However, defendant's right, and the court's duty, to give such an instruction are fulfilled if the court refuses defendant's tendered instruction and gives, instead, its own instruction covering defendant's theory. State v. Niehoff, Mo., 395 S.W.2d 174. Comparison of refused Instruction No. B and given Instruction No. 7 demonstrates not only that they are substantially the same, but also that Instruction No. 7 adequately and favorably presented defendant's converse theory. By Point III appellant charges error with respect to the state's argument.
State v. Washington, Mo., 383 S.W.2d 518, 524 and cases cited answer appellant's contention that the court erred in permitting Armstrong to testify. No abuse of the court's discretion is shown, State v. Niehoff, Mo., 395 S.W.2d 174, and Point II is overruled. The last point is that the court erred in permitting witness McKeon to make an in-court identification of appellant, the matter being asserted as plain error affecting substantial rights under Supreme Court Rule 27.20(c), V.A.M.R., and within United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. The pre-trial identification of appellant (a photograph and by observation) brought out on cross-examination of McKeon does not offend the Wade and Gilbert cases or Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. There was no suggestive procedure employed by the police, and although appellant did not have counsel when McKeon viewed him the "totality of the circumstances" clearly shows that McKeon's in-court identification had a source independent of the police station confrontation.
The admission of immaterial and irrelevant evidence is reversible error only if the defendant is thereby prejudiced. State v. Moore, Mo., 353 S.W.2d 712, 714-715[6]; State v. Niehoff, Mo., 395 S.W.2d 174, 179-180[3]. Appellant argues that "there is every indication that State's Exhibit 7 was actually a `mug shot.'"
53 Am.Jur. (Trial) § 497, p. 402; 88 C.J.S. Trial, §§ 188, 191, pp. 373, 375. The quoted record refutes the claim that the court improperly restricted counsel's argument, on the contrary and whether proper or not counsel was permitted to make his point that appellant belonged to a minority group (State v. Niehoff, Mo., 395 S.W.2d 174, 184) and there has been no such abuse of discretion in restricting counsel's argument as to demand the granting of a new trial by this court. Accordingly the judgment is affirmed.
te cites State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307, stating: "`Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial.' The test of whether evidence of other distinct crimes falls within any of these exceptions has been aptly stated as follows: `The acid test is its logical relevancy to the particular excepted purpose or purposes for which it is sought to be introduced. If it is logically pertinent in that it reasonably tends to prove a material fact in issue, it is not to be rejected merely because it incidentally proves the defendant guilty of another crime. * * *'" See also State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765; State v. Niehoff, Mo. Sup., 395 S.W.2d 174; State v. Smith, Mo. Sup., 431 S.W.2d 74; 22A C.J.S. Criminal Law §§ 686-687, pages 764-782. We hold defendant's testimony was competent on the issues of motive and intent and that it was not evidence which defendant's counsel claimed was inadmissible.
The offer of witness Denise Huff in surrebuttal was "to ask her what time it was," a matter which was covered in detail on both her direct and cross-examinations, and the reiteration was properly disallowed in the exercise of the court's discretion. See State v. Niehoff, Mo., 395 S.W.2d 174, 182[9, 10]. Judgment affirmed.
"Wilfully" was defined in the instruction as meaning "intentionally and not by accident or mistake." The issue was, therefore, submitted to the jury and refusal of defendant's instruction was not error. State v. Niehoff, Mo.Sup., 395 S.W.2d 174, 182-183 [12], [13]. Appellant's final assignment of error relates to the trial court's overruling his objections to the remark of the prosecuting attorney, in his opening statement, that the occupants of the Oldsmobile were arrested for murder and robbery and to the similar testimony of Trooper Mertens in response to the question by the prosecutor as to whether the witness took any official action affecting appellant.
Appellant's guilt of the charged burglary could not under this record be sustained unless by proper evidence of other theft offenses in the case under exceptions to the general rule, supra, of exclusion of the evidence of such other offenses. Those exceptions are stated in State v. Niehoff, Mo., 395 S.W.2d 174, 180 [4]: "However, `the recognized exceptions to the rule are where the evidence of other crimes tends to establish: (1) Motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) the identity of the defendant.'" The inquiry is then whether the proof of the other thefts was sufficient to implicate appellant in their commission, so as to justify an inference that he had the requisite intent to commit the charged burglary, and more importantly whether appellant and John Savage were engaged in a common scheme or plan, or a course of conduct, to burglarize and steal leading up to and including the instantly charged burglary.
The scope of rebuttal testimony is largely within the sound discretion of the trial court, and unless the court abuses its discretion, or the defendant's rights are prejudicially affected, an appellate court will not reverse on that ground even though the rebuttal testimony may not, strictly speaking, be proper rebuttal evidence. State v. Niehoff, Mo., 395 S.W.2d 174; State v. Hayes, Mo., 391 S.W.2d 338. In this case the substance of the rebuttal evidence had previously been testified to by Sergeant Campbell when called by the state in its case in chief, except the testimony that the bullet hole and the mark behind it were of the same height.
The trial judge did not err in sustaining the objection. State v. Sims, Mo.Sup., 395 S.W.2d 445, 452; State v. Niehoff, Mo.Sup., 395 S.W.2d 174. After the return of the verdict, the jury was discharged and the following proceedings were had in open court: