author: TURNAGE, Judge.

text:
    In re the MARRIAGE of Betty J. MORRIS, Petitioner/Appellant, and Harry A. Morris, Respondent.
    No. KCD 29936.
    Missouri Court of Appeals, Western District.
    July 31, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 1, 1979.
    Application to Transfer Denied Nov. 14, 1979.
    As Modified on Court’s Own Motion Sept. 4, 1979.

      Robert C. Paden, Michael W. Manners, Paden, Welch, Martin, Albano & Graeff, P. C., Independence, for petitioner/appellant.
    Lee M. Nation, Michael E. Curley, Nation & Curley, Kansas City, for respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   TURNAGE, Judge.

Betty Morris filed for a dissolution of her marriage with Harry A. Morris. The court ordered the marriage dissolved, divided the marital property, made an award of maintenance to Betty and denied her attorney fees. Betty appeals.

On this appeal Betty contends the court erred in the division of marital property, in its valuation of Harry’s stock in a professional corporation, in finding that part of such stock was non-marital property, in the amount awarded for maintenance and in failing to award her attorney fees. Judgment affirmed as modified.

Betty and Harry were married in April, 1953. She was a high school graduate and until six months prior to the marriage had worked as a clerk typist. Harry, whose first wife was deceased, was an attorney in Kansas City who began practicing in 1935. No children were born of this marriage. However, Harry’s eight year old daughter from his first marriage was adopted and reared by Betty.

Subsequent to the marriage, Harry’s practice began to flourish and the parties moved from an apartment to a house they built in South Kansas City. Betty never worked. She did entertain Harry’s clients and business associates, but late in the marriage began to experience some reluctance to continue this activity. The parties acquired a condominium in Florida and spent some time there later in the marriage. Betty liked living in Florida and requested Harry to retire or partially retire so they could spend more time in Florida and traveling, but Harry felt he was unable to do so. The parties separated in May, 1976, when she departed for the Florida home.

Harry practiced with a partnership until 1971 when it was converted to a professional corporation; Harry, with 2500 shares, was the largest stockholder. His earnings from 1972 through 1976 ranged from $97,-000 to $126,000 annually and for 1977 were projected at $114,000.

Betty brought no property to the marriage and, of course, all of her living expenses were supplied by Harry. Prior to her departure, Betty withdrew more than $600 from a joint checking account, overdrew another account by $700, incurred credit card charges of about $3,000, sold a Cadillac purchased by Harry for about $1,000 and sold a mink jacket given to her by Harry for an undetermined amount. Harry paid all of the overdrafts and the charges incurred.

After extensive hearings, the trial court divided the marital property as follows: To Betty he awarded the Florida condominium and all of its furnishings, with an agreed value of $100,000, subject to a mortgage of $34,191 which Betty was ordered to pay; a Pinto automobile with an agreed value of $1,350; a savings account with a $3,000 balance; membership in the Delray Dunes Country Club in Florida with a transfer value of $5,000. To Harry he awarded the family home in Kansas City with an agreed value of $128,500, subject to a mortgage of $38,000 which Harry was ordered to pay; Torotel common stock with an agreed value of $2,218; stock in First Fidelity Investment Trust with an agreed value of $6,678; ownership of all of his insurance policies with a cash value of $17,500 subject to an indebtedness of $14,550; membership in Blue Hills Golf Club with no transfer value; and 1100 shares of stock in the professional corporation found to be marital property and valued by the court at $13,750. The total value of the above property awarded to the wife was $75,150, and that awarded to Harry was $116,096. In addition, the court awarded Betty lump sum maintenance in the sum of $10,000 with half payable in 1977 and half in 1978, and ordered Harry to designate Betty as the sole beneficiary on two insurance policies, subject to their indebtedness. The court awarded Betty maintenance of $1,500 per month and denied her request that her attorney fees of about $4,000 be paid by Harry.

