
    Robert Alvin THOMAS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 56663.
    Supreme Court of Missouri, Division No. 2.
    Sept. 11, 1972.
    Motion for Rehearing or Transfer to • Court En Bane Denied Oet. 9. 1972.
    Robert J. Wynne and Harvey G. Schneider, St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   HENLEY, Judge.

This is an appeal from an order overruling a motion to vacate judgment and sentence. Rule 27.26, V.A.M.R.

Robert Alvin Thomas (hereinafter mov-ant) was convicted by a jury of burglary, second degree, and sentenced to imprisonment for seven years. His appeal from that conviction was affirmed on April 13, 1970. State v. Thomas, Mo., 452 S.W.2d 160.

Movant alleged in his motion to vacate, and contends on this appeal, that he was denied federal and state constitutional rights to due process of law in the trial of the burglary case in that (1) the court erred in admitting in evidence testimony of a police officer and one of the victims of the burglary (a) that movant stated, in response to questioning, that he “ * * * knew nothing of the burglary, was not there, and could prove where he was, * * * ” and (b) that movant “ * * * refused to make any statement * * * ” ; (2) the court erred in refusing to give an instruction requested by movant “ * * * that no inference of guilt should be drawn from the fact that movant did not testify.” Movant further alleged, and contends, that he was denied effective assistance of counsel at trial and on appeal, because counsel failed to object to the evidence mentioned in (1) (a) and (b), failed to move to strike the same, failed to ask for a mistrial, and failed to preserve those errors for review by assigning them as such in the motion for new trial; and, that counsel failed to preserve for review the failure to give the instruction mentioned at (2) above.

Movant’s evidence on the motion to vacate consisted of the transcript of the proceedings in the burglary case.

The trial court found and concluded that the admission of testimony and the failure to give an instruction were, at most, trial errors not rising to the dignity of denial of due process, and that movant had effective assistance of counsel.

The findings and conclusions of the trial court are not clearly erroneous. Rule 27.-26(b) (3); State v. Worley, Mo., 371 S.W.2d 221, 222[1]; Sallee v. State, Mo., 460 S.W.2d 554; State v. Caffey, Mo., 457 S.W.2d 657; State v. Smith, Mo., 411 S.W.2d 208; State v. Wiggins, Mo., 360 S.W.2d 716.

The judgment is affirmed.

DONNELLY, J., and SMITH, Special Judge, concur.

MORGAN, P. J., not sitting.  