author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Sarah Frances McMENOMY, Appellant, v. Carl WILLIFORD, Executor of the Estate of Bertha Florence Duvall, Deceased, and as an Individual legatee, and as Trustee, et al., Respondents.
    No. KCD 27090.
    Missouri Court of Appeals, Kansas City District.
    Aug. 4, 1975.
    Motion for Rehearing and/or Transfer Denied Sept. 2, 1975.
    Application to Transfer Denied Oct. 13, 1975.

      W. Y. Mayse, Bethany, for appellant.
    John M. Gerlash, Tarkio, Walter L. Mul-vania, Rock Port, for respondents, Carl Wil-liford, etc.
    John C. Danforth, Atty. Gen., Daniel P. Card, II, B. J. Jones, Asst. Attys. Gen., Jefferson City, for defendant-respondent Atty. Gen.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from declaratory judgment that the residuary clause of a will created a charitable trust.

Bertha Florence Duvall died testate January 7, 1973. Article I of her will provides for payment of debts and expenses; Article III is a bequest to her granddaughter and sole surviving heir, plaintiff Sarah Frances McMenomy; Articles II, IV, Y, VI, VII, VII(a), and VIII are similar bequests to defendants-legatees; and Article X appoints her executor. Article IX of the will provides: “All of the rest and residue of the property, * 4 ⅜ I direct to be used for evangelistic and mission purposes. I direct that my executor 444 shall use his sole discretion in determining and ascertaining the corporation, association or persons to whom such residue and remainder shall be paid and the amounts to be paid to the same, providing, however, that I do intend by separate list to be enclosed with this my Last Will and Testament to make suggestions as to the corporation, association, or persons to whom he shall make distribution under this provision and clause of my Last Will and Testament.”

Plaintiff’s action was in two counts: Count I alleged that Article IX of her grandmother’s will did not create a valid charitable trust and that she as the sole surviving heir is entitled to the residue of the estate; Count II alleged, alternatively, that her grandmother’s will was void because it was procured by fraud, mental pressure, and undue influence on the part of defendants Williford.

Defendants answered that Article IX of decedent’s will created a valid trust; and, in the alternative, if it did not, that plaintiff was estopped from maintaining this action by a stipulation in an earlier action between plaintiff and Bertha Duvall, No. 4250, in the Circuit Court of Atchison County, Missouri.

Plaintiff dismissed Count II prior to submission of the case and thus abandoned all claims except her contention that Article IX of decedent’s will failed to create a valid charitable trust and that, therefore, as to the residue of her estate, decedent died intestate.

Plaintiff requested the court, after submission of her case; to determine: (1) whether Article IX of the will was valid; and (2) whether plaintiff was barred or estopped from bringing her action by the stipulation in Cause No. 4250.

The court found: “That Article IX ⅜ * creates a valid charitable trust * * * and that the plaintiff is not entitled to have and to receive the residue of the Estate of Bertha Florence Duvall, deceased.”

Appellant’s position is stated by her contention that if any of the following questions require negative answers, the court erred and the judgment must be reversed to permit plaintiff to prevail:

(1) Did Article IX create any kind of trust, charitable or otherwise? (Point II.)

(2) Was the purpose of such trust, if created, expressed with sufficient certainty that the intent of the donor can be effectuated? (Point III.)

(3) Can the parties to be benefited be identified so that they as “interested parties” could enforce the trustee to act or restrain his breach or threatened breach of trust? (Point IV.)

(4) Does Article IX contain a complete declaration of the donor’s intent? (Point V.).

(5) Can Article IX be validly interpreted by rejecting or ignoring the provision for a “list” of persons to whom the trustee “shall” make distribution? (Point VI.)

(6) Did the donor’s use of “evangelistic” and “mission” mean, with certainty, religious purposes? (Point VII.)

(7) Were the purposes of the grant actually imposed upon the trustee by connecting the purposes themselves with the grant of discretion to the trustee for distribution purposes? (Point VIII.)

(8) Should the courts continue to hold that religious trusts are to be tested and determined valid by the general rules applicable to charitable trusts which may or may not be religious trusts? (Point IX.)

Appellant asserts: (II) that there is no direction or requirement in Article IX that the trustee distribute to any entity for evangelistic or mission purposes or to be used for such purposes, and the trust needs the missing “list” to identify and determine intended beneficiaries; (III) that “evangelistic” and “mission” do not definitely state donor’s intention in that “evangelistic” can mean “with militant zeal,” and “mission” can mean “permanent embassy or legation” or a style of architecture, and that some term, such as “Christian,” “Mohammedan,” or “religious,” is necessary to give religious connotation to Article IX; (IV) that the class of beneficiaries is not sufficiently described to prevent the trustee from paying the residue to himself and there would be no party in interest to prevent this; (V) that by failing to include the “list” of suggested beneficiaries, the donor intended to revoke or limit the discretion granted her trustee, and that her complete intent cannot be known without such list; (VI) that a will cannot be construed valid by ignoring parts of it, in this case the list provision; (VII) that “evangelistic” and “mission” can mean “religious” evangelism or missions only by speculation and conjecture; (VIII) that the purpose of the trust is not directly connected with and imposed upon the trustee to be expended or used for the purpose of the trust; (IX) that the courts should reconsider past decisions that religious trusts are necessarily charitable trusts to prevent distribution of trust funds under the guise of religious purposes to such entities as an “Indian guru,” “Mohammed Ali,” and the “Symbionese Liberation Army.”

The dispositive question is whether this devise in trust to a named trustee to be used in the discretion of said trustee for “evangelistic and mission purposes” creates a valid public charitable trust. If this question is answered in the affirmative, a secondary question is whether the valid, public charitable trust thus created is unenforceable if the trustor does not supply her indicated “list * * * to make suggestions as to the corporation, association or persons” to whom her trustee would make distribution.

In Missouri, a gift for religious or educational purposes is a gift for charitable purposes. Particular words are not required to create such a trust, since equity need only to ascertain the charitable intent of the creator of the purported trust. Even though beneficiaries of a charitable trust be indefinite, the trust is not invalid since a trust is not a charitable trust if all beneficiaries are definitely ascertained. Charitable trusts are favorites of equity and are construed valid where possible and where private trusts would fail. Yeager v. Johns, 484 S.W.2d 211, 213[l-4] (Mo.1972), and cases cited. Missouri also recognizes that “if the general objects of the bequest are pointed out, or if the testator has fixed a means of doing so by the appointment of trustees with that power invested in them, then the gift must be treated as sufficiently definite for judicial cognizance, and will be carried into effect,” Howe v. Wilson, 91 Mo. 45, 3 S.W. 390, 392 (1887); and “a charitable trust is valid, although by the terms of the trust the trustee is authorized to apply the trust properly to any charitable purpose which he may select and the trustee is able and willing to make the selection,” 2 Rest. Trusts 2d 283, § 396; Yeager v. Johns, supra, 484 S.W.2d 1. c. 215.

There is no question that a devise in trust to k named trustee to be used in the discretion of the trustee “for religious and educational purposes” creates a valid, public charitable trust. Yeager v. Johns, supra.

