author: KELLY, Judge.

text:
    Robert M. JENNI and Helen A. Jenni, Plaintiffs-Respondents, v. E.R.B. LAND, INC., a Missouri Corporation, Defendant-Appellant, John M. Gamel et al., Defendants.
    No. 36568.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 14, 1976.

      Earl R. Blackwell, Hillsboro, for defendant-appellant.
    Husch, Eppenberger, Donohue, Elson & Cornfeld, Myron Gollub, Frank Hamsher, St. Louis, for plaintiffs-respondents.
   KELLY, Judge.

E. R. B. Land, Inc., the defendant-appellant, brings this appeal to review a judgment of the Circuit Court of Jefferson County decreeing that the plaintiffs-respondents have a security interest in a 78 acre parcel of land situate in Jefferson County and which security interest it established as a prior lien to defendant-appellant’s interest in said tract of land together with a declaration that defendant-appellant is a constructive trustee with respect to plaintiffs-respondents’ security interest therein.

This cause was instituted against the E. R. B. Land, Inc., John M. Gamel and Mildred Gamel, his wife, John Clyde Gamel, and David Edgar Gamel. Count I of the petition sought a declaration that certain quit-claim deeds from the Gamels to E. R. B. Land, Inc., were void and that the Ga-mels be directed to execute and deliver to the plaintiffs a first deed of trust conveying the real estate in trust for the plaintiffs to a trustee to be designated by the Court. Count II of the petition sought active damages against the Gamels in an amount of $33,561.84, plus interest at 6% per annum and $150,000.00 exemplary damages for alleged false representations relative to execution and delivery of a second deed of trust to secure the plaintiffs for the balance due on the sale of the real estate. Count III prayed the trial court to declare that the E. R. B. Land, Inc., was a constructive trustee of plaintiffs’ interest in the land, and that E. R. B. Land, Inc., be directed to convey its interest in the land to plaintiffs.

Counts I and III of the petition, being equitable in nature, were tried to the court; Counts II and IV were dismissed by the respondents-plaintiffs at the close of all of the evidence.

The evidence was that the 78 acres involved in this cause of action was part of what was originally a 200 acre farm owned by the Jennis. In July, 1966, they sold off approximately 122 acres of this farm to Robert M. Williams of the Sunset Realty Company, of Hillsboro. Prior to that time they had sold one acre to the City of Festus. In August, 1966, the Jennis entered into negotiations with John M. and Mildred Ga-mel for the sale of the remaining 75 acres of the farm. Mr. Gamel retained the services of an attorney, J. W. Thurman, of Crystal City, to prepare the necessary legal documents. According to Mr. Thurman, he met with the parties to the sale in his home, where he drafted the necessary legal papers, including a contract, a note, a deed of trust and a deed. The Agreement for Purchase of Realty provided that the purchase price for the tract of land was $39,000.00, of which the Gamels had paid $5,000.00 as earnest money; that the balance of $34,-000.00 was to be paid in equal' monthly installments of $219.08 over a period of 25 years, to be secured by a note and deed of trust on the premises “in the form ordinarily used in this state.” The $5,000.00 earnest money for the down payment had been borrowed by John and Mildred Gamel from Mr. Gamel’s father and he was given a deed of trust as security for the loan.

Mr. Jenni testified that on the day the documents were executed at Mr. Thurman’s home, sometime in August, 1966, the Agreement for Purchase of Real Estate was notarized by Mr. Thurman and dated August 12, 1966 and Mr. Jenni testified that is the date on which he received the $5,000.00 earnest money. The note for $34,000.00, dated July 1, 1966, and a copy of the amortization schedule, along with a copy of the Agreement for Purchase of Real Estate, were given to Mr. Jenni. The deed was not executed on that visit to Mr. Thurman’s but a couple of weeks after they had been at Mr. Thurman’s home, Mr. Jenni received a letter and the warranty deed through the mail from Mr. Thurman. The letter accompanying the warranty deed contained instructions that the Jennis should go before a notary and sign the deed before the notary and then give the warranty deed to the Gamels. The Jennis did as instructed and the warranty deed was executed on September 6, 1966. Although Mr. Thurman testified that he prepared a deed of trust on the property, as well as a chattel mortgage on some personalty and a second note, and he delivered the note, deed of trust, copy of the sales contract, the note and the chattel mortgage on the personalty, and “I delivered these papers that Mr. Jenni was entitled to.” When they left his home the Jennis took “all the executed papers with them.” Mr. Jenni denied ever receiving the deed of trust, explaining this by testifying that it was his understanding that Mr. Thurman would “do everything that’s needed to complete this sale.” It is conceded that no deed of trust securing the balance due as evidenced by the note was ever filed in the office of the Recorder of Deeds of Jefferson County. The deed of trust securing the $5,000.00 loan from Mr. Gamel’s father, however, was recorded.

For more than two years the Gamels made the monthly payments on the property in accordance with the amortization schedule until October 1, 1968, after which date they made no further payments. The principal amount remaining unpaid as of that date was $32,584.99.

In February, 1969, Mr. Williams came to Mr. Blackwell, the president and sole shareholder in E. R. B. Land, Inc., and informed Mr. Blackwell that he had been approached by Mr. and Mrs. John Gamel, Sr., with respect to buying the $5,000.00 deed of trust and after questioning Mr. Williams about the property and what it was worth, authorized Mr. Williams to go ahead and negotiate for the purchase of the note and deed of trust. Mr. Williams purchased the note and deed of trust for E. R. B. Land, Inc., for $3,450.00. At the time of purchase of the note no payments on either principal nor interest had been made by the John M. Gamels.

A week or so after the purchase of the $5,000.00 note and deed of trust, Mr. Williams asked Mr. Blackwell if he would be interested in buying the 28 acres inasmuch as he believed the place could be bought. Mr. Blackwell told Mr. Williams to go ahead and try to buy it, and Mr. Williams undertook negotiations for the purchase of the tract, obtaining from the Gamels an option contract for the purchase of their equity in the farm for $2,000.00, plus the cancellation of both of the outstanding obligations of the Gamels to both the Gamel, Srs., and the Jennis. This transaction was completed on February 19, 1969, with Williams making payment to the Gamels, the execution of three quit claim deeds for the property from the Gamels to E. R. B. Land, Inc., and the recording of those deeds by Mr. Williams, in the office of the Recorder of Deeds of Jefferson County. Mr. Williams was the only one representing E. R. B. Land, Inc., to have any contact with the Gamels throughout these negotiations resulting in the purchase of the property; Mr. Blackwell never, at any time, took part in the negotiations.

At trial, Mrs. Gamel testified by deposition that during the negotiations for the sale of the property she had informed Mr. Williams that she and her husband were behind in their payments to the Jennis, and that she showed him the schedule of payments for the note, and told Mr. Williams that she and her husband were obliged to pay off the note. She testified that Mr. Williams replied by saying that he would pay the Gamels for their equity in the land. Although Mr. Williams did not specifically say that he would satisfy the note to the Jennis, he did state that he would “take care of the rest of it.” At at the last meeting, as they were preparing to sign the papers, Mrs. Gamel remarked; “Now that pays off_that cancels the $5,000.00 note that you bought from my father-in-law, that pays off Mr. Jenni . . . Then that gives us $2,000.00 for our equity.” Mr. Williams replied: “Yes, that is right.” She further testified that before she received any money for the property she and Mr. Williams, on a number of occasions, discussed all of the obligations concerning the sale of the property, including the Gamels’ financial obligations to the Jennis. Prior to his purchase of the property, she did not notify Mr. Blackwell of any debt, or encumbrance by deed of trust against the property. All of her dealings were with Mr. Williams and she did not know at that time who it was who was actually purchasing the property. She learned later that Mr. Blackwell had an interest in the purchasing corporation.

After her first meeting with Mr. Williams, according to Mrs. Gamel, Mr. Jenni visited the farm and at that time was advised that the Gamels had a customer who was going to buy the farm, that they were dealing with Mr. Williams, and when they sold the farm Mr. Jenni would get his money. Mr. Jenni testified that he called Mr. Williams and described to him the instruments concerning the debt due him from the Gamels and that he subsequently sent a copy of the amortization schedule for the balance owing on the purchase price, what each monthly payment was, how much of it was principal and how much was interest, the payments which were past due and the interest due thereon, up to that time. He further advised Mr. Williams that if he needed any more information, he, Mr. Jen-ni, would be glad to supply it. By letter of March 1,1969, Mr. Williams returned to Mr. Jenni the papers Mr. Jenni had furnished him, advised him that “the apparent deed of trust came as a surprise” to him and that his only involvement in the transaction was to act as an agent for the purchaser and owner, E. R. B. Land, Inc., of which Mr. Blackwell was President, and that any further inquiries should be directed to Mr. Blackwell.

Mrs. Gamel testified that at the time Mr. Williams presented her with the option to purchase contract of February 14, 1969, a discussion ensued relative to a paragraph contained thereon which reads, “Property is subject to the following deeds of trust and none other, now of record in the Recorder of Deeds Office, Hillsboro, Missouri.” She was somewhat confused on this point as is evidenced by her statement that the “none” she was referring to was the “None” written in someplace on the Option Contract. She testified that the word “ ‘None’ was there separate by itself . . . ” and when she inquired about this, Mr. Williams explained to her that this meant they didn’t go out and borrow any extra money. She testified that it seemed to her Mr. Williams brought her a different piece of paper than the Option Contract where the word “None” was written down by itself. The Option Contract contains no reference to any deed of trust other than those “now of record in the Recorder of Deeds Office Hillsboro, Missouri.” The only place the word “NONE” appears on the document is in that portion of the Option Contract which recites'that there is to be no return deed of trust. However, at this same discussion, Mrs. Gamel testified that she asked Mr. Williams if, when he gave them “this money” and they signed the papers, would that then pay off the $5,000.00 note Mr. Williams had bought from her father-in-law, the amount owed to Mr. Jenni, and give them the $2,000.00 for their equity in the property. Mr. Williams replied: “Yes, that is right.” Throughout the negotiations for the sale of the property she made it clear to Mr. Williams that they wanted to get out of the sale of the property an amount sufficient to pay off the loan to her father-in-law for the monies loaned to them to make the $5,000.00 down payment on the property, the monies they owed the Jennis for the balance of the purchase price, and $2,000.00 for their equity. Mr. Williams assured her that all of these items would be taken care of.

Approximately one month after the sale of the farm to E. R. B. Land, Inc., Mr. Jenni having been informed of the sale and being unable to get Mr. Williams to agree that the purchaser would assume the balance due on the property from the Gamels, met with Mr. Blackwell in an effort to resolve the matter. Mr. Jenni did not receive any satisfaction in this respect and instituted this litigation.

Plaintiffs adduced evidence at trial that the fair market value of the tract on the date of purchase by the E. R. B. Land, Inc., was $53,000.00.

The evidence adduced by the defendant E. R. B. Land, Inc., was that of Mr. Thurman, the attorney handling the preparation of the legal documents, and which has been referred to hereinabove, Mr. Blackwell, the President and sole shareholder in E. R. B. Land, Inc., and excerpts read from the deposition of Mrs. Gamel. The thrust of Mr. Blackwell’s testimony was that he had authorized the purchase of the $5,000.00 note and deed of trust from Mr. Gamel’s father for approximately $3,500.00 and the tract of land. Mr. Williams had advised him that the Gamels were talking of selling the land in terms of $2,000.00 or $2,500.00. He denied any knowledge of any encumbrances on the land other than the $5,000.00 note and deed of trust which he had previously purchased from Mr. Gamel’s father through Mr. Williams and testified that he at no time dealt directly with the Gamels but the entire transaction was handled by Mr. Williams. He had Mr. Williams order a Certificate of Title which showed only the deed of trust for security for the $5,000.00 loan from Mr. Gamel’s father. He had never seen the Gamels until Mrs. Gamel’s deposition was taken in California and he had never seen either of the Jennis prior to the date on which Mr. Jenni came to his office some months after the sale of the property had been consummated. He testified Mr. Williams never told him about any possible indebtedness against the property and he had no knowledge of this encumbrance. He stated that while he did not have any knowledge of the sales prices for property adjacent to the land he had purchased, he was of the opinion that the land was worth between $10,000.00 and $12,000.00 and the consideration he paid for the land was in the neighborhood of $7,500.00, if one counted the note and the interest due thereon.

At the conclusion of Mr. Thurman’s testimony, defendant’s counsel advised the court that he would like to introduce the deposition of Mr. Williams and would read it if the trial court wanted to hear it; otherwise, he was going to offer “the whole thing.” Plaintiffs’ counsel objected on the ground that Mr. Williams was not a party and the deposition revealed that he was a resident of Jefferson County. When asked by the trial court if Mr. Williams was a resident of the county, Mr. Blackwell replied that he was and that he lived in Hillsboro. The trial court inquired if Mr. Blackwell could locate him and Mr. Blackwell replied that he did not think so. The trial court then inquired if counsel had issued a subpoena for him and counsel replied that he had not, because he was relying on the plaintiffs, who had taken the witness’ deposition, to offer it and if they did not, then he would. The trial court suggested that they recess for a few minutes and that Mr. Blackwell see if he could call the witness. After the recess, Mr. Blackwell again offered the deposition of Mr. Williams because “Mr. Williams is physically unavailable as a witness. He is outside of the State of Missouri.” Plaintiffs’ counsel objected “under the provisions of Rule 57.29(b)” because the deposition showed on its face that the witness is a resident of the county and is not a party to the suit, and the other provisions which might authorize the use of the deposition under Rule 57.29(b) had not been shown. The trial court then asked if any subpoena had been issued for the witness and Mr. Blackwell again replied that none had been issued. The trial court ruled that “the deposition will not be accepted if there was no subpoena issued for the witness prior to this time.”

Mr. Blackwell thereupon advised the trial court that he wanted to testify. He was sworn and testified, as previously stated, relative to the issues in the trial of the cause. At the conclusion of his testimony he read from Mrs. Gamel’s deposition and when he had finished that, recalled himself to the stand to testify further in support of his offer of Mr. Williams’ deposition. On this occasion, Mr. Blackwell testified that it is the practice in the Circuit Court of Jefferson County not to order subpoenas through the office of the Clerk of the Circuit Court but rather, for the attorneys to obtain blank subpoenas, which he did, and that when he checked on Monday he discovered that Mr. Williams was on vacation and out of the state. One of the blank subpoenas he had obtained from the Clerk for the trial would have been used to subpoena Mr. Williams had Mr. Williams been here or had he been within reach of the subpoena. He used one of the subpoenas on Mr. Thurman, and the other two blank subpoenas were in his file at the time. Mr. Williams, through no fault of Mr. Blackwell’s, was not physically present where he could be reached by subpoena, and he was offering the deposition because Mr. Williams was physically unavailable. Plaintiffs repeated their objections and the trial court ruled that the case had been “set definitely for today for many weeks. Seems to me like the witness could have been subpoenaed,” and let his ruling stand. Defendant E. R. B. Land, Inc., then closed its case.

The Gamels offered no evidence, and it was then that the plaintiffs’ causes of action in Counts II and IV were dismissed.

The trial court’s judgment is that as of July 10, 1974, the Jennis jointly have a secured interest in the real estate in issue in the sum of $50,545.86, arising out of an indebtedness created by a note in the amount of $34,000.00 dated July 1, 1966, together with interest from and after said date at the rate of 6% per annum until paid, executed by the Gamels, and an unrecorded deed of trust securing the note and encumbering the realty in favor of the Jennis; that the secured interest arising out of the indebtedness is established as a lien on the said realty. The judgment further declares the quit-claim deeds conveying the property to E. R. B. Land, Inc., to be null and void and of no effect as to the Jennis, and that E. R. B. Land, Inc., is the constructive trustee in respect of such secured interest of the Jennis in the amount of $50,545.86, which total sum is found to be in default as of July 10, 1974, and which has been in default in part since November 1, 1968; that on February 19, 1969, the principal amount of $32,584.99 and accumulated interest thereon in the amount of $760.53 was in default, when the conveyance of the property to E. R. B. Land, Inc., took place; the lien was declared to have priority over the deed of trust securing the loan from Mr. Gamel’s father for the downpayment on the purchase price of the property. The judgment further provided that unless the total sum of $50,545.86, plus interest from July 10, 1974, is paid to the plaintiffs within 30 days of the date on which the judgment became final, the equity of redemption in the property is foreclosed and the plaintiffs shall recover the full amount with interest together with their costs of this action and costs of execution. Special execution in foreclosure was ordered issued to the Sheriff of Jefferson County after 30 days from the date on which the judgment became final, without further order of court, upon the filing of plaintiffs’ affidavit that all or any part of the indebtedness constituting their secured interest in the real property, together with costs of this suit, has not been received by plaintiffs. The Sheriff was directed to advertise and conduct a public sale under the special execution in foreclosure on behalf of the constructive trustee in accordance with law.

Only E. R. B. Land, Inc., appeals from this judgment of the trial court.

On appeal two points are presented for review: (1) that the trial court erred in refusing to admit the deposition of Mr. Williams, and (2) that the trial court erred in . entering judgment that plaintiffs’ security interest superseded the prior and separate deed of trust purchased by E. R. B. Land, Inc., from the father of Mr. Gamel.

Appellant at trial did not make an offer of proof after his request to read into evidence the deposition of Mr. Williams had been denied. Generally, in the absence of an offer of proof the point appellant seeks to present here would not be preserved for review. Elliott v. Richter, 496 S.W.2d 860, 864[1] (Mo.1973). There is, however, an exception to this general rule embodied in Rule 79.04 in the case of “plain errors” where the appellate court deems that manifest injustice or miscarriage of justice has resulted therefrom. We have, in this case, another factor we believe worthy of consideration in deciding whether to review this point in the absence of the necessary offer of proof. Although there were no findings of fact nor conclusions of law requested nor made, we conclude that in the absence of the filing of the deed of trust by Mr. Jenni in the office of the Recorder of Deeds, whether it was to be filed by Mr. Thurman or not, the trial court had to arrive at its decision on one or two of the theories contained in respondents’ petition, i.e., 1) that the knowledge of the missing witness, Mr. Williams, was the knowledge of the appellant because of the principal-agency relationship, or 2) that the appellant had actual knowledge of the existence of other encumbrances or should have been on notice to make inquiry concerning such by reason of the inadequacy of the purchase price he had paid for the property. Which one, we do not know. If on the former, the testimony of Mr. Williams was essential for appellant’s defense. Respondents offered and introduced into evidence a letter from Mr. Williams to Mr. Jenni dated March 1, 1969 —“Plaintiffs’ Exhibit No. 6” — wherein Mr. Williams said: “While the apparent deed of trust came as a surprise to me . . . ” This statement might shed some light on what Mr. Williams’ testimony might have been had the deposition been admitted. In its brief, appellant asserts that without Mr. Williams’ deposition it has no proof to counter the assertion of Mrs. Gamel that Mr. Williams had knowledge of the indebtedness to the Jennis; this, for the reason that it was Mr. Williams who handled all of the negotiations and the ultimate purchase of the tract of land from the Gamels. We decide then, that since this was an equitable proceeding, this point should be reviewed because by the trial court’s ruling appellant was precluded from presenting any effective defense to respondents’ claim, if any it has.