Betty first contends the court abused its discretion in awarding Harry the greater portion of the marital property because she was not guilty of any misconduct, she did not receive more non-marital property than Harry, and her economic circumstances were not superior to Harry. Betty not only contends the court erred in the division it made of the marital property, but contends she should have been awarded a greater share of that property because of the disparity between the economic circumstances of the parties. The major premise of Betty’s argument is that in dividing marital property the norm is an equal division and before a court can vary therefrom it must be shown that such variance is required by a consideration of the factors enumerated in § 452.330.1, RSMo 1978. However, Betty’s premise is faulty, as was pointed out in In Re Marriage of B. K. S., 535 S.W.2d 534, 536[4] (Mo.App.1976) when this court held § 452.330 does not require an equal division of property but rather requires a just division after the court considers all relevant factors including those listed in that section. Thus, Betty’s argument that the court was required to make an equal division unless a consideration of the factors mentioned dictated a contrary result is erroneous. The court was required to make a just division of the marital property.

Betty further contends the court should have awarded a majority of the marital property to her. A review of the division of marital property under Murphy v. CarrOn, 536 S.W.2d 30 (Mo. banc 1976) fails to convince this court that the division is against the weight of the evidence and there is no firm belief that the judgment in that respect is wrong. On the values found by the court, the disparity is not great and as will be pointed out later, although the valuation made of Harry’s stock in the professional corporation was wrong, the division made by the court is not against the weight of the evidence. The parties stipulated Betty was to receive the Florida condominium and Harry was to receive the residence in Kansas City. These two items make up the bulk of the property to be divided. The court was unable to award Betty any of the professional corporation stock because of restrictions placed on it by agreement. This left only the Torotel and First Fidelity stock available for disposition. There was also stock in the KCI Bank, but the parties stipulated this stock had no net value because it was subject to an indebtedness which equalled its value. Thus, the only property the court could have awarded Betty which it did not was the Torotel and First Fidelity stock. The value of these two stocks is not sufficient to make the division of property against the weight of the evidence.

Betty further contends the court should have found some value in benefits enjoyed by Harry for the use of private club facilities and for meals provided at corporation expense for him in a private dining room in the law office. The meals received by Harry had a value of about $650 per year and the private club memberships of which Betty principally complains were actually owned by the corporation, with Harry simply designated as the person authorized to use them. He testified the clubs were used primarily for the entertainment of clients. Betty has not demonstrated any error on the part of the court in failing to ascribe a monetary value to these benefits which should have been taken into consideration in a division of the marital property. In any event, the value would be no more than nominal.

Betty contends the court erred in its determination of the value of 1100 shares in the professional corporation found to be marital property. The parties stipulated the stock had a book value of $15.95 per share. A stock redemption agreement was introduced in evidence by which each shareholder agreed that he would not encumber or dispose of any stock except to the corporation. The corporation agreed to purchase all of the stock of a shareholder upon his death, permanent disability, disqualification to practice law, retirement from active practice at any time after age 65, or his termination of employment by the corporation. The agreement contained a valuation formula for each of the above contingencies on which the corporation would purchase the stock. The agreement provided that on the death or permanent disablement of a stockholder the corporation would pay two times the book value for each share. Upon the shareholder becoming disqualified to practice, the value per share would be its book value plus or minus an amount equal to the per share appreciation or depreciation of fair market value as compared to the cost of any investments or intangibles owned by the corporation. In the event of a shareholder’s retirement after age 65, the purchase price would be negotiated between the shareholder and the corporation. Upon the termination of employment of a shareholder, the value of his stock would be determined by a schedule by which the corporation would pay a fixed percentage of the amount paid for the shares or the book value, whichever was less. The percentage of purchase price increased with the length of time the shares had been owned from July 1, 1974. The applicable percentage for Harry’s stock at the time of trial was in the 2-3 year category (the number of years lapsed from July 1, 1974) and provided the corporation would pay 117% of the amount paid for his shares or the book value, whichever was less. The court chose to value Harry’s marital shares on this basis and since 117% of the purchase price was less than the book value, it assigned a value of $13,750 to the 1100 shares found to be marital. The agreement further contained a definition of book value as being the capital and surplus of the corporation as reflected on its financial records plus the face amount of all accounts receivable not previously charged off as uncollectable, less a discount and reserve for uncollectable or doubtful accounts in the amount of 50% of the accounts receivable, less the notes and accounts payable and all other liabilities of the corporation. The total so computed is, of course divided by the number of outstanding shares. The agreement provided that no value was to be attributed to any good will of the corporation or any unbilled work in process. Insurance policies on the lives of the shareholders were to be valued at their cash surrender value.