“Evangelistic” has a primary, plain, and usual meaning as “of or relating to evangelism * * * a missionary or revivalist character or purpose,” Webster’s Third New International Dictionary. Similarly, “evangelical” is defined as “according to the Gospel; consonant to the doctrines and principles of the Gospel; conforming to the principles of the Gospel of Christ; contained in the Gospel; sound in the doctrines of the Gospel; orthodox,” 76 C.J.S. Religious Societies § l(j), p. 744; and an evangelical faith signifies a full acceptance of the Gospel, Leeds v. Harrison, 9 N.J. 202, 87 A.2d 713, 717 (1952).

“Mission” has a primary, plain and usual meaning as “ministry commissioned by a religious organization * * * a ministry (as preaching or educational or medical work) commissioned by a church or some other religious organization for the purpose of propagating its faith or carrying on humanitarian work * * * a mission institution * * *,” Webster’s Third New International Dictionary, and “as an association which sends teachers into heathen countries to Christianize, civilize, and educate the natives; * * * ‘missionary’ is a person sent by ecclesiastical authority to labor for the propagation of his religious faith in a community where the church has no self-supporting indigenous organization,” 76 C.J.S. supra, § 1(e), p. 742. Accordingly, Mrs. Duvall, in using “missionary” and “evangelistic,” intended her trust funds to be used for religious charitable purposes. Epperly v. Mercantile Trust & Savings Bank, 415 S.W.2d 819 (Mo.1967); Glidewell v. Glidewell, 360 Mo. 713, 230 S.W.2d 752 (1950).

So construed, Mrs. Duvall’s devise in trust to Carl Williford, executor, to be given further to entities selected in his sole discretion for evangelistic and mission purposes, i. e., religious purposes, created a valid public charitable trust. The distribu-tees or beneficiaries are sufficiently certain, i. e., entities engaged in evangelistic and mission purposes to be selected in the discretion of a named trustee, who is ready, able and willing to act. When so selected, such purposes become fixed and definite; and, being religious purposes, they are the essence of a public, charitable trust. Innumerable uses or purposes may be benefited, dependent upon the trustee’s exercise of his discretion, an essential element of a charitable trust. The court need not and cannot specify what evangelistic and mission purposes the trustee shall select; but the court may compel a selection and can control diversion from proper and selected purposes. This declaration is supported by many cases construing similar devises in trust to have created valid, public trusts as against charges similar to those made by appellant. See, e. g., Chambers v. City of St. Louis, 29 Mo. 543, 572 (1860), for “poor emigrants and travelers coming to St. Louis on their way, bona fide, to settle in the west”; Howe v. Wilson, supra, 3 S.W. 390, “to divide said remainder among such charitable institutions in the city of St. Louis, Mo., as he shall deem worthy”; Powell v. Hatch, 100 Mo. 592, 14 S.W. 49 (1890), “to such charitable purposes as my said trustee may deem best”; Sandusky v. Sandusky, 261 Mo. 351, 168 S.W. 1150 (1914), “for the general advancement of Christianity.” See also St. Louis Union Trust Co. v. Little, 320 Mo. 1058, 10 S.W.2d 47 (1928); Standley v. Allen, 349 Mo. 1115, 163 S.W.2d 1012 (1942); Yeager v. Johns, supra; Epperly v. Mercantile Trust & Savings Bank, supra. The declaration is consistent also with the majority position and the trend of decisions in the United States. See Scott, Trusts, §§ 395-397 (3d ed. 1967); Rest.Trusts 2d, §§ 395-397 (1959); Anno. 163 A.L.R. 784 (1946); 168 A.L.R. 1350 (1947).

Appellant relies primarily on Jones v. Patterson, 271 Mo. 1, 195 S.W. 1004 (1917), which, although it recognized that “missionary purposes” is synonymous with “religious purposes,” held a devise in trust “for missionary purposes in whatever field he [trustee] thinks best to use it, so it is done in the name of my dear Savior and for the salvation of souls” invalid on the ground the language was too indefinite to create a charitable trust.

Some writers question whether the holding of Jones v. Patterson, supra, has been overruled, see, e. g., 32 Mo.L.Rev. 443, 458; 39 Mo.L.Rev. 51, 56; however, there is no doubt that it has been questioned, distinguished, overruled, at least by implication, and is no longer followed. This was indicated first in Irwin v. Swinney, 44 F.2d 172 (D.C.Mo.1930). Harry Wilson Loose devised the residue of his estate to trustees who were to “ * * * use and apply the principal and income * * * for the furtherance and development of such charitable, benevolent, hospital, infirmary, public, educational, scientific, literary, library or research purposes in Kansas City, Missouri, as said trustees shall in their absolute discretion determine to be in the public interest.” Plaintiffs conceded that the testator attempted to create a charitable trust, but contended that it failed because the attempted trust was not for charitable purposes and, even if for charitable purposes, it was void and unenforceable because of vagueness and indefiniteness. The court held that the devise created a trust for purposes exclusively “charitable” within the technical meaning of that term, and that its general objects were stated with all the definiteness required by Missouri law. The court relied on Howe v. Wilson, Chambers v. City of St. Louis, and Powell v. Hatch, supra; and, with respect to Jones v. Patterson, stated: “One may accept and follow the principles of law recognized in this case without agreeing to the interpretation which the court placed on the particular instrument before it. It is the law of the case with which we are concerned. We are not so much concerned with whether it may have been misapplied. It is interesting to note that in a later decision ⅜ * * Harger et al. v. Barrett, et al., 319 Mo. 633, 5 S.W.2d 1100 [1928], in which the opinion was written by the same judge who was the author ⅜ ⅞ ⅜ in Jones v. Patterson, that judge cited and commented on * * * Sandusky v. Sandusky, 261 Mo. 351, 168 S.W. 1150, 1151, and called attention with approval to its decision that a gift to a trustee ‘for the “general advancement of Christianity” ’ was valid, an indication that even he could not adhere to what must seem to be a misapplication of true principles to facts in Jones v. Patterson * *." 44 F.2d l. c. 183.

Irwin v. Swinney, supra, was affirmed in Gossett v. Swinney, 53 F.2d 772 (8th Cir.1931), and the court said: “With respect to the charge that this bequest is too general and indefinite, the ruling in Jones v. Patterson, and the dictum in Wentura v. Kinnerk [319 Mo. 1068, 5 S.W.2d 66 (1928)], are expressly bottomed upon a misapprehension of the holding in Morice v. Bishop of Durham [32 Eng.Rep. 947 (1805)], supra. In so far then as these cases, upon which appellants chiefly rely, are deemed to be in conflict with the principle announced in Chambers v. City of St. Louis, St. Louis Union Trust Company v. Little, and others of like tenor, they are not in harmony with the great body of Missouri decisions, and do not express the policy of that state with respect to charitable uses and trusts.” 53 F.2d l. c. 783.

St. Louis Union Trust Co. v. Little, supra, 10 S.W.2d l. c. 50, affirmed the validity of a devise in trust “to be spent on the welfare of poor, homeless children,” relying on Howe v. Wilson and Powell v. Hatch, supra, and rejecting Jones v. Patterson, supra.

Altman v. McCutchen, 210 S.W.2d 63 (Mo.1948), upheld a devise in trust “ * * * to [the] charitable and other institutions devoted to alleviation of human suffering and want ⅜ * *,” relying on Howe v. Wilson, Powell v. Hatch, Sandusky v. Sandusky, St. Louis Union Trust Co. v. Little, Irwin v. Swinney, and Gossett v. Swinney, supra, and rejecting Jones v. Patterson, supra.