The reading and use of depositions in evidence at trial and the circumstances under which they may be read is set out in Rule 57.29(b). One of the grounds enumerated therein is when the “witness resides or is gone out of the state.” Rule 57.29(b)(1). It is this ground upon which appellant offered the deposition of Mr. Williams. The trial court in denying the offer stated that the deposition would not be admitted if there was no subpoena issued for the witness “prior to this time.” Mr. Blackwell, appellant’s attorney of record and the attorney handling the defense of the claim, advised the trial court that no subpoena had been issued for the witness. Subsequently, after the recess to ascertain whether Mr. Blackwell could “call” the witness, and while under oath, Mr. Blackwell undertook to explain the practice in Jefferson County — the trial judge being from another circuit and sitting in lieu of the two judges of the county who had disqualified themselves — with respect to subpoenaing witnesses and again advising the trial court that the witness was gone out of the state, the trial court reiterated its prior ruling and in doing so stated that the case had been set for trial for several weeks and “Seems to me like that witness could have been subpoenaed.”

It is the appellant’s contention that upon the showing that the witness was gone out of the state, the trial court should have admitted the deposition; that in failing to do so the trial court erred and precluded it from presenting a defense to the respondents’ claim. Respondents, on the other hand, argue that the admissibility of a deposition is discretionary with the trial court and in the absence of an abuse of that discretion the trial court’s ruling will not be disturbed on appeal. The thrust of respondents’ argument is that the appellant made no effort to obtain service of a subpoena or check on Mr. Williams’ availability until two days prior to trial; that the appellant “did not meet even the preliminary condition of Rule 57.29” because it did not establish any of the exceptions of subsections (b)(1) through (6) in that the testimony establishing these exceptions must come from the testimony of the deposing witness, the certificate of the officer taking the deposition, or the testimony of the person or officer who attempted to serve the witness with a subpoena, and in the absence of said testimony no deposition can be received into evidence regardless of any possible applicable exception listed in subparagraphs (b)(1) through (b)(6).

The refusal of the trial court to receive in evidence the deposition of Mr. Williams on the grounds stated, i. e., the failure of appellant to obtain a subpoena, was error. The grounds upon which appellant sought to introduce into evidence the deposition of Mr. Williams was that the witness was gone out of the state. Rule 57.29(b)(1). When a deposition is introduced on that ground, the party offering the deposition has the burden of establishing, as a condition precedent to its admission into evidence, that the witness is “gone out of the state.” Whether a subpoena was issued and a non-est return thereon made is irrelevant, if, in fact, the witness “is gone out of the state,” and the issuance of a subpoena followed by a non-est return is not, in and of itself, sufficient evidence to prove that the witness “is gone out of the state,” Heinbach v. Heinbach, 262 Mo. 69, 170 S.W. 1143, 1148 (1914); Francis v. Willits, 30 S.W.2d 203, 205 (Mo.App.1930), anymore than the failure to procure the issuance of a subpoena and a non-est return is evidence that the witness is not “gone out of the state.” That issue would at best be directed to whether the party offering the deposition into evidence had exercised due diligence in procuring the attendance of the witness at trial, as required by Rule 57.-29(b)(6), as a condition precedent to the use of the deposition if offered on that ground when the witness is absent. The admissibility of a deposition is determined by the ground on which it is offered and the factual basis proved by the party offering the deposition at the time the offer is made. Null v. Gray, 534 S.W.2d 823, 825 (Mo.App. 1976), Maplewood Planing Mill & Stair Co. v. Pennant Construction Co., 344 S.W.2d 629, 633 (Mo.App.1961).

While it is the general rule that the sufficiency of the evidence to support the admissibility of a deposition pursuant to Rule 57.29(b) rests largely within the discretion of the trial court, Myers v. Karchmer, 313 S.W.2d 697, 701[1] (Mo.1958), where, as here, the trial court did not rule on the question whether the evidence was sufficient to support the ground on which the offer of the deposition was made, but rather, erroneously ruled on the basis of a ground on which the offer was not made, this rule has no application. From the record in this case it is clear that the refusal of the trial court to permit the appellant’s counsel to read the deposition was because he had not had a subpoena issued for the witness, which in our opinion he was not obliged to do.

While much of respondents’ argument is directed to the “lack of diligence” of appellant’s counsel in waiting until two days prior to the commencement of the trial to determine the availability of Mr. Williams and the contention that such lack of diligence was sufficient to support the trial court’s ruling, the cases cited by respondents may be distinguished. Kagan v. St. Louis Public Service Company, 360 S.W.2d 261, 269 (Mo.App.1962) was not a case where the deposition was offered pursuant to the provisions of Rule 57.29(b)(1), wherein it is expressly provided that not only must the witness be absent without the consent, connivance or collusion of the party requiring his testimony, but that same party must also have exercised due diligence but nonetheless been unable to procure the attendance of the deponent by subpoena.

Our research has led us to no case wherein a court of this state has held that as a condition precedent to the reading into evidence at trial of the deposition of a witness who has “gone out of the state” the party offering same must show due diligence and that despite the exercise of due diligence said party was nevertheless unable to procure the attendance of the deponent by subpoena. The Rule and grounds under which this deposition was offered into evidence permits the reading of the deposition “if the witness resides or is gone out of the state.” (Emphasis supplied). Unlike subdivision (6) of paragraph (b) there is no requirement that the party offering the deposition into evidence must preliminarily prove to the satisfaction of the trial court that the witness “is gone out of the state” and that the party requiring his testimony, in the exercise of due diligence, has been unable to procure the attendance of the deponent by subpoena. We reason that had the Supreme Court deemed a condition precedent of this kind desirable the same due diligence and subpoena condition precedent would have been incorporated in the first ground under paragraph (b). Whether such a requirement is desirable is not the question before us, for it is not for the Court of Appeals to graft onto a Rule of the Supreme Court conditions which that Court did not see fit to require, no matter how worthy the condition precedent might be.

In Averitt v. Metropolitan St. Ry. Co., 151 Mo.App. 265, 131 S.W. 752 (1910) there is some dictum with respect to due diligence where a deposition was read into evidence on the statutory grounds that the witness resided in a county other than that in which the trial is held, or the witness was gone to a greater distance than forty miles from the place of trial without the consent, connivance or collusion of the party requiring her testimony. § 2904 Rev.St.1899 (Presently § 492.400.2(4)). Evidence that the witness at the time of the taking of her deposition, three years before trial, was employed in Kansas City, but her home was in Plattsburg, Clinton County, more than 40 miles from Kansas City, and that at the time she was contemplating a visit to her mother at that place, together with the fact that the plaintiff had a subpoena issuéd for her and it was returned non-est, that plaintiff’s counsel had made diligent efforts to locate her, and that she could neither be found in Kansas City nor her whereabouts ascertained. Such evidence was certainly relevant on the issue whether the witness was absent without the consent, connivance or collusion of the party requiring the testimony, even if not necessary on a question of due diligence. See: Anno.: Construction of statute or rule admitting in evidence deposition of witness absent or distant from place of trial. 94 A.L.R.2d 1172.

As we view the Rule it provides for six circumstances or “facts” which authorize the reading in evidence at trial of a deposition of a witness and each of these are, we conclude, separate and distinct grounds authorizing a party to read a deposition of a witness into evidence upon proof to support the particular grounds upon which the party relies, and we believe that this conclusion is supported by decisional law of the courts of this State.

In Will Doctor Meat Co. v. Hotel Kingsway, 232 S.W.2d 821, 824[4] (Mo.App.1950), the defendants sought to introduce and read into evidence the deposition of one of the co-defendants taken by the plaintiff but the trial court excluded the deposition when plaintiff objected on the ground that there had been no showing that the deponent was absent from the trial without the consent, connivance, or collusion of the defendants offering the deposition. At the time of the giving of the deposition the deponent was a resident of Kansas City, Missouri, visiting in St. Louis on business when he was produced by the defendants’ counsel at the office of the plaintiff’s attorneys so that his deposition could be taken. In reversing the trial court on this ground, this court said, 1. c. 824[4]:

“Since Steinbaum did not reside in the City of St. Louis where the trial was being held, it was immaterial upon the question of the admissibility of his deposition whether he had gone to a greater distance than forty miles from the place of trial without the consent, connivance, or collusion of the parties requiring his testimony. . . . Absent any other valid ground of objection, it was enough, under Section 1944 (presently Section 492.400.2), to warrant the reading of the deposition that Steinbaum was shown to have gone out of the state.” (Emphasis supplied).

See: Anno. Construction of statute or rule admitting in evidence deposition of witness absent or distant from place of trial. 94 A.L.R.2d 1172, et seq.

Respondents’ argument that proof of the facts authorizing the reading of the deposition into evidence must be established by the testimony of the deposing witness, or by the certificate of the officer taking the deposition or the testimony of the person or officer who attempted to serve the witness with a subpoena is likewise without any legal basis. For many years it has been the law in this state that those methods of proof are not the exclusive means for proving the facts authorizing the reading of a deposition under the Rule or under the statute, § 492.400 RSMo. 1969. In Doyle v. St. Louis Transit Co., 124 Mo.App. 504, 101 S.W. 598, 599[1] (1907) this court held that Rev.St.1899, c. 18, Sec. 2904 (Ann.Stat.1906, p. 1669) relating to the taking of depositions and providing that the facts which authorize the reading of a deposition may be established by the testimony of the same person enumerated in the present Rule were not conclusive as to the modes of proof, and that a party may resort to other sources to lay a proper foundation for the introduction of the deposition. The Kansas City District of this court followed the holding of Doyle in Coffel v. Spradley, 495 S.W.2d 735, 737[5] (1973) when it ruled that the facts authorizing the reading in evidence of a deposition on the ground that the defendant was dead, Rule 57.29(b)(2), could be established by means other than those enumerated in the Rule.

