function or in order to continue to function. Whether a new city can provide normal municipal services or whether an existing city can continue to provide normal municipal services is frequently conjectural.

The test advocated by the County is inapposite to the Boone and Cherry decisions. The question is whether it is possible under the facts as pleaded for the City to meet the statutory mandate. If the facts as pleaded are false or if it is clear from the facts as pleaded that the City could not provide the necessary services, then it would be the duty of the Council to deny the petition.

In the present case the facts as pleaded and adduced at the hearing were not false. The stated facts showed that the City could provide necessary services if the voters approved the tax levy. There is no contention that the proposed tax would be unreasonable either as to amount or type. The Council, therefore, was obligated to permit the election.

The judgment of the circuit court is affirmed.

CRIST, J., concurs.

SNYDER, J., dissents in a separate dissenting opinion.

SNYDER, Judge,

dissenting.

I respectfully dissent. The agreed facts show patently that the proposed city could not furnish normal municipal services within a reasonable time.

Respondents’ petition to the St. Louis County Council projected a budget with annual expenditures of $3,610,952, including capital expenses of $376,545. Revenues were projected at $4,186,842 annually, including a gross receipts utility tax collection of $1,867,171 or 44.6% of the total revenues. It is obvious that without the utility tax the city could not exist.

It would require months to submit the tax to a vote of the people, and in these days of resistance to increased taxes and more government, there is no assurance that a majority of the voters would approve a substantial addition to their already high utility bills. Even if the utilities tax were to be approved, the revenue would not be available within a reasonable time.

And what happens if the utility tax is submitted to a vote and fails of passage? Admittedly the proposed municipality, having failed to raise almost half of the projected revenue requirement, would be able to furnish only minimal municipal services, a chaotic situation for the city residents.

It is true there is always some speculation and conjecture about the ability of a new municipality to raise money and provide services, but the majority would stretch conjecture beyond reasonable limits.

If the Hancock Amendment, Mo. Const. Art. X, Sec. 22(a), does indeed make it difficult for new municipalities to incorporate, then perhaps the solution is an amendment to the Hancock Amendment. It is a part of Missouri law and the citizens who adopted it must live with it.

I would reverse the judgment of the circuit court.

      . Although not part of the record below, the parties agree that the election was held during the pendency of this appeal and the incorporation of the City of Maryland Heights was approved by the voters. In this opinion we therefore refer to the City in the present tense.


author: PUDLOWSKI, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gregory LAHAY, Defendant-Appellant.
    No. 48421.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 5, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 26, 1985.
    Application to Transfer Denied April 30, 1985.
    Kathryn Shubik, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.
   PUDLOWSKI, Presiding Judge.

This is an appeal from a jury conviction for assault in the second degree, burglary in the first degree, stealing over $150 and armed criminal action. Defendant contends he was denied a fair trial because the state failed to notify defense counsel of a witness’ prior inability to identify defendant in a pictorial array. We affirm.

On March 4, 1983 at approximately 4:20 p.m., Robert Wilson returned home from the circuit clerk’s office in the City of St. Louis after attempting to post bond for Gregory Hilts. When he reached his home, he noticed a car blocking his driveway. Wilson parked next door and went to the back of his house. At that time, he observed Susan Hilts, Gregory’s wife, standing in the doorway. As he entered his home, Wilson observed defendant, Gregory Lahay, in the back bedroom with a pistol. Defendant told Wilson not to look at him. At some point thereafter, Wilson was hit several times with the butt of a rifle he kept in his closet.

Later that evening, Susan Hilts telephoned Wilson and offered to return the property if he did not prosecute. The police overheard the conversation. Hilts and defendant were subsequently arrested.

Defendant raises one point on appeal. Defendant contends he was denied the right to a fair trial because the state failed to notify defense counsel of Delores Wilson’s inability to identify defendant in a pictorial array.

Delores Wilson is the next door neighbor of the victim, Robert Wilson. On the night in question, Delores Wilson was returning home from work. Delores Wilson observed defendant exit Robert Wilson’s door, run down his steps and get into a car.

On the day of trial, Delores Wilson reported to the courthouse with Robert Wilson. Robert Wilson was shown an array of photographs and asked to identify the man in his home. Delores Wilson requested to see the photographs, however, she was unable to make any identification. At trial, Delores Wilson made an in court identification of appellant.

The evidence is clear that the state failed to inform defense counsel of Delores Wilson’s viewing of the photographs. With this in mind, the question remains “whether the failure to disclose resulted in fundamental unfairness or prejudice to defendant.” State v. Smothers, 605 S.W.2d 128, 131 (Mo. banc 1980).

Supreme Court rule 25.03 requires pretrial disclosure of various materials which could affect the outcome of trial. More specifically, the state shall disclose “[t]he names and last known addresses of persons whom the state intends to call as witnesses at any hearing or at trial” and “[a]ny ... photographs, ... which the state intends to introduce into evidence at the hearing or trial_” Rule 25.03.

It appears from the record that Delores Wilson was not a surprise witness. No objection was made when Delores Wilson was called to testify. We can only assume that defense counsel was aware of the state’s intent to call her as a witness or that defense counsel waived any objection it may have had. We now direct our attention to the photographs.

The record reveals that the photographs were admitted into evidence, without objection, prior to Delores Wilson’s testimony. There was no error in the admission of the photographs. However, by not informing defense counsel of Delores Wilson’s viewing, the state was in violation of Rule 25.-03(9) which states the state shall disclose:

[a]ny material or information, within the possession or control of the state, which tends to negate the guilt of the defendant as to the offense charged ...

The failure to inform defense counsel was error. However, under Rule 25.16 the court could have, if requested, granted defendant a continuance in order to voir dire the witness out of the presence of the jury. See State v. Davis, 627 S.W.2d 308 (Mo. App.1981). This continuance could have eradicated any inadequacy of cross-examination in relation to the reliability of the identification evidence. No effort was made to obtain a continuance. The drastic remedy of a mistrial is not available until the remedies shown in Rule 25.16 are shown to be inadequate. State v. Smothers.

The judgment is affirmed.

GAERTNER and KAROHL, JJ., concur.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Richard HAMIL, Appellant.
    No. WD 35651.
    Missouri Court of Appeals, Western District.
    Feb. 5, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 2, 1985.
    Application to Transfer Denied April 30, 1985.
    George M. Ely, Hamilton, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before TURNAGE, C.J., and MANFORD and KENNEDY, JJ.
   ORDER

PER CURIAM.

This is a direct appeal from a jury conviction for murder, second degree, in violation of § 565.004, RSMo 1978.

Judgment affirmed. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Ronald Keith WILDER, Appellant.
    No. WD 35926.
    Missouri Court of Appeals, Western District.
    Feb. 5, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 2, 1985.
    Application to Transfer Denied April 30, 1985.
    Holly G. Simons, Columbia, for appellant.
    John Ashcroft, Atty. Gen., Mark A. Richardson, 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 for offering violence to a prison officer, in violation of § 217.385, RSMo Cumm. Supp.1983.

Judgment affirmed. Rule 30.25(b).