Epperly v. Mercantile Trust & Savings Bank, supra, upheld this devise: “I leave to the discretion of my Trustees the distribution of the income to Protestant churches and religious organizations but direct that the gifts be used to save souls and not to build buildings or to improve existing buildings.” Again, the court relied on Howe v. Wilson, supra, discussed all the oft-cited charitable trust cases and authorities, and stated: “Where * ⅜ * a trust provision gives to the trustee discretion in applying the trust property to the specified charitable purpose * * * Jones v. Patterson * * * should not be followed.” 415 S.W.2d l. c. 822.

Yeager v. Johns, supra, again reviewed the cases and authorities on charitable trusts, rejected Jones v. Patterson, supra, as an authority, and heeded the direction in Epperly v. Mercantile Trust & Savings Bank, supra, that Jones v. Patterson is not to be followed. Yeager v. Johns recognized the question of the writer in 32 Mo.L.Rev. 443, with respect to whether Jones v. Patterson was to be considered as an authority on charitable trusts, and held, as against any such doubt, “that a devise in trust [i. e., a power of appointment] to unspecified charities creates a valid, public charitable trust even though the instrument creating the [power] does not limit in any way the possible charitable appointees. This has long been the law in Missouri, e. g., Chambers v. City of St Louis, supra (1860), Howe v. Wilson, supra (1887), Powell v. Hatch, supra (1890) * ⅜ *.” 484 S.W.2d 1. c. 215[9].

Appellant’s question whether parties to be benefited are identified sufficiently as parties in interest to enforce the trust or restrain its breach is answered in Murphey v. Dalton, 314 S.W.2d 726, 730[1,2] (Mo.1958): “⅜ * * the Missouri Attorney General represents the Missouri public in matters pertaining to and connected with public charitable trusts. * ⅜ * ‘The public is the beneficiary of the trust, and the attorney general, as its representative, was [is] the only real party in interest, or required to be made a defendant.’” See also Yeager v. Johns, supra, 484 S.W.2d 1. c. 215[8].

Appellant’s argument that there is no direction on requirement that the trustee distribute the residual estate to any entity for mission or evangelistic purposes, or to be used for such purposes, is difficult to follow. The language of Article IX imposes a duty on the trustee to distribute such money for evangelistic and mission purposes, and leaves to his discretion only the selection of entities capable of receiving monies for such purposes. Violation of such direction by donation to a friend, for example, not engaged in such purpose, could and would be controlled by a court. Yeager v. Johns, Irwin v. Swinney, supra.

Nor did this otherwise valid, charitable trust fail when Mrs. Duvall failed to supply her “list” of suggested distributees.

A charitable trust will stand so long as there is a trustee empowered to select its beneficiaries and a charitable object or purpose stated. Irwin v. Swinney, Yeager v. Johns, Epperly v. Mercantile Bank & Trust, supra. Article IX of Mrs. Duvall’s will named a trustee and empowered him with sole discretion to determine beneficiaries within her stated charitable purposes. Her intention and provision for suggestion of beneficiaries would not affect her trustee’s sole discretion unless and until such list is provided. Ostmann v. Ostmann, 237 Mo.App. 223, 169 S.W.2d 81 (1943); Jones v. Nichols, 280 Mo. 653, 216 S.W. 962 (1919). Article IX is thus a complete charitable trust devised without the “list” or “suggestions” from the donor. See also 2 Rest.Trusts 2d 395(b).

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: ANDREW J. HIGGINS, Special Judge.

license: Public Domain

text:
    J. Elwood FOGELSONG, Respondent, v. BANQUET FOODS CORPORATION, Appellant.
    No. KCD 27458.
    Missouri Court of Appeals, Kansas City District.
    Aug. 4, 1975.
    Motion for Rehearing and/or Transfer Denied Sept. 2, 1975.

      Christian F. Stipp, Stipp & Ferguson, Carrollton, for appellant.

      David P. Macoubrie, Cleaveland & Ma-coubrie, Chillicothe, for respondent.
    Before SWOFFORD, P. J., and ROBERT R. WELBORN and ANDREW J. HIGGINS, Special Judges.
   ANDREW J. HIGGINS, Special Judge.

Appeal by employer from that part of judgment affirming award of the Industrial Commission of Missouri to employee of $18,-720 permanent partial disability of ninety per cent of his body as a whole (360 weeks at $52.00 per week). Appellant concedes employee’s permanent partial disability to the extent of 50 per cent of the right arm at the elbow (105 weeks at $52.00 per week —$5,460), but contends the evidence is not sufficient for permanent partial disability of ninety per cent of the body as a whole.

Employee’s claim for compensation alleged:

“11. Parts of body injured. Right hand, arm, elbow, shoulder, neck, low back, nerves, eyes bothersome since accident, possible brain injury.

“14. Exact nature of any permanent injury. Right hand, arm, elbow, right shoulder, cervical and lumbar area of spine, highly nervous, eye difficulty, possible brain injury.”

It was stipulated at the hearing on employee’s claim: that on May 30, 1969, employee, while in the employ of employer, suffered an accident arising out of and in the course of his employment and sustained an injury as a result; that the compensation rate is $57.00/$52.00; that compensation had been paid employee by employer for temporary total disability for thirty-four weeks in sum $1,938.00, medical aid in sum $3,565.15, medical expenses in sum $668.00, and travel expenses in sum $1,324.20; that prior to May 30, 1969, employee had a 10 per cent permanent partial disability to the body as a whole as a result of a prior injury sustained by employee to his back while in the Armed Forces.

Jesse Elwood Fogelsong, born August 10, 1933, went to work for Banquet Foods Corporation at its plant in Carrollton, Missouri, in March 1969. On May 30,1969, he slipped on a piece of meat, fell to the floor and against a turning augur. The augur caught his right arm and continued to turn, jerking him during such turning. The augur was subsequently stopped, but about forty-five minutes passed before his arm could be freed. When he fell, Mr. Fogelsong grabbed the augur casing with his left hand, at which time he hit his head on the casing. He had a sore spot on the left side of his head the next day and had a severe headache the second day after the accident. He experienced speech ^problems shortly after the accident when he arrived at a Kansas City hospital later in the day. None of these conditions existed prior to the accident. Fellow employees at Banquet experienced difficulty in removing Mr. Fogelsong from the augur because it was straining him up rather than pulling off his arm. His body was placed inside the casing and a jackhammer was used in the course of his release. The jackhammer made a deafening noise, producing an unbearable situation.

' From 1957 to March, 1969, Mr. Fogelsong worked for Thomas Houston Peanut Company as a salesman. He worked regularly and had no physical difficulties in performing his work. He was hospitalized in July and September, 1959, but since 1960, up to May 30, 1969, worked regularly, met the public, had no speech or physical difficulties, no seizures, blackouts or mental or emotional difficulties. He performed whatever work was required of him and was in no way hampered by the service-connected back injury. He was examined by the company doctor, Jack L. Yinyard, M.D., May 19, 1969. Dr. Vinyard’s report noted that Mr. Fogelsong, while in service, had surgery to the right side of his head and that he sustained a low back sprain. Dr. Yinyard found him acceptable for unlimited employment and noted that he had no residual neurological or orthopedic disfunction.

Mr. Fogelsong has undergone five surgeries on his right arm. He has jerking in his neck and left eye. He cannot remember well, cannot concentrate, has difficulty thinking and talking, and has experienced several seizures since his accident. None of these conditions existed between 1960 and May 30, 1969. He has tried to work on a tank truck in Chillieothe, but could not find his way around or think where to go. He cannot talk or work and he cries when he tries to talk. He had no emotional or mental difficulties between 1960 and May 30, 1969, but, since his accident, his mental and emotional condition has deteriorated. Neither of the service injuries to his back and head hindered him from performance of his work at Banquet. He was honorably discharged from the service.

Mr. Fogelsong experienced convulsions and blackout spells between 1953 and December, 1959. He also bit his tongue on two occasions and had smelled foul odors. In 1959 he was treated with Dilantin and underwent a right parietal craniotomy at the Veterans Hospital for possible progressive hemiparesis. No tumors were found and he was discharged from the hospital in December, 1959. He had no further treatment for any such condition up to and including May 30, 1969. Since his accident he has had to resume various medications and does have various muscle weaknesses.

Wilma P. Fogelsong has observed the changes in her husband’s condition. Prior to May 30,1969, he was of a happy disposition, met the public, and was active in school and church affairs. He had no speech difficulties prior to May 30, 1869, in his sales job with the Houston company. Also prior to May 30, 1969, he had a business involving three tracks and supervision of twenty people. On May 31, 1969, when she visited her husband at the hospital, he tried to tell her what happened. She could not understand him and she called Dr. Ov-eresch who also noted the speech problem. His speech problem and nervous condition have worsened; he relives the accident, has nightmares about it, and sleeps about two hours at a time. He is unable to work. He stays in the house, and when he has bad spells, he shuts himself away from the children. Mrs. Fogelsong was aware of the conditions treated and operated by the Veterans Hospital in 1959, after which her husband’s condition improved as predicted by the Veterans Hospital doctor.

Reverend John Gooding knew Mr. Fogel-song between June, 1958, and 1965 when he was pastor of the Liberty Methodist Church in Chillieothe. He knew Mr. Fogelsong as an excellent church worker possessed of stable personality and emotions. He had no speech defect and was not introverted. Reverend Gooding visited with Mr. Fogel-song two or three times after the accident of May 30,1969, and noted the quick deterioration in his friend’s emotional and physical condition.

In addition to observation of the employee during his testimony, the referee, upon request, made specific observations for purpose of disfigurement, at which time the referee also received a picture of the extent of employee’s disability.

Immediately following the accident, Mr. Fogelsong was examined and treated by Dr. Vinyard, who also referred and transferred him by ambulance to Research Hospital in Kansas City for treatment by Hany B. Overesch, M.D., a specialist in orthopedies. Dr. Vinyard described employee’s injury as “severe deep laceration involving the right wrist joint through the joint on the palmer surface, severing tendons, blood vessels and nerves * * * additional deep lacerations involving the forearms to the bone with deep lacerations involving the muscle bodies and at the elbow.” He administered shock therapy and tied off the bleeding arteries.

Dr. Overesch first saw Mr. Fogelsong in the emergency room at Research Hospital on May 30, 1969, where he was taken to surgery and the lacerations and wounds were scrubbed and irrigated and surgically repaired. He remained at Research until June 14, 1969, during which time he was placed on antibiotics and splints were made for his right upper extremity. The splints were changed along with dressings on two occasions. He was dismissed to the care of Dr. Yinyard. Dr. Overesch saw his patient again August 20, 1969, and March 1, 1972. In the interim, Mr. Fogelsong had been to Dr. Chandler, a plastic surgeon, for further surgery and rehabilitation of his right hand. On March 1,1972, Dr. Overesch again noted Mr. Fogelsong to have a severe speech impediment as well as epileptic-type seizures for which he had seen two neurologists and had been taking Dilantin. He was also noted to show marked depression and deterioration since previous observation.

Upon hypothetical questions, it was the opinion of Dr. Overesch that the disability as a result of the injury May 30th to the arm “would be in the neighborhood of approximately 50 percent of the right upper extremity at or above the elbow.” Dr. Ov-eresch was also of the opinion that his patient’s condition as noted March 1,1972, and since, was “aggravated by the accident of May 30th, 1969 * * * that' he has a permanent disability, total disability.”

R. Allen Chandler, M.D., a specialist in plastic, reconstructive, and hand surgery, examined Mr. Fogelsong September 3,1969, and subsequently performed recommended surgery. He was of the opinion that Mr. Fogelsong would have “a considerable amount of permanent partial disability.” Specifically, with respect to the injured member, Dr. Chandler “would give this patient a permanent partial disability of approximately 50% of the right hand rated at the elbow joint.” He made no rating on disability to his patient’s whole body.

Donald C. Sanders, M.D., a psychiatrist, reported his diagnosis of Mr. Fogelsong:

“1. Depressive Reaction, Chronic with Hysteroid and Conversion-type Symptoms.
“2. Schizoid Personality Profile.
“3. Epilepsy, Mixed Type, Etiology Unknown.
“4. Muscle and Nerve Limitations, as se-quellae from old traumatic injury to the right arm and hand.”

Dr. Sanders referred his patient’s mental disorders to “traumatic neurosis which has been only indirectly associated with the traumatic injury to the right hand.”

Appellant states its position, viz.: “There is no question but what at the time of the hearing * * * the Employee suffered a total disability, ten per cent of which was attributable to an injury to his back which he sustained while a member of the armed services and ninety per cent of which was attributable to other causes. The question * * * is whether * * * there is sufficient competent evidence * * * to support an award based on a finding that the Employee’s accident of May 30, 1969 caused or resulted in a permanent partial disability of ninety per cent of the body as a whole.”

Appellant emphasizes employee’s medical history of hemiparesis, blackouts, convulsions and seizures, treated by the Veterans Administration Hospital both prior and subsequent to the accident and the opinions of Drs. Chandler and Overesch that the employee sustained a permanent partial disability of fifty per cent of the right arm at the elbow, to support an assertion that the employee failed to meet his burden to prove by competent substantial evidence the extent of the disability which resulted from the accident of May 30, 1969, and, therefore, the award may not stand. See Smith v. National Lead Co., 228 S.W.2d 407, 412[4] (Mo.App.1950); Griggs v. A. B. Chance Co., 503 S.W.2d 697, 703[l-5], 705[9] (Mo.App.1973).

Appellant also asserts that employee’s condition was such that expert opinion was essential to show it was caused by the accident to which it is ascribed. See Nick v. International Shoe Co., 200 S.W.2d 590, 593[5, 6] (Mo.App.1947).

Appellant’s argument is that this is “a situation in which an employee is found to be 100% disabled. Of this 100% disability, 10% is attributable to an accident which the employee sustained prior to an industrial accident and 90% is attributable to other causes. The employer is liable for the payment of compensation for whatever part of that 90% was caused by the industrial accident. i: ⅞ * But the employer is not liable for that part of the disability which was not caused by or attributable to the industrial accident. If the expert medical evidence shows that a part of the 90% of the disability was caused by and attributable to the industrial accident and a part was the result of other causes, then expert medical testimony must show how much of the 90% of the disability was caused by or attributable to the industrial accident.”

Where the evidence shows that an industrial accident caused a disability or aggravated a pre-existing condition or infirmity of an employee which produced a condition which would not have resulted in a normal, healthy individual, the Industrial Commission of Missouri is authorized to make an award. Mashburn v. Chevrolet-Kansas City Div., G. M. Corp., 397 S.W.2d 23, 29[7] (Mo.App.1965); Gennari v. Norwood Hills Corp., 322 S.W.2d 718, 722[10] (Mo.1959).

Under this proposition the evidence shows, and the Industrial Commission reasonably could find, that Mr, Fogelsong’s accident of May 30,1969, caused his disability or aggravated a pre-existing condition to cause the disability he sustained.

Contrary to appellant’s assertion, and except for its assumption that Mr. Fogelsong had a ten per cent permanent disability attributable to an accident he sustained pri- or to his industrial accident of May 30,1969, it is undisputed and uncontradicted that any such prior injury was not industrially disabling in that it did not in any way restrict or interfere with his performance of any kind of work in which he engaged including his work at Banquet Foods.

It is true that Mr. Fogelsong had an injury to his back and head while in the Armed Services; that he was given a ten per cent disability compensation for his back injury by the Veterans Administration; and that he had medication and surgery for correction of various problems associated with Ms brain. However, the evidence shows he was successfully treated for any such injuries, and that he was functional and worked without disability from 1960 to May 30, 1969. His disability-free condition at the time he entered Banquet’s employ was verified by that company’s own doctor fourteen days prior to the accident.

While in a disability-free condition Mr. Fogelsong sustained subject traumatic injury to hand, arm, shoulders, head, and nerves. Speech impediment was noted within hours of the accident and neurological problems were noted by Dr. Overesch in his report of August 29, 1969. Mr. Fogel-song was again on Dilantin for such problems and be had not taken any such drug between 1960 and the date of his accident May 30, 1969. Dr. Sanders noted mental disorders in Mr. Fogelsong referable to subject trauma as well as muscle and nerve limitations specifically referable to the hand and arm injuries. Dr. Sanders described all such manifestations as severe and disabling mental problems. All of Mr. Fogelsong’s problems following his accident have rendered him totally disabled. He is unable to function as a person, much less able to work.

Despite employer’s attempts to limit Mr. Fogelsong’s disability to his hand and arm, specifically through the rating accorded Mr. Fogelsong by Dr. Chandler and accepted by Dr. Overesch, the evidence shows that Mr. Fogelsong sustained injury to other portions of his body, the most severe of which was to his head and nerves. It is not required that an award be limited to matters of physical injury and accompanying loss of members, scars or disfigurement. Missouri is in the majority of jurisdictions which recognizes that even in the absence of physical impact there is accidental injury or personal injury within workmen’s compensation acts where an employee suffers a nervous disability from sudden shock, fright, or other emotional stimuli. Todd v. Goostree, 493 S.W.2d 411, 417[10], 420[11] (Mo.App.1973). Anno. 109 A.L.R. 892. It is not argued that Mr. Fogelsong’s experience while awaiting rescue from the augur which imprisoned him was not sufficient to produce shock, fright and emotional stimuli sufficient to produce his mental disorders and disability.

Medical testimony is not required to establish cause and disability where those matters are within the understanding of lay persons. Mr. Fogelsong’s own testimony and that of his wife and pastor constitute competent evidence on his disability-free condition prior to his accident and his total disability as a result of the accident. “ ⅜ * permanent partial disability as found under the ‘catchall’ part of Section 287.190 RSMo, V.A.M.S., can be inferred from the whole evidence, although there be no single positive declaration to that effect. The commission is not solely dependent upon medical evidence- The finding is to be made from the whole evidence. * * * The testimony of the claimant or other lay witnesses as to facts within the realm of lay understanding can constitute substantial evidence of the nature, cause, and extent of the disability, especially when taken in connection with, or supported by, some medical evidence.” Davis v. Brezner, 380 S.W.2d 523, 528[11-13] (Mo.App.1964). “The Commission is authorized to base its findings and award solely on the testimony of a claimant. His testimony alone, if believed, constitutes substantial evidence to establish that he sustained an injury * * * and * * * ‘of the nature, cause, and extent of his disability.’ ” Smith v. Terminal Transfer Co., 372 S.W.2d 659, 665[10] (Mo.App.1963).

Not only is there competent lay testimony as to Mr. Fogelsong’s injury and the nature, cause and extent of his disability, Dr. Overesch provided expert testimony that “he has a permanent disability, total disability.” Both Drs. Overesch and Chandler recognized the extent of disability referable to Mr. Fogelsong’s hand and arm alone, and Dr. Sanders supplied expert testimony as to his nervous and mental disability.

Extent and percentage of disability is a finding of fact within the special province of the Industrial Commission, Lowery v. AFC Industries, Incorporated, 428 S.W.2d 7, 10[3] (Mo.App.1968), Davis v. Day-Brite Lighting, Incorporated, 366 S.W.2d 84, 88[4] (Mo.App.1963); and the Commission is not bound by the medical testimony but may consider all the evidence, including the testimony of the employee, and draw all reasonable inferences from other testimony in arriving at the percentage of disability, Haggard v. Snyder Construction Co., 479 S.W.2d 142 (Mo.App.1972).

Appellant concedes employee’s fifty per cent partial disability to his right arm at the elbow and his total disability at the time of the hearing. It already has been demonstrated that the Industrial Commission reasonably could find that the employee was permanently totally disabled as a result of his accident, and the referee made, and presumably reported, his observations of the employee’s inabilities, disabilities, and infirmities. Such circumstances would support an award of total or one hundred per cent permanent disability, and would thus support an award of ninety percent permanent partial disability which the Commission in its special province fixed as the percentage or extent of Mr. Fogelsong’s disability. Haggard v. Snyder Construction Co., supra, 479 S.W.2d l. c. 145.

Appellant relies principally on Griggs v. A. B. Chance Co., supra, which is readily distinguished in that the employee’s doctor admitted that insofar as disability was concerned, any attempt on his part to ascribe all or any part of the 25 per cent disability which he found in employee’s body to the accident in question would be medical speculation, conjecture and surmise on his part. 503 S.W.2d l. c. 702, 705[9].

Judgment affirmed.

All concur.

      . There was no stipulation whether the service-connected disability, was in any way industrially disabling.


author: SMITH, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Richard Lee THOMAS, Defendant-Appellant.
    No. 36089.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Aug. 5, 1975.

      Charles D. Kitchin, Public Defender, John F. Bauer, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., William F. Arnet, Preston Dean, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Henry J. Fredericks, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   SMITH, Chief Judge.

Defendant was tried and convicted by a jury of (1) Arson of a motor vehicle, (2) Arson of a dwelling house occupied by human beings, and (3) two counts of murder first degree arising from the deaths as a result of the fire of two persons in the house. Defendant was sentenced to three concurrent life terms and one concurrent five-year term. He appeals.

Defendant raises seven points of error. Two of them raise either directly or indirectly the sufficiency of the evidence to support the convictions. Vile therefore review the facts and reasonable inferences supportive of the verdicts.

On May 19, 1973, in the early morning, a fire occurred in a four-family flat owned by one Patrick Schaefer. One of the upstairs flats was rented to Nada and Edward Hut-son. Sleeping in that flat on that night were (1) Mr. and (2) Mrs. Hutson, (3) David Talley (Mrs. Hutson’s 14 year old son by a prior marriage), (4) Eddie Hutson, Jr., and (5) Herbert Hutson (sons of Edward Hut-son), (6) a friend of the latter two, (7) Caroline (Edward Hutson’s daughter) and (8) her baby, (9) Anna Mauerer (an elderly, senile, non-relative who paid room and board) and (10) defendant (a friend of the family). David Talley was fourteen and was afflicted with a disease from birth which caused him to attempt to mutilate himself. It was therefore necessary for his hands to be tied to his wheelchair during the day and to Ms bed at night. Defendant-had helped tie him in on the night of the fire.

The fire of the motor vehicle charged in Count I occurred while the motorcycle was outside the house chained to the porch. As Mr. Hutson was escaping from the burning house he noticed that the gas cap (which had previously been in place) had been removed from the motorcycle and a piece of rag stuffed into the opening, which was burning. He extinguished that fire with a bag of some sort. The fire in the house started in the basement. Much evidence was adduced of the conditions found in the basement after the fire and the pattern of burning. Substantial expert testimony was given that the fire was deliberately set. There was also substantial evidence that eliminated some other possible causes. The fire burned rapidly and caused heavy smoke and heat in the second story of the flat. There was further expert testimony that a second fire, again deliberately set, was started in the hall of the second floor near the door where defendant and David Talley were sleeping. There was evidence that Mr. Hutson’s dogs, which would always bark at strangers, were silent on the night of the fire. When the fire was discovered all occupants of the second floor escaped except Anna Mauerer, found in the bathroom, and David Talley, found still tied in his bed. Both were pronounced dead upon arrival at the hospital, and an autopsy determined the causes of deaths to be smoke inhalation, intense heat and carbon monoxide poisoning. Both deaths were caused by the fire.

The evidence above set forth is sufficient to establish the corpus of the crimes charged. If believed, it warrants the conclusion that a fire in the dwelling house occupied by human beings was started by the criminal agency of someone, and that that fire caused the deaths of Anna Mauerer and David Talley. It also warranted the conclusion that a fire was started in the motorcycle by the criminal agency of someone.

While at the hospital under treatment for first and second degree bliras defendant admitted having started the fires in the motorcycle and the basement. This confession was made in the presence of two police officers and the hospital chaplain, Father Zoeller. No attack is here made upon the voluntariness of the confession, and the evidence supports the conclusion that it was knowingly and voluntarily given. While there are certain inconsistencies between the confession and certain other testimony concerning the two fires in the house and the circumstances of defendant’s escape and subsequent conduct, those inconsistencies do not destroy the probative force of the confession. They may be explained in part by testimony that defendant had been drinking shortly before the fires. Resolution of these inconsistencies was for the jury. The evidence was sufficient to support the verdicts.

On opening statement the prosecutor stated that Edward Hutson would testify that “within this period of about a year and a half since this defendant came from California there had been about half a dozen or six fires there at this house . . . [t]he evidence will further show that each time there was a fire there this defendant was on the premises.” Objection to these statements was overruled on the basis that they fitted within the intent and pattern exceptions to the rule against evidence of other crimes. During the trial no evidence to support these statements was adduced nor was any attempt made to adduce such testimony. No motion to strike the previous statements or to declare a mistrial was made after Edward Hutson testified, at the conclusion of the State’s case, or at the conclusion of the entire case. No charge of bad faith on the part of the prosecutor was ever made.

The purpose of an opening statement is to outline what is to be proved at trial. It is, and was here, prefaced with an admonition that the jury not consider its content as evidence. It is not required that the opening statement set forth every detail of the evidence to be offered or establish precisely how each piece of evidence referred to will be established. In fact, it “should be brief and general, rather than detailed, and should be confined to statements based on facts which can be proved and should not include facts which are plainly inadmissible.” State v. Feger, 340 S.W.2d 716, 724 (Mo.1960) [12-16], quoting 23A C.J.S. Criminal Law § 1085. If evidence referred to is arguably admissible, if the prosecutor acts in good faith and with reasonable grounds for supposing that he will be able to show the facts stated, then it is not error to include the evidence in the opening statement. See State v. Horn, 498 S.W.2d 771 (Mo.1973) [1]. We cannot presume bad faith and no charge of such is here advanced. See State v. Feger, supra, 340 S.W.2d at 724-725 [12-16]. Defendant contends rather that the evidence referred to was not even arguably admissible.

It is a rule of law that evidence of other crimes may not be shown except in limited circumstances. While the exceptions cannot be stated with categorical precision they involve situations where the evidence of other crimes has a legitimate tendency to directly establish the defendant’s guilt of the charge for which he is on trial State v. Wilson, 320 S.W.2d 525 (Mo.1959) [1]. Generally speaking those exceptions include evidence which tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that' proof of one tends to establish the other; and, (5) the identity of the person charged with the commission of the crime on trial See State v. Wilson, supra. In sexual crimes evidence of other acts of the same character may ordinarily be shown as corroborative evidence to show, a disposition upon the part of the accused tending to support the specific charge. See State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765 (1953) [7, 8].

The statement of the prosecutor here did not set forth what nexus the State expected to establish between the six fires and defendant except defendant’s presence. Some additional nexus would have been required before the evidence referred to would have been admissible during the trial. See State v. Bersch, 276 Mo. 397, 207 S.W. 809 (1918) [11]. But we are not dealing with evidence admitted but with an opening statement of expected evidence which need not detail all the evidence. There is no apparent motive in this case for the defendant to have committed the crime with which he was charged. Motive, of course, is not a required element of the crime, but it is an important fact to a jury and it provides one of the exceptions to the rule against evidence of other crimes. Arson, like certain sexual crimes, is sometimes the product of a personality aberration and knows no other motive. Evidence of a history of pyromania is at least arguably admissible to establish a motive in a specific case. State v. Hopkins, 117 Ohio App. 48, 189 N.E.2d 636[3] (1962); State v. Peabody, 320 A.2d 242[4-5] (Me.1974); State v. Bersch, supra, 207 S.W. at 814[11]; Anno. 87 A.L.R.2d 891. With proper development such evidence might establish incendiary nature of the fire, intent, or common scheme. State v. Koch, 322 Mo. 106, 16 S.W.2d 205[4-6] (1929); State v. Ritter, 288 Mo. 381, 231 S.W. 606[3, 4] (1921). In that posture we cannot hold that error was committed in permitting the statements made.

Since no bad faith of the prosecutor was charged we cannot premise error upon that basis. Nor do we intend to speculate why relief was not sought at a later point in the trial when the evidence referred to was not in fact presented. Trial strategy may have been involved. At any rate, we do not conclude that it was the burden of the trial court to act sua sponte during the trial. There are substantial double jeopardy problems present in mistrials declared upon the court’s own motion. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). We find no prejudicial error in the trial court’s handling of this matter. By our holding here we in no way condone or encourage an attempt by the prosecutor to place before the jury in opening statement inadmissible or unprovable facts to prejudice the defendant. Where the record establishes such we will deal with it. The record does not support such a conclusion here.

Defendant contends that a statement by the prosecutor during closing argument was so prejudicial as to require declaration of mistrial upon the court’s own motion. Objection to the argument was sustained and it was ordered stricken but no mistrial was requested by defendant. We do not find the statement to have been sufficiently prejudicial to have warranted a mistrial, had one been requested; it was certainly not serious enough to call for the action sua sponte.

Defendant premises error upon the refusal of the trial court to give defendant’s proffered instruction on accident, carelessness or natural causes. Defendant is entitled to an instruction on any theory the evidence tends to establish. State v. Shivers, 458 S.W.2d 312[4] (Mo.1970). MAI-CR 2.26 (defendant’s proffered instruction) must be given whether requested or not “If there is evidence to support it.” See MAI-CR 2.26, Notes on Use, para. 1. The only evidence which is mentioned by defendant to support such an instruction was that varnish, paint, and old clothing were present in the basement. No evidence at all warranted even an inference that such presence started the fire in the basement. All the evidence, completely undisputed, was that the fire was deliberately set. There was no evidence to support the instruction and it was not necessary to give it.

By apparent inadvertence the jury was instructed on Count I (the arson of the motorcycle) by use of MAI-CR 7.04 entitled “Arson under Section 560.020.” Defendant was actually charged with violation of § 560.025 for which MAI-CR 7.06 is the proper instruction. But 7.06, as it appears, covers only one of three possible violations of § 560.025, not the one charged here. The “Notes on Use” state it may be adapted to cover the other two violations if desired. Such adaptation to cover the offense here charged would give an instruction identical to that set forth in 7.04 as to the substantive elements of the crime. Here those elements of the crime all were correctly stated in the instruction given. There is no prejudice in the technical variation.

The instruction did present an erroneous range of punishment. Section 560.-020 carries a range of 2 years to 10 years; Section 560.025 carries a range of 2 years to 5 years. The jury verdict was 10 years which the trial court reduced to 5 years. The trial court’s correction of the sentence was not prejudicial to defendant (see State v. Miller, 324 Mo. 36, 292 S.W. 440 (1927) [12, 13], § 546.430, RSMo 1969) and cannot be considered a usurpation of the jury’s power under the circumstances here.

Judgment affirmed.

ALDEN A. STQCKARD and NORWIN D. HOUSER, Special Judges, concur.

      . One point challenges the establishment of the corpus of the crimes and thereby the admissibility of defendant’s confession.


author: RENDLEN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Samuel Lee NEAL, Defendant-Appellant.
    No. 36124.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 5, 1975.

      Frederick R. Buckles, Asst. Public Defender, James C. Jones, Charles D. Kitchin, St. Louis, for defendant-appellant.
    Julian Cosentino. Asst. Circuit Atty., St. Louis, John C. Danforth, Atty. Gen., Clarence Thomas, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   RENDLEN, Judge.

This appeal is from defendant’s conviction of second degree murder under § 559.-020 RSMo 1969 and sentence of fifty-five years imprisonment. We affirm.

Defendant makes two assignments of error: (1) the court erred in permitting a police officer to testify that state’s witness Austin Jenkins had not been booked for the same murder with which defendant had been charged, because such testimony was irrelevant and prejudicial; and (2) the court erred in refusing a mistrial when the prosecutor suggested, in closing argument, that the police suspected defendant was guilty of the crime, thereby violating defendant’s presumption of innocence.

The case arises from the murder of Per-ron Scaife on July 31, 1973. The facts of the killing were primarily supplied by Jenkins who testified that on the day in question defendant and he went with one other man to Scaife’s home to purchase “drugs.” The transaction for purchase of the drugs occurred while the parties were in Jenkins’ car near Scaife’s home, at which time, defendant, apparently dissatisfied with the quantity of drugs supplied by Scaife, threatened him with a pistol. The group then went to Scaife’s apartment, where on defendant’s demand for more drugs, Scaife told him there were no more, “that that was all he had.” Jenkins then searched the bathroom but found no additional drugs, whereupon defendant proceeded to the bathroom, followed by the deceased. Jenkins, who remained in the other room, heard scuffling in the bathroom and then a single gun shot. Going immediately to the bathroom, Jenkins saw Scaife standing in a corner with defendant pointing a pistol at him and heard Scaife say, “Don’t kill me.” Defendant fired the gun and Jenkins fled through the back door of Scaife’s home into the car followed closely by defendant and they immediately drove from the scene. There is no contention the evidence was insufficient to support the verdict.

Defendant, for his first assignment of error, complains of the admission of evidence relating to criminal charges against Jenkins and his agreement to testify on behalf of the state in exchange for promised leniency. On direct examination the prosecutor, apparently anticipating an attack upon the witness’ credibility, elicited testimony that a robbery charge was pending against witness Jenkins, and in exchange for the promised leniency on that charge, Jenkins had agreed to testify against defendant. Defense counsel, on cross-examination, brought out that the robbery count pending against Jenkins was not connected with the incident at Scaife’s home. Jenkins had been charged with the robbery on July 81, 1973, and was approached sometime later by the prosecutor to testify in the present case.

The prosecutor on redirect, without objection, asked Jenkins if he had been charged with Scaife’s murder. The exchange between Jenkins and the prosecutor was as follows:

“Q. All right. Were any murder charges, or any other type of charges brought against you as a result of Perron Scaife’s shooting?
A. Yes sir. '
Q. What was that?
A. Murder.
Q. Were you ever charged by the state?
A. Naw.
Q. You were never charged by the state?
A. When we were first arrested,
Q. When they initially arrested you?
A. Yes.
Q. Were any formal charges ever issued?
A. No.”

Immediately, on recross-examination, defense counsel asked Jenkins whether his hands had been treated with “liquid” or “sprinkly stuff,” apparently inquiring whether Jenkins had been tested by neutron actuation analysis to determine if he had recently fired a gun. Jenkins denied that he had undergone such testing.

Near the close of the state’s case Officer Raymond Pestka of the St. Louis Police Department, who arrested Jenkins and defendant, was recalled and asked by the prosecutor whether Jenkins had been “booked for murder.” Over defense’s objection, Officer Pestka testified that Jenkins had not been so booked for murder. In support of his contention that testimony as to Jenkins not having been booked for murder was irrelevant, defendant cites several cases, none of which are controlling here. The cited authorities state the general rule that a witness’ credibility may not be attacked by showing mere arrest not resulting in conviction; but these cases also recognize exceptions to the rule “in cases where the interrogation is necessary to show the bias or motive of a prosecution witness; for example, that an indictment or charge has been dropped in return for desired testimony.” State v. Taylor, 498 S.W.2d 614, 616[1] (Mo.App.1973). It is precisely this exception which justified introduction of Officer Pestka’s testimony. Certainly defendant on cross-examination would have been entitled to establish the fact that Jenkins had not been booked for this murder and that he was under the onus of at least one robbery charge and had been offered leniency on that charge for becoming a state’s witness in this case. All this defendant could develop to explain the interest or bias of the witness. So too, may the state in anticipation and by way of explanation, on direct examination, demonstrate such interest of the witness to the jury.

It is undisputed that witness Jenkins was present at the murder of Perron Scaife and arrested while in the company of defendant. Similarly, there is no question that Jenkins’ testimony was in response to promises of leniency including an independent robbery charge. However, interrogation of Jenkins by both the prosecution and defense caused confusion as to whether he had been charged with Scaife’s murder and, by inference at least, was being promised leniency with respect to that crime as well. In the exchange between the prosecutor and Jenkins, set out above, it is not clear whether Jenkins was charged with murder when arrested; he answered in both the affirmative and negative and we note the defense made no objection to this line of inquiry. Counsel for defendant heightened the confusion when, on cross-examination, asked the witness whether tests had been conducted to determine if he had fired a gun. This raised the implication that perhaps Jenkins had participated in or committed the murder, from which the jury might infer Jenkins should have been “booked for murder” but was not, as a part of the leniency arrangement.

Where several persons are involved in a single criminal transaction, “[p]romises of immunity from prosecution, reduction of charges, reduction of punishment, and dismissal of charges are common methods of obtaining testimony implicating persons other than the witness.” and “[wjhether such promises have been made is an important fact which a jury must have to evaluate the testimony.” State v. Brooks, 513 S.W.2d 168, 173-174[9-10] (Mo.App.1973). It is always relevant to show the interest or bias of a witness, State v. Nebbitts, 498 S.W.2d 762, 764[2] (Mo.1973), even though such evidence has no bearing on the issues of the case. Thornton v. Vonallmon, 456 S.W.2d 795, 798[2] (Mo.App.1970). How far the inquiry into the bias or interest goes is left largely to the discretion of the trial court. State v. Pigques, 310 S.W.2d 942, 947[8] (Mo.1958). Absent a clear abuse of discretion, we will not interfere with the trial court’s ruling. Aiple v. South Side Nat'l Bank in St. Louis, 442 S.W.2d 145, 152[7] (Mo.App.1969).

Defendant cites State v. Bradley, 361 Mo. 267, 234 S.W.2d 556, 559[8] (1950), for the proposition that absence of charges against a witness for the same crime is of too doubtful probative force to be admissible to show that the state offered leniency to the witness. In Bradley the evidence was offered by the defense to attack the credibility of the state’s witness in an attempt to establish an offer of leniency had been made. Here the witness admitted the arrangement with the state for leniency on the robbery charge. Confusion appeared only as to Jenkins’ involvement in the murder charge. The trial court did not abuse its discretion by permitting relevant testimony clarifying the murder charge against Jenkins in light of already admitted bargains with the prosecutor’s office. Further it is the general duty of a prosecutor to rectify errors in testimony when the correct information is at his disposal. See State v. Brooks, supra at 174[1-1]; State v. Koonce, 504 S.W.2d 227, 230[2] (Mo.App.1973); State v. McClain, 498 S.W.2d 798, 799-500 (Mo.banc 1973). Defendant’s first assignment of error is without merit.

As his second point defendant contends the trial court erred in refusing to declare a mistrial when, in closing argument, the state urged the jury to consider that the police suspected defendant of the offense in question. Such statement, he contends, violates his presumption of innocence. The contested portion of the argument is as follows:

“MR. COSENTINO: Place yourselves in a situation where if you are carrying a gun in an automobile where would it be if it wasn’t on your person. If you were with two other fellows where would those — if they had guns, where would their guns be in an automobile if "they weren’t on their persons. Everybody’s gun is accounted for, and the gun that fired the fatal shot is under where Sam Neal was seated. There is the circumstance, but that is not the only circumstance. That is not the only circumstance. Sam Neal was given a test for gunshot residue because the police had strong suspicions that he killed—
MR. BUCKLES: I am going to object to that statement.
THE COURT: The jury is instructed to disregard the word ‘strong suspicion.’
MR. BUCKLES: I am going to ask for a mistrial.
THE COURT: Mistrial denied.
MR. COSENTINO: No other reason that they would do that other than that. Why do you think the police would give somebody one of these tests?
MR. BUCKLES: I am going to object.
MR. COSENTINO: This is an inference that can be drawn from the testimony of the officers that were involved.
THE COURT: Be governed by your recollections of the testimony, ladies and gentlemen of the jury.”

There is no question that the accused in a criminal proceeding is presumed innocent until proven guilty. State v. Lee, 488 S.W.2d 272, 273[4] (Mo.App.1972). Defendant’s guilt is a matter to be proved, beyond a reasonable doubt, and the opinion of an individual as to defendant’s guilt cannot be argued to the jury without violating the presumption of innocence. State v. Hess, 240 Mo. 147, 144 S.W. 489, 492[4] (1912). See also Holden v. Berberich, 351 Mo. 995, 174 S.W.2d 791, 792[3] (1943). Prosecutor Cosentino’s speculation as to the police officer’s opinion of defendant’s guilt seems to have little purpose except to express his own views on that subject. This case does not nicely fit the exception that a prosecutor may express his opinion as to a defendant’s guilt when such opinion is clearly drawn from the evidence. State v. Jackson, 499 S.W.2d 467, 471[3] (Mo.1973); 23A C.J.S. Criminal Law § 1104, p. 195. We consider the prosecutor’s closing argument an artless attempt to express his own views based on an inference though the record thinly supports the inference, if at all. However, these remarks must be weighed against the admonition of the Supreme Court in Donnelly v. DeChristoforo, 416 U.S. 637, 646, 647, 94 S.Ct 1868, 40 L.Ed.2d 431 (1974):

. .. Such arguments, like all closing arguments of counsel, are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecuto-rial misconduct they do suggest a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.”

Whether the remarks of counsel in closing argument necessitate the declaration of a mistrial rests largely with the discretion of the trial court and appellate courts will’not interfere unless the record shows an abuse of such discretion to appellant’s prejudice. State v. Wintjen, 500 S.W.2d 39, 42[1] (Mo.App.1973). Every instance where a prosecutor exceeds the limits of legitimate argument is not a cause for mistrial. Declaration of a mistrial is a drastic remedy that should be exercised only in extraordinary circumstances where the prejudice can be removed in no other way, and the trial court can best gauge the prejudice. State v. Raspberry, 452 S.W.2d 169, 173[7-8] (Mo.1970); State v. Phelps, 478 S.W.2d 304, 308[7-9] (Mo.1972). Generally, if the prejudicial effect can be removed through other corrective action and the trial court undertakes such action, mistrial need not be granted. State v. Camper, 391 S.W.2d 926, 928[5] (Mo.1965); State v. Raspberry, supra at 173. To constitute a reversible error or require a mistrial the prejudicial effect of prosecutor Cosentino’s statement must have been such that it could not have been removed by striking and instructing the jury to disregard it, State v. Camper, 391 S.W.2d 92S, 928[2] (Mo.1965). Whether anything more was required was a matter for the court’s discretion and from the record we cannot say as a matter of law that discretion was abused. State v. Tate, 468 S.W.2d 646, 650[7] (Mo.1971). For statements made in oral argument to be reversible error, they must have been “plainly unwarranted and clearly injurious.” State v. Hutchinson, 458 S.W.2d 553, 556[5] (Mo.banc 1970). In light of the substantial evidence against defendant and on consideration of the entire record, we find no reversible error occurred.

Defendant raises two other objections in Ms brief to the effect the negative evidence of other suspects not being booked is incompetent and hearsay. Defendant concedes these points were not preserved, but urges that we consider them under Rule 27.20(c). We have reviewed Ms contentions and find that they do not constitute plain error.

Judgment affirmed.

WEIER, P. J., and DOWD, J., concur.

      . There is some confusion in the testimony whether Jenkins was the subject of one or two robbery charges but it is clear that at least one such charge was pending against him when the “leniency” bargain was made.

      . The defense objected that such evidence was not relevant and the objection was sustained. The state, however, explained the question was in anticipation of the defense’s closing argument relating to the manner in which Jenkins was approached to be a witness. The court then overruled the objection.

      . The offi¿er administering the gunshot residue test did not testify that he suspected or believed .defendant killed Perron Scaife.