Furthermore, by the manner in which the trial court made its ruling we conclude that appellant’s counsel was caused to believe that the question in the trial court’s mind was not whether the witness had gone out of the state, but rather whether a subpoena had been obtained for service upon him. In this view of the trial court’s ruling any further evidence that the witness had gone from the state would have been to no avail.

Respondents, in the trial court, did not challenge the question whether Mr. Williams was gone out of the state; they relied there on the failure of the appellant’s counsel to determine the witness’ absence from the state until two days prior to the date of trial and the argument that appellant’s proof did not comply with the methods enumerated in Rule 57.29(b). Here they argue that Mr. Blackwell’s statement and testimony that Mr. Williams was gone out of the state is “rank hearsay” and that “[t]he record is devoid of any showing how appellant’s attorney had ‘checked’ on the availability of Mr. Williams, what efforts he had made to find a witness, with whom he had talked, what he had been told, . . . ” (Emphasis supplied). This testimony came in without objection during Mr. Blackwell’s testimony under oath; no cross-examination was conducted on this point by respondents. They did not raise the insufficiency of the evidence to prove that Mr. Williams was gone from the state in the trial court.

What evidence is sufficient to prove that a witness is gone out of the state so that his deposition may be read in evidence is generally left to the discretion of the trial court as respondents have heretofore pointed out. In Adkison v. Hannah, 475 S.W.2d 39, 42[5] (Mo.1972) the court, on appeal and deciding whether plaintiff had made a submissible case, took into consideration the testimony of a witness in a deposition offered by the respondents despite the appellants’ objection that there was not a sufficient showing that the witness had gone out of the state at the time the deposition was offered. The deposition was offered in the trial court under subparagraph (1) of § 492.400 subd. 2 authorizing the use of a deposition upon a showing that the witness resides or is gone out of the state. The evidence relied on for that purpose was the testimony of the defendants that for four weeks prior to the trial they got in touch with the witness by telephone at a “Kansas number.” In this case (tried in the Circuit Court of Clay County) the evidence concerning the telephone calls to the “Kansas number” together with the deponent’s testimony in the deposition at the time her deposition was given that she lived in North Kansas City and that she had moved frequently during the preceding three years, that she spent some time in Jackson and Platte Counties in the meantime, and had spent some time in the State of Kansas, was sufficient so that the court on appeal would not say that the trial court had abused its discretion in admitting the deposition.

The trial court in this case never ruled on whether this deposition of Mr. Williams was admissible or could be read in evidence for the reason that the witness had gone out of the state. Therefore, the appellant was deprived of the opportunity to either produce more evidence to support its position that the deposition was admissible on that ground or to read into evidence the testimony of the agent who handled the negotiations with the Gamels and whose testimony was, in the face of Mrs. Gamel’s testimony, most crucial to any defense the appellant might have had. Under these circumstances we conclude that the error of the trial court in excluding Mr. Williams’ deposition was prejudicial and entitles the appellant to a new trial.

We do not reach appellant’s second point nor respondents’ contention that the decree should be modified so as to cancel and render null and void the note and deed of trust dated November 26, 1966; and recorded at Book 372, pages 86 and 87 of the Records of the Jefferson County Recorder of Deeds.

The cause is reversed and remanded for a new trial.

CLEMENS, P. J., and STEWART, JJ., concur.

      . Count IV was not included in the transcript. Respondents, in their brief, advise us that it was an action whereby they sought to recover damages against all of the defendants for conspiracy to defraud the plaintiffs in an amount of $33,000.00 actual and $150,000.00 exemplary damages.

      . Title to the property was taken in the names of John Melvin Gamel and Mildred Gamel, his wife; John Clyde Gamel and David Edgar Ga-mel, as joint tenants or to the survivor of them. The quit claim deeds were executed by John Melvin Gamel and Mildred Gamel, his wife, by John M. Gamel for John Clyde Gamel as “Authorized Attorney-In-Fact Empowered to Sell the Aforesaid Real Estate,” and by David Edgar Gamel and Jams Lee Gamel, his wife.

      . Mr. Gamel did not testify at the trial but some of his Answers to Interrogatories directed to him by the plaintiffs were read into evidence as admissions against interest.

      . We do not here rule on what would be the holding in a case where there is in the record evidence that a witness was “gone out of the state” with the consent, connivance or collusion of the party seeking to read into evidence that witness’ deposition. There is no evidence nor claim that that was the situation here.


source: Caselaw Access Project

author: FLANIGAN, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Larry Lee SCURLOCK, Appellant.
    No. 10109.
    Missouri Court of Appeals, Springfield District.
    Sept. 20, 1976.

      L. R. Magee, Hines & Magee, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, for respondent.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

A jury found the defendant Larry Lee Scurlock guilty of burglary in the second degree, § 560.070 V.A.M.S., but was unable to agree upon the punishment. The court imposed a sentence of four years. Defendant appeals.

Defendant contends that the evidence is insufficient to support the conviction. The same contention was made in his unavailing motion for judgment of acquittal filed at the close of the state’s evidence. The motion was renewed and again denied when defendant rested after offering no evidence. Defendant’s contention is sound.

In State v. Berry, 526 S.W.2d 92, 95[1 — 6] (Mo.App.1975) this court stated the familiar rules governing the manner in which the sufficiency of the state’s evidence is to be gauged. Those rules will receive adherence but they need not be restated here.

In addition to its formal portions, the information charged that the defendant and one Gerald D. Scurlock, on April 11,1974, in Polk County, Missouri, “did wilfully, unlawfully and feloniously, burglariously, forcibly break and enter a trailer house located on Highway HH, the property of Robert Bradshaw, with the felonious and burglarious intent to steal, take and carry away certain goods, wares, merchandise or personal property of Robert Bradshaw then and there kept or deposited in said trailer house.”

Co-defendant Gerald D. Scurlock filed a motion for a severance, which was granted, and the case proceeded to trial against the instant defendant alone.

Although the state’s evidence was not lengthy, portions of it lack specificity and continuity. For that reason it is difficult to present an accurate summary. The evidence emanated from four witnesses: Robert Bradshaw, Kenny Hulett, Gene Miller, and Bill Morrow. The evidence would support these findings:

(1) Bradshaw, who lives in Kansas City, Missouri, owns a “60 by 12” mobile home or trailer in Polk County. It is located on Highway HH. The mobile home was “equipped to live in when [Bradshaw] is down there.”

(2) Bradshaw had sold “some acreage to a friend.” The acreage was on the west side of Highway HH. Parked on the acreage was “a little trailer.” It was about Vi of a mile from Bradshaw’s trailer.

(3) On April 11, 1974, (Thursday), Bradshaw drove his car down Highway HH toward his trailer. The reason Bradshaw was “down here that particular weekend” was that “it was a holiday weekend and I was just coming down for the weekend.” Bradshaw saw a “strange car,” a Pinto station wagon, parked in the vicinity of the acreage mentioned in (2). There were no houses “around there.” Bradshaw saw no one in the Pinto at that time. Bradshaw went on to his trailer, which involved going a distance of “between half a quarter and a quarter.”

(4) On arriving at his trailer Bradshaw found the front door open, a window broken out, a screen pushed off of it, and the back door open. The doors of the trailer were closed and locked “prior to this date”— “they always lock the doors.” Nothing had been removed from the trailer.

(5) Bradshaw then went to check the Pinto. He took the license number of the Pinto. No one was in the Pinto at that time. He looked inside the Pinto and there were “no tools or equipment or anything in it.”

(6) After checking the Pinto, and because it was “sitting there,” Bradshaw crawled over a gate to check his friend’s trailer, to see if it had been broken into. As he got over the gate he saw the Pinto “pulling out of this little gravel road there”; “when they seen my headlights they took off at a high rate of speed.” This was “somewhere around 11:00 p. m.”

(7) The Pinto “took off” while Bradshaw was at his friend’s trailer. Bradshaw jumped over the gate and “took off” in pursuit. He pursued the Pinto for 6 or 7 miles but did not catch it. He could not tell how many occupants it had because it was too dirty. “I never got close enough to identify anybody.”

(8) The next day, April 12, 1974, Bradshaw saw the Pinto “on Highway 65, just a block off Highway 65,” and called the Dallas County sheriff and the Polk County sheriff. “They then went out there and arrested them.”

(9) On April 11, 1974, Hulett was with defendant (“Larry”) and defendant’s brother (“Butch”) at the mobile home of Hulett’s sister. The three men left the sister’s home “a little after 5 or 6” and went through Louisburg and went out in the country “a little ways.” They drove around an hour or an hour and a half after leaving the sister’s home. It was getting about dusk when they went by a mobile home on HH Highway. No one was around the mobile home, “this trailer house.” While going by the trailer house “they, Larry or Butch, one of them” wanted to know who lived at that trailer and “if they was home.” Then “they said that looked like an easy place we could get into.”

(10) Hulett, Butch and the defendant went “past this little bridge” and there Hulett got out and Larry and Butch “left.” Larry and Butch came back 20 or 30 minutes later, “coming from the direction of the trailer.” “There is a hill there and they came over the hill and they started to stop, and then this other car came over the top and they took off again.”

(11) On April 11, 1974, Miller, a Polk County deputy sheriff, investigated a burglary on HH Highway in Polk County. The trailer was broken into through the front door. The storm door glass was broken and the screen was pulled loose. There were “fresh” pry marks on the rear door. This was around 10 or 11 o’clock. On April 12 the owner of the trailer contacted Miller. The owner had seen “this car” at another mobile home “a little outside Louisburg.” Miller went there and the defendant was arrested by the deputy sheriff of Dallas County in Miller’s presence.

(12) Morrow, an employee of the Dallas County Sheriff’s Department, in April 1974, participated in the investigation of the Bradshaw burglary. “At that time or prior thereto” Morrow checked a Pinto station wagon. Morrow did not recall the exact date. “It was a few days before.” The defendant was one of the occupants of the Pinto at the time Morrow checked it. Morrow does not recall what date it was that he checked the Pinto and the defendant was in it. It was “a day or so later.” Morrow was looking for the Pinto because he had received a call from a woman whose name he does not recall and she had had a breakin. Morrow stopped the Pinto because it pretty well matched the description that the woman had given him.