The parties meet here in dispute as to which of the valuation methods contained in the agreement the court should have used in valuing the 1100 marital shares. Betty strongly contends the court should have used the method provided for the death of a shareholder, while Harry contends the court used the method which most closely resembled the situation before the court in view of the fact that Harry was neither dead, disqualified to practice nor retired.

The parties led the trial court into error when they successfully argued the court was restricted to one of the valuation methods contained in the redemption agreement. While valuation questions will generally involve market value, the question to be resolved here is the true or actual value of Harry’s marital stock. Stern v. Stern, 66 N.J. 340, 331 A.2d 257, 261 (1975). The court in Stern, considering the valuation of a law partner’s capital account, stated the most useful method for that case was found by looking to the partnership agreement which provided a method of valuation in case of death of the partner. However, the court pointed out the objective was to determine the true value of the partner’s interest. Here, the objective was to determine the true value of Harry’s marital shares, and in arriving at this determination the court was not restricted to various valuation methods provided in the redemption agreement when obviously none of the methods contemplated the situation before the court. Clearly, the valuation method in case of the death of a stockholder would not be appropriate because it provided a premium value for the stocks rather than the true value.

The question of the true value in a professional corporation is difficult because there is no market for such shares and, therefore, market value is not appropriate. However, it would seem the factors mentioned in Annotation Divorce—Value of Interest in Partnership, 74 A.L.R.3d 621, 623 (1976) would be appropriate to consider in corporation stock valuation along with any other relevant factors. The annotation states assets such as capital investments, capital accounts, other fixed shares of partnership worth, accrued equity, accounts receivable, as adjusted, the value of work in progress, appreciation of tangible personalty, goodwill, cash on hand and partnership life insurance should be considered in determining the value of a partner’s interest. It will be noted many of the factors listed in the annotation are contained in the definition of book value in the redemption agreement. However, the court was not restricted to consideration of only the factors listed in the redemption agreement when it arrived at the true value of Harry’s stock. The court was free to receive any relevant evidence on this subject. However, the parties did not introduce any evidence other than the purchase price and the stipulated book value. In that case the court should have taken the book value of Harry’s stock as its true value because it utilized most of the relevant factors which would reveal true value. The court erred in valuing the 1100 shares of marital stock at 117% of purchase price, for a total of $13,750, but rather should have valued the stock at book value of $15.95 a share for a total value of $17,545. However, the small increase in value of the marital stock does not alter the order dividing the marital property and the division made by the court will not be disturbed because of this change in valuation.

Betty next contends the court erroneously found that 1400 of Harry’s shares in the professional corporation were non-marital property. When the corporation was formed, 2500 shares were issued to Harry at a price of $10 per share. Harry stated he paid for these shares by transferring to the corporation his law library with an agreed value of $6,000, his office furniture with an agreed value of $8,000, both acquired prior to the marriage, and $11,000 in cash. The court found that $14,000 of the purchase price for his shares was non-marital property because it constituted property belonging to Harry prior to the marriage, but that $11,000, representing 1100 shares, was marital property. Betty contends an additional 600 shares should have been considered marital property because the law library could not have been acquired prior to 1953 and still have been up-to-date as Harry testified it was in 1971.

The clear inference from Harry’s testimony was that his basic law library was acquired prior to his marriage in 1953 but that after marriage additions to it were charged off as partnership expenses. The library acquired its status as separate property of Harry because it was acquired and title vested prior to marriage. Betty apparently argues marital funds were expended to maintain and update it, but there was no evidence to show this. However, even assuming the use of marital funds does not convert the library to marital property because separate property does not become marital property only by expending marital funds to maintain or improve it. Stark v. Stark, 539 S.W.2d 779, 783[5] (Mo.App.1976).