From the foregoing findings the jury could properly have reached the following conclusions:

(a) On April 11, 1974, a Pinto station wagon was parked within Vs of a mile of Bradshaw’s mobile home on Highway HH. This was some time prior to 11 p. m.

(b) The Pinto was parked in the vicinity of the little trailer owned by Bradshaw’s friend.

(c) The Pinto was driven from the area at a high rate of speed. It was unoccupied at the time Bradshaw first saw it and at the time Bradshaw checked it. During that interval Bradshaw went to his trailer. He found damage to the window and screen of the front door, which was open, and the back door was open.

(d) Bradshaw drove his car in pursuit of the Pinto but was unable to catch it.

(e) About dusk on April 11, 1974, defendant, with his brother Butch, and Hulett, went by a mobile home on Highway HH. While going by it defendant remarked, or Butch remarked in defendant’s presence, that he wanted to know who lived at that trailer and whether they were home and that the trailer looked like an easy place “we could get into.”

(f) The defendant and Butch let Hulett out of their vehicle some unknown distance past the trailer and were again seen by Hulett 20 or 30 minutes later coming from the direction of the trailer. The vehicle containing Butch and the defendant started to stop for Hulett but did not do so. Another vehicle came over a hill after defendant’s vehicle came over the hill and the latter vehicle “took off again.”

(g) The rear door of a trailer Miller investigated on Highway HH on April 11, 1974, bore “fresh pry marks.” Because Bradshaw testified that on April 12, 1974, he contacted the Polk County sheriff and because- Miller, a Polk County deputy sheriff, was contacted on April 12, 1974, by the owner of the trailer, it may be a reasonable inference that the trailer which Miller inspected was Bradshaw’s trailer.

(h)Some time in April 1974 the defendant was observed by officer Morrow to be an occupant of a Pinto station wagon.

Of course there is no direct evidence that the defendant at any time, alone or in company with another person, broke and entered Bradshaw’s trailer with the requisite intent.

Whether or not the circumstantial evidence is sufficient to support the conviction must be ascertained by the application of the test set forth in State v. Thomas, 452 S.W.2d 160, 162[1 — 3] (Mo.1970). Thomas holds that the facts and circumstances relied upon by the state to establish guilt “must not only be consistent with each other and with the hypothesis of defendant’s guilt, but they must also be inconsistent and irreconcilable with his innocence and must point so .clearly and satisfactorily to his guilt as to exclude every reasonable hypothesis of innocence.”

The circumstances need not be absolutely conclusive of guilt and they need not demonstrate an absolute impossibility of innocence. State v. Taylor, 445 S.W.2d 282, 284[5] (Mo.1969).

Analysis of the state’s evidence discloses the following shortcomings of varying significance:

(1) There was no showing that Bradshaw’s mobile home was entered. The fact that nothing had been taken from it may lend support to an argument that it had not been entered.

(2) There was no showing that Bradshaw’s mobile home contained “goods, wares, merchandise, or personal property” unless that is to be inferred from Bradshaw’s testimony that it was “equipped to live in” when he was there and that nothing had been removed from it.

(3) A finding that Bradshaw’s trailer was the subject of a burglary or an attempted burglary, which occurred on April 11, 1974, would have to be based upon one or both of the following:

(a) Miller’s testimony, unobjected to, that the pry marks which he saw at 10 p. m. or 11 p. m. on that date were “fresh.”

(b) Bradhsaw’s testimony that the doors were closed and locked “prior to that date” (April 11, 1974). If that testimony is construed to mean that it was closed and locked on April 10, 1974, that is inconsistent with Bradshaw’s testimony that he was “just coming down on the weekend,” (April 10 was Wednesday). It is a reasonable inference that he lacked personal knowledge of the condition of the trailer on April 10.

(4) There was no showing that the mobile home or trailer, concerning which defendant or his brother made the remarks set forth in Finding 10, was Bradshaw’s mobile home or trailer. Although the state’s evidence showed that Bradshaw’s trailer was located on Highway HH, as was his friend’s trailer, there was no showing whether or not other trailers were located on that highway in Polk County.

(5) There was no showing that on April 11, 1974, defendant was at any time in the Pinto which Bradshaw saw on that date. There was no showing that the Pinto which Bradshaw observed contained anyone other than its driver nor was there any showing that the occupant or occupants of that Pinto had any connection with the breaking which occurred at Bradshaw’s trailer.

(6) There was no showing that the vehicle in which Hulett, Butch and the defendant rode was a Pinto.

(7) There was no showing that the place on Highway HH “past this little bridge," where Butch and the defendant let Hulett out, was in the vicinity of defendant’s trailer or his friend’s trailer, or the trailer concerning which the remarks set forth in Finding 10 were made.

(8) There was no showing that the vehicle which Hulett saw come over the hill, after the vehicle containing Butch and the defendant came over the hill, was the vehicle Bradshaw was driving.

(9) There was no showing that the Pinto which defendant was occupying at the time it was cheeked by Morrow was the same Pinto which Bradshaw had checked on April 11 and from which he had obtained the license number.

(10) There was no showing that Morrow’s observation of the defendant as an occupant of a Pinto took place before, on, or after April 11, 1974, although it did take place sometime that month.

The failure of the evidence to show that Bradshaw’s mobile home was entered is, standing alone, fatal to the conviction. But even if it be arguable that the evidence permitted the jury to make a finding of entry, the other deficiencies in the evidence, in their totality, are such that the test set forth in Thomas, supra, is not met. It cannot be said that the facts and circumstances relied on by the state “point so clearly and satisfactorily to his guilt as to exclude every reasonable hypothesis of innocence.” See State v. Morse, 515 S.W.2d 608 (Mo.App.1974); State v. Potter, 530 S.W.2d 268 (Mo.App.1975); and State v. Eye, 492 S.W.2d 166 (Mo.App.1973).

Although this court has determined that the evidence is insufficient to support the judgment of conviction, it is unable to conclude, on the basis of the record, that it would not be reasonably possible for the state to adduce sufficient evidence at another trial. Accordingly, the cause should be remanded for new trial rather than reversed outright. State v. Patton, 308 S.W.2d 641, 644[8] (Mo. banc 1958); State v. Wade, 531 S.W.2d 726, 730[4] (Mo. banc 1976).

The judgment is reversed and the cause remanded.

All concur.

      . During his testimony Bradshaw used the terms “mobile home” and “trailer” interchangeably.

      . “An entry is necessary in the consummated crime of burglary, but not in that of attempted burglary; the reason is simple, — if an entry were made, the crime would be burglary.” State v. Hadley, 364 S.W.2d 514, 517[3] (Mo. 1963). See also State v. Miles, 510 S.W.2d 787 (Mo.App.1974).
      For a discussion of “entry” as an element of burglary see State v. Pigques, 310 S.W.2d 942, 945[2-5] (Mo.1958).
      The following language appears in 13 Am. Jur.2d Burglary § 50, p. 352: “A burglarious breaking and entry is not shown, however, where the evidence is entirely consistent with the view that the intruder was frightened away by the appearance of the police before he had effected an entry; there was nothing stolen and no conditions existed which supplied reasonable inferences that any part of a person’s body intruded into the building, or that any instrument was inserted for the purpose of consummating a theft, as distinguished from a mere breaking.”


author: DOWD, Judge.

text:
    In re the MARRIAGE OF L_ M_, Petitioner, Respondent, and G_M_, Respondent, Appellant.
    No. 37444.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 21, 1976.
    Mcllrath, Black & Williams, Gary R. Black, Sr., Flat River, for respondent-appellant.
    Maurice Graham, Fredericktown, for petitioner-respondent.
   DOWD, Judge.

A custody dispute. The primary issue on appeal is whether the trial court’s decree dissolving the marriage of the parties erred in granting custody of the only child of the parties to the mother, respondent herein. We affirm the judgment of the trial court.

Respondent filed a motion to dismiss the appeal contending that appellant’s brief did not contain a fair and concise statement of the facts in violation of Rule 84.04(c). The motion is denied.

Only a brief summary of the facts is necessary. L_ M_ and G_ M_ were married on February 18, 1968. They have one child, a daughter, J_ born July 30, 1968. The parties separated the day after Thanksgiving in November of 1974. L_ M_ admitted adulterous conduct in her pleading.

At trial it was adduced that L_ M_, age 26, was a registered nurse and was then employed at Mineral Area Osteopathic Hospital. She met Dr. D_ in September 1974, and began dating him in October, 1974. They plan to marry following the dissolution of marriage.

It is within the sound discretion of the trial court to determine what is in the best interest and welfare of a child in a custody dispute. The court of appeals will not disturb a child custody decree of a trial court unless there has been an abuse of discretion or unless the court is convinced that the child’s welfare requires some other disposition than that made by the trial court. Larison v. Larison, 524 S.W.2d 159, 160 — 61[1—2] (Mo.App.1975). The primary concern is the child’s welfare. L.H.Y. v. J.M.Y., 535 S.W.2d 304, 306[4] (Mo.App. 1976). In a custody dispute the trial judge is frequently faced with the problem of selecting from two parents who have not lived up to high moral standards. He must select the better of the two parents with the sole aim being the best interest of the child. After reviewing the record, we find no reason to disturb the trial court’s award of custody.

The mother’s adultery does not alone mark her as unfit to have custody. It is the effect on the child, and exposure to unseemly conduct, which is the major consideration. In re Marriage of Cook, 532 S.W.2d 833, 837[9] (Mo.App.1975); Klaus v. Klaus, 509 S.W.2d 479, 481[9] (Mo.App. 1974). See also L.H.Y. v. J.M.Y., supra. Appellant places great emphasis on the fact that respondent and her paramour engaged in oral sexual relations. However, there is no evidence that the child had any knowledge of her mother’s sexual conduct. The child stayed with her grandmother or her father on the nights her mother spent with the doctor. “We need not condone [respondent’s] conduct to conclude it does not establish unfitness nor detriment to the child’s welfare.” Klaus v. Klaus, supra, at 481. And aside from acts of adultery which were not committed in the child’s environment, there is no evidence that she is otherwise an unfit mother. She had been a fine parent and had taught her child many things, such as how to use eating utensils, distinguish colors, recite nursery rhymes, embroidery and helped her learn parts for school and church plays. In contrast, there is evidence that the child’s father, who contends his wife’s immorality renders her an unsuitable model for a child, is not himself a paragon of virtue. He would drink to excess prior to the marriage separation, and when intoxicated would become verbally and physically abusive. He confessed that on one occasion while intoxicated he probably urinated on a woman who was seated in an automobile. He contracted venereal disease while married. He has shoplifted and was disciplined in college for writing an obscene letter. These facts, plus the rebut-table presumption that a young child is better placed with its mother, L.H.Y. v. J.M.Y., supra, 535 S.W.2d at 307[7], lead us to affirm the decision of the court below.

Appellant further contends that respondent committed perjury on the witness stand and is thus incapable of teaching her child the importance of being truthful. We have examined the transcript for examples of perjury cited in appellant’s brief and find there were none.

The judgment is affirmed.

WEIER, P. J., and RENDLEN, J., concur.


author: RENDLEN, Judge.

text:
    In re the MARRIAGE OF B_ A_ S_, Petitioner-Appellant, and G_R_ S_, Respondent.
    No. 37127.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 21, 1976.

      Ellsworth Cundiff, St. Charles, for petitioner-appellant.
    Charles P. Todt, Clayton, for respondent.
   RENDLEN, Judge.

This appeal is from the custody award of three minor children incident to a judgment dissolving the parties’ marriage and from denial of appellant’s claim for attorney’s fees.

Appellant contends that young children, especially girls, are best placed with the mother, that the custody award was not to the best interests of the children and was against the greater weight of the evidence. Section 452.375 RSMo 1969, Laws 1973 (effective January 1, 1974) presents a nonexclusive mandatory list of relevant factors for the court’s consideration in custody cases. It is argued the trial court failed to properly weigh these factors particularly the wishes of the children, the interaction and interrelationship of the children with their parents and the children’s adjustment to their home, school and community.

We review the case on the law and the evidence under Rule 73.01 giving due regard to the trial court’s opportunity to adjudge the witness’ credibility and aware that the judgment may not be set aside unless it is against the weight of the evidence, wrongly declares or applies the law, knowing that our power to set aside a decree as against the weight of the evidence must be exercised with caution and on “a firm belief that the decree or judgment is wrong.” Murphy v. Carron, 536 S.W.2d 30, 32[2] (Mo. banc 1976). It is clear from the record both parents manifest a deep interest in the welfare of their children and each express an earnest desire to serve as custodian.

The parties, married in 1961, have three children, a daughter C_ 12, and two sons, B_11 and E.____ 8. We find no indication of marital strife prior to 1970 when they purchased a home in St. Peters, Missouri. Personal discord soon surfaced, followed by marriage counselling, reconciliation efforts and finally a March 1973 agreement to separate in June at the end of the school term.

Appellant, by prearrangement, moved the children and some furniture to St. Charles. Some quarreling occurred concerning temporary custodial arrangements; but the children, living principally with their mother through the summer of 1973, stayed five nights and two days each week with their father, under a plan designed to accommodate the parents’ working hours. After September the children remained in the general custody of their mother, staying Tuesday through Thursday nights with her and three weekends per month with the father until the divorce in May 1975.

For eight months following the separation the husband, though requested, provided little or no support for appellant or the children, while with her stating: “He didn’t see any reason why he should." In April 1974 he was ordered to pay child support of $60 per week but from time to time arbitrarily deducted amounts from the weekly payments for items such as car insurance premiums for the automobile in appellant’s possession and the cost of shoes or similar purchases for the children.

In February of 1974 appellant moved to a more suitable apartment less than one-half mile from her place of employment.

While at work, appellant could conveniently communicate with the children by phone and sometime before the divorce changed her hours to 6:30 a. m. through 2:30 p. m. permitting her to be with the children on return from school. The respondent-husband points out she could not be with the children at breakfast but the evidence shows breakfast for the children was arranged each morning before she left, the children’s clothes laid out and plans made for the day. Further, as the mother explained, the money she received was insufficient to adequately care for the children and she needed to work. It seems unbecoming to fault appellant for this effort; and if the father feels strongly she should not work, which requires her to be away during the children’s breakfast time, this could be readily remedied by increased support payments. As the husband also works, neither can legitimately argue the other’s disqualification as custodian because of their respective employment.

The living accommodations of each are suitable for the children; and while the jointly-owned home in St. Peters occupied by the husband is more commodious than appellant’s apartment, the court has ordered the home “divided equally between the parties,” presenting a problem for his custodial claim.

Appellant permits the children to have friends in the home for meals and overnight stays. Appellant entered both sons in little league baseball and attended most if not all of their games. She also enrolled the younger son in cub scouts, bought his uniform and furnished the monthly dues.

The children keep numerous animals and the only difficulty in this area developed when, without consulting the mother, the father delivered a rabbit that was unsuitable as a pet. A more serious problem occurred when the father, aware of the children’s love for their pets, attempted to poison their minds against their mother, saying if the children lived with her they would not be permitted to have animals and she will marry somebody who is “real bad.”

Witnesses for appellant included the fifth grade teachers who testified that B_ was punctual, as clean and neat as other children, participated well in activities, was well-disciplined, courteous and respectful and although at the beginning was not working up to his grade level, improved after appellant’s conference with the teachers. Neither of these teachers had ever seen the child’s father.

E_⅛ third grade teacher described his manner of dress and personal appearance as much like other children in the class, and though he had been below his grade level in some areas, several months after the conference with his mother E_also improved academically. Further, he was not a discipline problem, treated the teachers with respect and was apparently a very normal child.

An employee of the Howard Johnson Restaurant had seen the children on numerous occasions and stated they appeared normal, clean and neat. Having observed the children with their mother, the witness testified: “She disciplined them but never mistreated” them.

The minister of the Calvary Evangelical Methodist Church of St. Charles where appellant had attended for a year confirmed that the children attended Sunday school and church regularly when with the mother and she attended regularly at other times. He also testified the mother and the three children were clean and neat in their appearance. This testimony concerning the children’s appearance and conditions in appellant’s home were generally corroborated by the father’s witness, Mr. Darrill Beebe, a social worker for the St. Charles County Family Services.

Though the husband charged the children were dirty and their clothes torn when they came to him on weekends, this evidence came exclusively from him and his mother who admitted attempts to persuade the children to choose her son, the respondent-husband as custodian. Respondent and his mother produced a number of articles of dirty and torn clothing claiming they were those of the children but appellant stated she had not seen most of the items and the clothing she provided the children was usually kept at her home and that provided by the father at his.

During the trial, in March 1975, the parties agreed the court should examine the 12 year old daughter and the 11 year old son. The 8 year old child did not appear in the chambers. The testimony of that examination is most revealing and important to our decision.

TRIAL COURT’S INTERVIEW OF THE CHILDREN

The 12 year old daughter explained she was doing better in school as time went on and described living conditions at the home. She stated a part of her job was to take the clothes to the laundromat, fold them and bring them home where her mother usually ironed them.

She testified her brothers played outside a good deal and would get dirty and this was true whether at her mother’s or father’s home. The clothes the children wore at the mother’s or father’s house were the same or similar.

She also described matters of grave concern to this court. The father-respondent has repeatedly attempted to poison the minds of the children against the mother. The following responses to the court’s non-leading questions tell us much about the parties:

Q. “Has anyone tried to influence you as to whose custody you should be in?” A. “Yes.”
Q. “Who has done that?”
A. “My father.”
Q. “What has he done in that respect?”
A. “He tells us that my mom is no good and if we live with her I won’t have any animals and she will marry somebody real bad and they will beat us and everything and stuff like that.”
Q. “How often does he do this?”
A. “Mostly every weekend when we come out there.”
Q. “What are your feelings toward your father and your mother?”
A. “Well, I like them both and everything. It’s just I get sick of hearing my dad talk about my mom, criticizing her and stuff and I don’t like it."
Q. “Does your mother or anyone in the household than your mother say anything critical of your father?”
A. “Never. Sometimes, you know, say something like tell her that he called her a name or something and she will say, T don’t want you talking about your father like that.’ She won’t let me talk about it.” (Emphasis ours.)

The child stated that she would prefer to stay with her mother and felt that spending three weekends a month with the father was too much as she would prefer to spend more free time with the mother.

The court then asked her if she had seen anything improper at the mother’s or father’s home to which she answered that at the father’s home the grandmother “has taken over the place of a mother and I don’t think she should,” and further that:

“And every time I ask if I can go somewhere I always ... my dad always goes, ‘Ask your grandmother,’ and I don’t think its right because if we have to live with him, all she should be used for is a grandmother not a mother.”

The court then asked concerning matters she might consider improper in the mother’s home and she answered that she gets tired of having chicken all the time stating: “My mom gets chicken all the time and I go over to my dad’s house and we have chicken and I’m tired of chicken but I like it still.” Pressing this inquiry, the court asked concerning improper associations of either parent with other men or women. The child answered: “My dad never goes out or anything and my mother goes out about once a week and I don’t think it’s very bad,” going on to explain that during the first months of the separation her mother went out only occasionally, returning usually about 11 o’clock and a baby sitter was always employed. The court then asked:

Q. “All right, do you know anything about your mother having whether she did or did not associate with other men during the time your mother and father were living together. Did you know anything along that line?”
A. “No.”
Q. “You did not ?”
A. “My dad tells me that she did but I don’t know. I don’t think she did.” (Emphasis supplied.)

He then directed attention to the matter of morals asking if she had observed anything immoral in the conduct of either the mother or the father to which she answered that her mother and father “don’t get along together.”

The daughter related that on one occasion her father pushed her mother against the bookcase and she started crying and when her mother got up he started pushing her again.

On the subject of cleanliness she explained that they had to take baths at her father’s house and at her mother’s house she took “showers and wash my hair.” As far as the children getting dirty and playing she said “we don’t have to change clothes unless we go to somebody’s house because they are always dirty from playing.”

Q. “Is this the same whether you are at your father’s or mother’s?”
A. “Yes.”

When asked her personal preference she expressed a desire to live with her mother.

The court then examined the 11 year old son who stated he was making fairly good grades in school, that he was being well-taken care of in both homes, but at his dad’s house “we got to get dressed up and everything to go places and stuff and over here we don’t just have to get all dressed up and everything.” He also stated his father tried to influence him as to which home he should prefer:

Q. “And what has your father done or said to try to influence you?”
A. “He says my mom doesn’t take near as much care as my dad and he says he keeps — he watches over us and stuff and my mom doesn’t hardly do that.”

Then he stated that his father does “keep an eye on us more” than his mother does. He said his mother tried to influence him by “getting me stuff and — and taking us some places.”

It is incumbent on the trial court conducting interviews under § 452.385 RSMo.1969, Laws 1973, to avoid the role of advocate. Impartiality is an indispensable ingredient and the vulnerable child must be protected from any sign of bias. While the court rarely abandoned its neutral stance, only occasionally leading the child toward harmful information concerning the mother, the questions were answered fully and forthrightly, lending credence to the contention the mother has been a good parent who strove to protect the children’s feelings and relationship with their father. In contrast, the father attempted to prejudice the minds of the children.

From the record the husband appears a strong-willed person whose persistent, self-serving and often nonresponsive answers tell us something of his personality. Similarly, his mother Mrs. A- S-demonstrated a strong personality, admitting attempts to influence the children’s custodial preference and it is she whom the husband would bring to occupy the role as mistress of the house. This maternal grandmother, 66 years of age, claims to be in good health but admits she is taking tablets for high blood pressure and occasionally suffers from arthritis.

Darrill Beebe, who at the court’s instance conducted an investigation and home study, testified as to child-parent relationship, living arrangements, financial and general fitness of each parent as custodian. In his opinion the father was too strict with the children; there was evidence he has used a belt and at times threatened its use as a disciplinary measure, had pulled the children’s hair and “thumped them hard with his knuckles on top of their heads.” “He becomes very angry when they disobey or do not mind and often disciplines in a fit of anger by physical reaction or verbal abuse.” As Mr. Beebe described it, Mr. S_was an “over firm person. Very strict. Perhaps more strict than desirable.” Appellant aptly stated: “You can’t raise children on bitterness and hate.” Respondent admitted some of these things but stated they were done in a very limited way. Appellant had stated her children’s well-being is more important to her than anything else in the world and Beebe’s report shows “she feels that they are happier with her since they are close to many friends in the neighborhood and school.” In his opinion “Mrs. S_ seems to possess a deep understanding and insight into the respective needs of the children.” His comment concerning the father was:

“[H]e tends to lack insight into the needs and feelings of his children ... He does not appear to have understanding of their individual motivation.”
* * * * * *
“His behavior in the past has shown a limited ability to understand the children’s respective personalities and motivate them in ways other than harsh discipline. The children have expressed a desire to be with their mother, and the worker feels this is quite significant. Since the children have shown no major disruption in their lives other than poor appearance and some rowdiness due to lack of discipline, it is felt that the present arrangement with their mother should be continued.”

His decision was based “upon observations of her insight into the children’s needs and her ability to provide a happy, stable home in which the children appear to be very secure.”

The father, challenging the mother’s suitability, points to the fact she admitted extramarital affairs with seven men during the period 1973 through 1975, though none occurred at the home and the children were unaware of any of the intimacies. Mrs. S_admitted the affairs to Mr. Beebe and again at trial, stating they occurred while the parties were married and at least on two occasions before the separation. During her cross-examination there was some confusion as to statements made in deposition but at trial the witness frankly admitted her intimacies and the record belies respondent’s contention these include other men whose names she could not remember.

Respondent admitted his daughter preferred to stay with appellant but charges the children were neither clean nor properly clad by her. This contrasted sharply with testimony of independent witnesses, i. e. the teachers, the minister and the restaurant employee. Though the father and maternal grandmother insist the children bathe more often and are better clothed when with the father, it seems apparent both parties provide adequate clothing, hygienic conditions and suitable homes. Interestingly, after the separation the mother on three occasions went to the father’s home and gave it sorely needed cleanings.

The father’s conduct was not above reproach as he admitted calling his wife a “whore and a bitch” and in one instance grabbed her and threw her in the bookcase only leaving when she threatened to call the police. These episodes seemed to spring from jealousy or temporary rage, provoked by her dating other men. On the other hand Mrs. S- complained that he showed very little affection during the years of their marriage. Appellant admitted her intimacies with other men but believed her dating during the separation of almost two years did not adversely affect the children. She conceded that from time to time her “dates” called to see her at the home and one of them occasionally had meals there. No acts of adultery were committed in the home or in the presence of the children.

Generally it is recognized a mother is deemed to be the one best able to care for a child of tender years. S.G.E. v. R.L.J., 527 S.W.2d 698, 703[4] (Mo.App.1975); Johnson v. Johnson, 526 S.W.2d 33, 37[7] (Mo.App.1975). Adultery or promiscuity standing alone is insufficient to stigmatize a mother as an unfit custodian. The relevance of such activity is its effect if any upon the child. In re Marriage of Cook, 532 S.W.2d 833, 837[9] (Mo.App.1975); McClarnon v. McClarnon, 528 S.W.2d 795, 796[2] (Mo.App.1975); Klaus v. Klaus, 509 S.W.2d 479, 481[9] (Mo.App.1974). As previously discussed, there is no evidence the children were aware of the mother’s adulterous conduct but she did display some affection, including greeting friends with a kiss and holding hands at the home. There was no showing of adverse effect on the children nor is this the type of conduct occurring in L.H.Y. v. J.M.Y., 535 S.W.2d 304, 307[9] (Mo.App.1976), in which the mother “has permitted her affairs of the heart and body to interfere with her taking care of her own son.” Cases dealing with this issue have spoken in terms of the children’s awareness of the parent’s immoral conduct and while we find no evidence of intimacies occurring in the home or in the presence of the children, this is not to say the morals of a parent are not a factor to consider in awarding custody, V.M. v. L.M., 526 S.W.2d 947, 949-50[6] (Mo.App.1975). However, except for appellant’s affairs with men other than her husband, she has not been shown an unfit mother or disqualified as custodian. The children have lived with the mother during the two years of separation and the pattern of custody should not lightly be discarded. Though the father enjoyed regular extended periods of temporary custody, appellant-mother has been the primary caretaker and custodian of the children all their lives, responsible for their health, personal and educational needs. Significantly, respondent tacitly agreed appellant should retain the primary custody at the time of the separation in June of 1973, through the 1974 proceeding for allowances pendente lite and until the time of dissolution. See Zigler v. Zigler, 529 S.W.2d 909 (Mo.App.1975).

As previously noted, a mother is generally viewed with favor as custodian for children of tender years. “[T]his is not a presumption of law but a recognized fact of life based on human experience.” McCallister v. McCallister, 455 S.W.2d 31, 34[2] (Mo.App.1970). “Any departures from that usual award of custody have been described by this court as . ‘aberrations from normalcy’ . . . where such variance occurs ‘there must be a finding, evidentially supported, that the best interest and welfare of the children are served by a departure from [a] normal pattern of family relationships.’ ” S.G.E. v. R.L.J., supra at 703[4]; Baker v. Baker, 475 S.W.2d 130, 133[2] (Mo.App.1971). Since the separation appellant has maintained a home, supported and cared for the children with little assistance from her husband during the first eight months. She has provided supervision for school work, little league, cub scouts, church and Sunday school. Finally, while the extramarital affairs of the mother are to be condemned not condoned, it is intolerable the father should systematically seek to foster disrespect and destroy the children’s affection for the mother. This can be a ground for denying custody to the father as continued association of children with both parents, wherever not forbidden by harmful circumstances, is desirable and to be strongly protected. See Hensley v. Lake, 274 S.W.2d 493, 495[3] (Mo.App. 1955), stated somewhat differently, “conduct of one parent which seeks to instill fear, disrespect or hatred of the child for the other is most strongly condemned. It is sufficient ground for ordering a change of custody.” S. v. G., 298 S.W.2d 67, 76-77[13] (Mo.App.1957). As stated in Kaplun v. Kaplun, 227 S.W. 894 (Mo.App.1920): “It is of that age when most sensitive to influence, and no argument can arise over the proposition that it is detrimental to the child to have any one, especially its father, speak abusively and disrespectfully of its mother.” The court in P.D. v. C.S., 394 S.W.2d 437, 445[10] (Mo.App.1965), discussed the matter in these terms:

“[0]ur courts so severely condemn any conduct on the part of one parent which is calculated to, or has the effect of, instilling in the child fear, disrespect or hatred for the other parent that it frequently is said that such conduct may be sufficient to justify and require a change of custody [cases cited] regardless of whether or not the condemned result is intended by the offending parent.”

The fact the husband’s efforts here have not produced estrangement does little to commend the conduct.

Considering the record in its entirety, we feel the best interests of the children will be served if they remain in the custody of their mother. Our reticence to reverse is outweighed by the primary burden to determine what is best for the children. We find the trial court erred awarding custody to the father and the judgment as to custody is reversed and the cause remanded. The court is directed to enter judgment awarding the general care, custody and control of the minor children to appellant and that respondent may have temporary custody on alternate weekends from 9 a. m. Saturday until 6 p. m. Sunday, on alternate legal holidays and for one continuous month during the summer months so as not to conflict with the children’s school schedule. That the parents be admonished neither should by word or act attempt to instill fear, disrespect or hatred for the other in the minds of the children. That the cause be opened for further evidence on the issue of child support and the court make such orders for support as may be proper thereon.

Finally, appellant contends the trial court erred in failing to grant her attorney’s fees, expenses and costs. A primary consideration, with other relevant factors for allowing attorney’s fees, is whether the claiming party possesses sufficient means to prosecute the suit. Larison v. Larison, 524 S.W.2d 159,161[11] (Mo.App.1975); L.J.S. v. V.H.S., 514 S.W.2d 1, 9[15] (Mo.App.1974); McGinley v. McGinley, 513 S.W.2d 471, 473[7] (Mo.App.1974). If a sufficient disparity of means to pay appears, a party, here the wife, may look to the other for payment of attorney’s fees, McGinley v. McGinley, supra. Though the joint property consists of $6,000 equity in real estate plus household goods, the husband listed savings of $124, life insurance with $600 cash value, an automobile worth $2,000 (contrasted with appellant’s $200 Datsun) and take home pay of $781.24 compared to appellant’s net monthly pay of slightly more than $320.

Appellant seeks $1,215 additional attorney’s fees having been previously allowed $250. We reverse and direct the trial court enter its order allowing appellant $500 for attorney’s fees.

The cause is reversed and remanded for further action to carry out the orders herein contained.

SIMEONE, P. J., and GUNN, J., concur.

      . The transcript contains no account of the proceeding for allowance pendente lite and our information comes from the testimony of the parties.

      . By stipulation the home study was admitted as evidence.

      . The husband testified the younger son became ill, called him at work and he took the child to the hospital. Learning this, the mother went to the hospital complaining she should have been notified. It eventuated the child was neither hospitalized nor seriously ill and the occurrence has no strong bearing on the case.

      . A friend of appellant, one G_B_ driving “through” on a trip to Glenwood “was supposed to be there the night before but they didn’t get in And since he didn’t show up the night before I didn’t figure he was coming and at 5:30 he was at the door, stopped on his way through. Stopped to say hello and they were going right on. I had to go to work. I had to be to work at 6:00 o’clock.” She was dressed in a “heavy” nightgown and visited with him for about five minutes in the children’s presence.


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Walter Lee WESTMORELAND, Appellant.
    No. 36943.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 21, 1976.

      Dennis Neil Smith, Asst. Public Defender, Clayton, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Walter Lee Westmoreland was found guilty by a jury of murder in the second degree and sentenced to imprisonment for a term of eighteen years. He has appealed from the ensuing judgment. We affirm.

Appellant does not challenge the sufficiency of the evidence. It is sufficient to state that a jury reasonably could find that on April 12, 1974, in St. Louis County, appellant shot and killed Chester L. Dent. Certain additional facts will be related in connection with issues presented on this appeal.

Janet Sanders was “living” with appellant, and on the day of the homicide Chester Dent came to her apartment and asked to talk to Nancy, his wife, from whom he was separated and who was Janet’s sister. She asked Dent to leave and he did so. Janet, and others at the house, which included Nancy and appellant, then went to a nearby real estate office where Janet’s mother worked and Dent followed them. A disturbance there occurred and appellant shot and killed Dent. Janet testified that after the shooting she went to where Dent was lying and at that time he was still alive. She looked for weapons and saw none. She further testified that after conferring with Roscoe Johnson, one of the persons who had gone to the real estate office she placed in Dent’s hand a knife which she had previously obtained at her home and put in her purse.

In Point I appellant assigns as error the admission in evidence of the testimony of Janet that she placed a knife in Dent’s hand because “such act was neither part of the res gestae, nor act of defendant, nor attributable to him, but merely the act of a third party, acting alone and, therefore irrelevant and immaterial.”

We first note that the testimony of Janet to which this objection was directed did not pertain to the proof of a homicide by appellant. In fact, in his testimony appellant admitted that he did the shooting that caused Dent’s death. Therefore, the cases cited by appellant (for example, State v. Talbert, 454 S.W.2d 1 (Mo.1974)) to the effect that “a statement or act of a third party made out of the presence of the defendant is not admissible in the absence of the showing of a conspiracy,” are not in point because they pertain only to acts or statements of a third party to prove the commission of the charged offense. The testimony in this case pertained to an issue of self-defense, and whether Dent had a weapon in his hand, and if so for what reason, was material and relevant to that issue. When the police officers arrived there was a knife in Dent’s hand. If that knife had been placed there after the shooting, as Janet testified, the State was entitled to show this to disprove appellant’s claim of self-defense. The trial court properly admitted this testimony.

During oral argument to the jury the following occurred:

MR. DITTMEIER [Prosecutor]: Don’t picture him sitting quietly here like he is now. Picture him that day when Chester Dent was looking at his wife and put that gun to his temple and shot him.
MR. SCHAINKER [Defense Counsel]: I object to that, Your Honor. May we approach the bench?
THE COURT: Objection sustained. (The following was heard at the bench out of hearing of the jury)
MR. SCHAINKER: Your Honor, I object to the last, putting the gun to the temple as prejudicial and inflammatory argument on the part of the prosecutor. He is conducting an experiment. We have never had any expert in to testify to that. No witness testified or made an experiment of that nature in this courtroom. It is totally outside the scope of the evidence. It is prejudicial and I move for a mistrial.
THE COURT: It is overruled. Let the record show all he has done is pick up the gun and pointed it and pulled the trigger.
MR. SCHAINKER: I ask the jury to be admonished to disregard it, Your Hon- or.
THE COURT: The jury will be so instructed.
* * * * * *
(The following was heard within hearing of the jury)
THE COURT: The jury will disregard the display by Mr. Dittmeier.

It is not clear as to precisely what the prosecutor did. But, assuming that he picked up the murder weapon, held it to his temple, and pulled the trigger (an extremely foolish act), there was evidence that this was the way the homicide occurred. The trial court sustained appellant’s objection to the display, and admonished the jury to disregard that display. In his Point II appellant asserts as error the refusal of the court to declare a mistrial.

The display was part of the argument as to which the court has considerable discretion. State v. Wright, 515 S.W.2d 421 (Mo. banc 1974). Also, granting a mistrial is a drastic remedy not to be taken unless the incident is so grievous that the prejudicial effect can be removed no other way. State v. Smith, 431 S.W.2d 74 (Mo.1968). We cannot say with any confidence that the display was improper under the circumstances. The trial court viewed the occurrence and concluded that the requested remedial action, other than a mistrial, was sufficient and we cannot determine as a matter of law that the trial court abused its discretion.

The remaining five points in appellant’s brief pertain to oral argument by the prosecutor. Points IY, VI, and VII pertain to matters which were not assigned as error in the motion for new trial. Appellant asserts they constitute plain error within the meaning of Rule 27.20. We have reviewed carefully the comments of the prosecutor as to whether they constitute plain error, and collectively or individually they do not. We have no occasion to mention them further.

There was evidence that at times Chester Dent, the victim, carried a gun. In commenting on this in relation to the issue of self-defense, the prosecutor said: “He [Dent] took it [the gun] when he was going to get the receipts from the laundromat, when he was carrying money. Other than that, there was no evidence at all that Chester Dent was dangerous. Anything Chester Dent had ever done of a violent nature would have been admissible in this —.” The Court sustained appellant’s objection, and directed the jury to disregard the comment, but it refused to grant a mistrial. In his Point III appellant assigns the refusal to grant a mistrial as prejudicial error.

We need not restate the applicable rules relating to the discretion of a trial court in granting a mistrial because of an incident occurring during oral argument. We adopt what we have said in ruling on Point II as dispositive of this Point.

In commenting on the testimony of Janet Sanders, with whom appellant had been “living,” and who testified that after Dent had been shot she had placed a knife in his hand, the prosecutor said: “She returns and sticks a knife in his hand. Why? To protect Westmoreland. And, none of these witnesses in here were pillars of the community. I am the first to tell you that. She did that to protect Westmoreland. I suspect she would have never have come in here except Westmoreland, the man who claims he was so frightened he had to act in self defense, started saying he was going to kill the witnesses.” The objection, which was overruled, was that it was “totally outside the record.” Point V on this appeal is that “said statement was totally beyond the scope of the evidence and * * * it prej-udicially implies knowledge of some evidence on the part of the prosecutor which could not be introduced in the trial.” The second reason was not presented to the trial court.

There was evidence that appellant threatened to kill every person including Janet Sanders who was a witness to the shooting of Chester Dent. The prosecutor had a right to comment in argument on the evidence and the credibility of the witnesses, and the extent of such argument must, in a substantial degree, rest within the sound discretion of the trial court who heard that evidence and observed the witnesses. State v. Manley, 513 S.W.2d 703 (Mo.App.1974); State v. McFadden, 530 S.W.2d 440 (Mo.App.1975). In this case the prosecutor was entitled to comment on the evidence which showed Janet Sanders was a friend of appellant and who first tried to make the shooting appear to have been done in self-defense by placing a knife in the hand of the victim. It was perfectly proper for the prosecutor to draw an inference from the evidence that Janet Sanders would have remained friendly to appellant and would not have willingly testified for the State as to the circumstances of the shooting except for the fact that appellant threatened to kill all witnesses, including her. There is absolutely no merit to this contention.

The judgment is affirmed.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.