Betty next strongly contends the maintenance award of $1,500 per month is inadequate. The court awarded Betty $10,-000 in lump sum maintenance, with $5,000 to be paid in 1977 and $5,000 in 1978. This should probably be considered as rehabilitative maintenance because Betty was not employed at the time of the dissolution. Betty contends that at age 50, with only a high school education and no particular skills, there was no evidence she could support herself. She further argues that her standard of living, acquired in almost 25 years of marriage to Harry, of which during the last several he was making about $100,000 a year, requires a greater award of maintenance. In Brueggemann v. Brueggemann, 551 S.W.2d 853, 857 (Mo.App.1977) the court stated:

Reasonable needs as used in the statute [§ 452.335.1(1)] is a relative term. In a marriage of lengthy duration where one spouse has foregone career development, the marital standard of living may serve as an important guide in computing the spouse’s reasonable needs. In a very practical sense it is frequently the best evidence of what the parties have together determined their “reasonable needs” to be.

That case further held the primary means of providing for the future financial needs of a spouse under the Dissolution of Marriage Act is the division of property. However, Betty was not awarded any income producing property, although she was awarded the $3,000 savings account.

Betty presented a breakdown of her financial needs totaling $2,567 per month to sustain her in the standard of living maintained during the marriage. She presented evidence from a CPA that maintenance on the part of Harry was tax deductible to him and taxable to Betty. She requested the court to award her $3,500 per month in maintenance to take into account her tax liability. The court made rather extensive findings of fact and conclusions of law and found Betty’s itemization of living expenses to be excessive. The court found the $1,500 per month maintenance award to be reasonable and consistent with the factors set forth in § 452.355. The court further found Betty could obtain employment as a law office receptionist or a sales clerk.

It is apparent from the court’s findings of fact that the standard of living established during the marriage was not specifically considered by the court in fixing the monthly maintenance award. During this 25 year marriage Betty functioned solely as a homemaker and mother for a daughter from the age of eight years through maturity. Obviously, Betty gave up any career development experience to devote herself to her marriage and her role as a mother. Harry does not contest the fact a maintenance award is proper, but insists $1,500 per month is sufficient. He claims she had not at trial time had to abandon her lifestyle because of a shortage of funds. However, after payment on the house mortgage, Betty had only $1,100 per month for all of her other expenses. Admittedly the Florida condominium with its golf club facilities and all the related expenses was well established as the parties’ lifestyle. Harry did not contest Betty’s expense list except as to mostly minor items. He did question her estimate of $300 per month for food, but at the same time listed the same amount for his own food expense in his list of expense.

Harry did have an expense of $2,000 per month to care for his 87 year old mother who was terminally ill. Obviously this-could not continue for long. He was age 65, in good health, and engaged in full time practice with no indication of any diminution in his earnings.

This case calls for application of the rule stated in Brueggemann, supra. This court is of the firm opinion that the judgment awarding Betty $1,500 per month maintenance is against the weight of the evidence and is wrong because the trial court did not give sufficient weight to the marital standard of living. This court has carefully reviewed Betty’s statement of her monthly financial needs and concludes that a reasonable amount, considering the marital standard of living, her age and chances of employment, together with all of the factors listed in § 452.335, is $1,900 per month.

Betty finally contends the court erred in refusing to order Harry to pay her attorney fees in the amount of $4,000. In Roberts v. Roberts, 553 S.W.2d 305, 307[6, 7] (Mo.App.1977) it was held the trial court is given broad discretion in the matter of awarding attorney fees. Section 452.355 provides the court may order a party to pay a reasonable amount for attorney fees. In view of all of the evidence in this case this court cannot find an abuse of discretion in the refusal to order Harry to pay Betty’s attorney fees.

The judgment awarding Betty the sum of $1,500 per month in maintenance is modified to order Harry to pay Betty $1,900 per month in maintenance, and in all other respects is affirmed. The increased maintenance as ordered herein shall be effective and shall be payable from the date the judgment was entered in the trial court. Phillips v. Phillips, 233 S.W.2d 775 (Mo.App.1950).

All concur.

      . All statutory references are to RSMo 1978 unless otherwise specified.


source: Caselaw Access Project

author: HOGAN, Judge.

license: Public Domain

text:
    William K. YOUNG, Plaintiff-Appellant, v. UNITED STATES FIDELITY & GUARANTY CO., a corporation, Defendant-Respondent.
    No. 10480.
    Missouri Court of Appeals, Southern District, Division Two.
    Aug. 2, 1979.
    Motion for Rehearing or for Transfer to Supreme Court Denied Sept. 24, 1979.
    Application to Transfer Denied Nov. 14, 1979.
    L. R. Buehner, Joplin, for plaintiff-appellant.
    John R. Martin, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for defendant-respondent.
   HOGAN, Judge.

Plaintiff William K. Young appeals from the dismissal of his amended petition for actual and punitive damages. The order of dismissal disposes of all issues and all parties in the case and is therefore a final and appealable judgment. Rule 67.03, V.A.M.R.; State ex rel. Schweitzer v. Greene, 438 S.W.2d 229, 231[1] (Mo. banc 1969).

Plaintiff alleged that on April 17, 1972, he was injured while employed by a firm known as Ozark Engineering Company; that the injury arose out of and in the course of his employment and was serious, permanent and disabling. Plaintiff further averred that his employer was subject to the Missouri Workmen’s Compensation Law and was fully insured under that act by the defendant. Defendant paid plaintiff benefits until May 7, 1975, and then discontinued payment. Averring that he was still totally disabled within the meaning of the Workmen's Compensation Law, plaintiff alleged that defendant’s refusal to pay further benefits was intentional, malicious, designed to “deprive plaintiff of his rights” under the Workmen’s Compensation Law and to force him to accept an inadequate settlement of his claim. Plaintiff prayed actual damages in the amount of $50,000 as a result of defendant’s intentional infliction of emotional distress, and further prayed punitive damages in the amount of $500,-000.

The defendant timely filed a motion to dismiss the petition, alleging that plaintiff’s petition failed to state a claim upon which relief could be granted and further alleging in substance that the plaintiff had fully vested the Department of Labor and Industrial Relations with jurisdiction of the cause by filing a claim for compensation with the Division of Workmen’s Compensation. Further, the defendant averred that the court had no jurisdiction of the subject [matter] of the action because: a) the Workmen’s Compensation Law precludes resort to the courts, and b) plaintiff had failed to pursue his remedy before the Division of Workmen’s Compensation. Two documents are attached to and incorporated in the answer. One is a copy of a claim for workmen’s compensation filed by the plaintiff on July 23, 1975. It has been completed on the Division’s form No. 1, prescribed by 8 CSR 50-5.070. The claim recites that plaintiff suffered a severe spinal fracture on April 17, 1972; that defendant has paid compensation in the amount of $11,130, and that the plaintiff has been permanently and totally disabled. The other document attached is an answer to the claim for compensation which avers in very general terms that the plaintiff has received compensation for a period of 159 weeks and medical aid in the amount of $21,220.38 has been furnished. The answer concludes with a request for a pre-hearing conference.

In this court, counsel for plaintiff has sought to improve the record — from his point of view — by amending his petition on appeal. Rule 55.33(b), V.A.M.R., permits amendments to conform to the evidence even after judgment is entered. Plaintiff’s stratagem has the virtue of ingenuity, but little else to commend it. It is unnecessary to define the limits of Rule 55.33(b); it is sufficient to say that almost all good advocates would improve the record on appeal if they were permitted to do so, but in the past we have refused to permit such outright supplementation of the record, and we refuse to permit it here. There is no showing that plaintiff ever sought to amend in the trial court. Plaintiff’s position is much the same as counsel for the appellant in City of Joplin v. Village of Shoal Creek Drive, 434 S.W.2d 25, 28-29[4-7] (Mo.App.1968), and for the reasons stated there, we refuse to consider the extraneous writings plaintiff has laid before us.

On the merits, plaintiff’s position is best understood in light of the principle he has invoked. All are familiar with the doctrine of “bad faith” as applied to claims made against the insured by persons to whom the insured is liable. In such cases it is held that an insurer must act in good faith to make whatever payment or settlement an honest judgment and discretion would dictate; failure to comply with this duty may subject the insurer to liability in tort to the insured. Zumwalt v. Utilities Ins. Co., 360 Mo. 362, 370, 228 S.W.2d 750, 753[2] (1950); Craig v. Iowa Kemper Mut. Ins. Co., 565 S.W.2d 716, 722-723 (Mo.App.1978); McCombs v. Fid. & Cas. Co. of N. Y., 231 Mo.App. 1206, 1216-1222, 89 S.W.2d 114, 118-121 (1936). Recovery is quite convincingly rationalized on the ground that the reservation of the exclusive right to contest or negotiate the claim against its insured imposes a fiduciary duty upon the carrier. Craig v. Iowa Kemper Mut. Ins. Co., supra, 565 S.W.2d at 723; Annot., 34 A.L.R.3d 533 (1970). Actions brought against insurers for breach of this duty are referred to by the insurance industry itself as “third party bad faith” claims.

Over the past ten years, a number of decisions have by analogy extended the notion of “good faith” to claims made by the insured upon his policy. The precedents applying the “good faith” principle to claims made by the insured hold that an insurance company, in addition to its liability on the contract, may also be held to respond in tort if it fails to deal fairly with the insured in the settlement of a claim under the policy or acts oppressively or dishonestly to mitigate its liability to the insured. Findley v. Time Ins. Company, Ark., 573 S.W.2d 908 (banc 1979); Gruenberg v. Aetna Ins. Co., 9 Cal.3d 566, 108 Cal.Rptr. 480, 510 P.2d 1032 (bank 1973); Anderson v. Continental Ins. Co., 85 Wis.2d 675, 271 N.W.2d 368 (1978). This is the principle plaintiff seeks to apply here. Cases in which the “bad faith” doctrine is invoked by the insured against his insurer are referred to as “first party” bad faith claims by the insurance industry. When the occasion has arisen, our courts have noted that the “first party” bad faith doctrine has not been recognized in this jurisdiction. Craig, supra, 565 S.W.2d at 720, n. 3; Dyer v. General American Life Ins. Co., 541 S.W.2d 702, 704[2] (Mo.App.1976). We have no reason to examine the rationale of the “bad faith” cases here, for we have concluded that it should not be applied to workmen’s compensation claims, even if it were recognized.

It has often been held that the Missouri Workmen’s Compensation Law is wholly substitutional in nature and does not bar common law actions which have not been abolished in clear and unambiguous terms, Harryman v. L & N Buick-Pontiac, Inc., 431 S.W.2d 193, 196 (Mo. banc 1968), but even so, there is no reason to apply the “first party” bad faith principle to a situation already covered by legislation sufficient to deter the conduct complained of. If the procedure outlined by the Division of Workmen’s Compensation is followed, 8 CSR 50-2.010, the Division is kept continuously advised of the status of a claim for compensable injury; informal conferences may be held even if no claim has been filed. Moreover, the Division has the authority to make a temporary or partial award at any time, and ample authority to enforce its order. Section 287.510, RSMo 1978, V.A.M.S. The trial court’s ruling was correct; we therefore affirm the judgment of dismissal even though the reasons assigned may have been erroneous or incomplete. Spiking Sch. Dist. No. 71, DeKalb County v. Purported “Enlarged Sch. Dist. R—II DeKalb County,’’ 362 Mo. 848, 859, 245 S.W.2d 13, 16—17[2] (banc 1952).

All concur.

      . Since the enactment of Laws of Mo. 1976, p. 768, effective March 1976, now codified as § 536.031(5), RSMo 1978, V.A.M.S., we are required to notice the regulations of state agencies.

      . For those interested, if any, there is a good deal of general literature on the subject. Justice Smith’s opinion for the Arkansas court is a masterful exposition and analysis of the general law; periodical literature is cited there and in Lawton v. Great Southwest Fire Ins. Co., N.H., 392 A.2d 576 (1978). Insurance counsel themselves seem to accept the idea that the insurer has an implied duty to act in good faith in settling claims made by the insured. See R. Langdon and C. Sytsma, “The Duty of Good Faith and Fair Dealing and the Pre-Adjudicato-ry Role of the Insurance Company Advocate”, 45 lns.Couns.J. 309, 312-313 (1978).


author: CRIST, Judge.

text:
    STATE of Missouri, Respondent, v. John COPLIN, Appellant.
    No. 40981.
    Missouri Court of Appeals, Eastern District, Division Three.
    August 7, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      James F. Booth, Clayton, for appellant.
    Thomas L. Gross, Asst. Pros. Atty., St. Louis, for respondent.
   CRIST, Judge.

Appeal from dismissal of trial de novo in circuit court after defendant was convicted in magistrate court of beating a dumb animal.

Defendant was convicted by a jury in magistrate court of wilfully, unlawfully,. and maliciously beating a dog on December 22, 1976, in violation of § 578.055, RSMo. 1978. He was fined $50.00 and sentenced to three months in the county jail. He appealed to the circuit court.

The case was set for trial de novo in circuit court on April 5, 1978. On that date the state amended its information to show the date of the alleged beating as December 13, 1976. Defendant was granted a continuance because of this amendment. His motion to dismiss because the amendment was filed more than one year after December 13, 1976, was denied. Trial was eventually set for September 14, 1978.

Although his lawyer appeared, defendant failed to appear on September 14, 1978. His appeal was dismissed. The case was remanded to the magistrate court for execution of sentence.

On September 15, 1978, defendant filed a motion in the circuit court to reinstate his appeal. A hearing was held on the motion on October 3, 1978. Defendant testified that car trouble and illness kept him from appearing on September 14, 1978. The circuit court was not impressed with his testimony and overruled the motion to reinstate the appeal. Defendant appeals. We affirm.

Defendant contends the circuit court erred in dismissing his appeal to that court. Our decision is dictated by State ex rel. Garrett v. Gagne, 531 S.W.2d 264 (Mo. banc 1975). In Gagne, the Missouri Supreme Court held that a circuit court has discretionary power to dismiss an appeal from a municipal court judgment and remand the cause for execution of the municipal court judgment when the appellant fails to appear in the circuit court for de novo reliti-gation of the original charge. The court there reasoned that the municipal court’s judgment was not entirely vacated but merely stayed under Rules 37.81 and 37.82. These rules pertain to municipal courts. Similar rules apply to magistrate courts.

Rules 22.12 and 22.14 provide that the filing of an appeal from a magistrate court judgment to the circuit court does not vacate or annul the judgment of the magistrate court, but merely stays execution of the judgment. Thus, under Gagne, the circuit court had authority to remand this case to the magistrate court for execution of sentence when the defendant did not appear. The record shows no abuse of discretion.

Defendant also contends the circuit court erred in allowing the state to amend the information in circuit court since the amendment amounted to filing a new charge against the defendant. There is no need to answer this contention. The defendant was never tried under the amended information. He suffered no prejudice from the circuit court’s ruling.

Defendant finally contends the magistrate court information was fatally defective since it charged him with “wilfully, unlawfully and maliciously” beating an animal and not with “cruelly, in a willful and malicious manner” beating an animal. This latter alternative uses the exact words of the statute while the former does not.

We do not agree with defendant’s contentions. Informations charging misdemeanors do not require the same strictness as those charging felonies. State v. Shell, 571 S.W.2d 798, 801 [9] (Mo.App.1978). The extremely technical requirements of common law indictments and informations are no longer followed. Morgan v. State, 472 S.W.2d 373, 374 [1-2] (Mo. 1971). The variance between the words of the information and those of the statute did not so prejudice the substantial rights of the defendant as to prevent the application of Gagne. When defendant failed to appear in circuit court, the trial court properly remanded the case to the magistrate court for execution of sentence.

The judgment is affirmed.

REINHARD, P. J. and GUNN, J., concur.


author: SATZ, Judge.

text:
    In the Matter of the ESTATE of Elbert C. FIELDS, Deceased.
    No. 40307.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 7, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      Thomas E. Toney III, Fordyce & Mayne, St. Louis, for appellant.
    Michael A. Markenson, Rosenblum, Gold-enhersh, Silverstein & Zafft, Clayton, for respondent.
   SATZ, Judge.

This cause was tried before the trial court without a jury. The facts are not in dispute.

In 1972, the Probate Court of St. Louis County appointed Olive Fields the executrix of the estate of her deceased husband, Elbert C. Fields. Subsequently, as her deceased husband’s personal representative, she filed suit in the United States District Court, Eastern District of Missouri, under the Illinois Wrongful Death Act against the Chicago, Rock Island and Pacific Railroad Company for the wrongful death of her husband, which had occurred in Illinois. She lost that cause at trial and on appeal, and both the federal district and appellate courts taxed costs against her, as plaintiff, Olive Fields, Executrix of the Estate of Elbert C. Fields, in accord with the caption and style of that cause.

To satisfy these costs, the railroad secured a writ of garnishment from the federal district court against a checking and a savings account, both of which carried the name of the Estate of Elbert C. Fields, Deceased. Because the garnishment only partially satisfied the assessed costs, appellant, William M. Gibbons, as trustee for the railroad, petitioned the Probate Court of St. Louis County to allow the remainder of the costs assessed in the wrongful death action as costs of administration of the Estate of Elbert C. Fields (Fields Estate). The Probate Court denied appellant’s petition, and the Circuit Court of St. Louis County affirmed the denial. We affirm the judgment of the Circuit Court.

Appellant Gibbons contends that the collective costs assessed in the wrongful death action, when reduced to judgment, became a judgment entered by the federal court against Olive Fields as the Executrix of the Estate of Elbert C. Fields and that the Full Faith and Credit Clause of the United States Constitution, Art. 4, § 1, required the Probate Court of St. Louis County to enforce the federal judgment, as a foreign judgment, against the Fields Estate. We do not agree.

At the outset, we note that jurisdiction of the federal court was invoked on the grounds of diversity of citizenship. Thus, the federal court, in effect, sat as a Missouri Court, Guaranty Trust Co. v. York, 326 U.S. 99, 108, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and implemented Missouri’s choice of laws to the wrongful death action, Klaxon Co. v. Stentor Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), which, in the instant case, required the application of Illinois law to the substantive issues raised. See State ex rel. Kan. City Stock Yards v. Clark, 536 S.W.2d 142, 145-146 (Mo. banc 1976); State ex rel. Broglin v. Nangle, 510 S.W.2d 699 (Mo. banc 1974). From this, it follows that the judgment of the federal court, in effect, would be nothing more than a judgment of a Missouri Court, and enforcement of that judgment, in the present circumstances, would rest on the doctrine of res judicata rather than full faith and credit. However, both parties apparently consider the full faith and credit doctrine as being the only relevant doctrine. Without explicit reasoning, they apparently consider the assessment of costs by the federal court to be a procedural matter, which, they agree, is controlled by federal law. From this, they apparently conclude that when the costs were reduced to judgment, the judgment for costs was a judgment of the federal court implementing federal statutory law, which, insofar as a Missouri Court is concerned, would be a judgment of a foreign court, not merged with the judgment on the merits.

For our purposes here, the legal effect of the differences between the two doctrines would be insignificant and the two doctrines can be considered as functional equivalents. See Riley v. New York Trust Co., 315 U.S. 343, 349, 62 S.Ct. 608, 86 L.Ed. 885 (1942); See also Jackson v. Hartford Accident and Indemnity Company, 484 S.W.2d 315 (Mo.1972). Furthermore, application of either doctrine to the present issues would not cause the legal results urged by appellant. Thus, we do not decide which of the two doctrines is the relevant doctrine but assume, as the parties do, that the doctrine of full faith and credit is appropriate.

As a general rule, giving full faith and credit to a foreign judgment precludes any inquiry into the merits of the underlying cause of action, and, also, precludes any questioning of the logic or consistency of the decision or the validity of the legal principles upon which the judgment is based, e. g., Gibson v. Epps, 352 S.W.2d 45, 47 (Mo.App.1961). Also, generally speaking, a foreign judgment, given full faith and credit, may be attacked only for lack of jurisdiction over the parties or subject matter, for failure to give proper notice, or, for fraud in the procurement of the judgment, e. g. Scott v. Scott, 441 S.W.2d 330 (Mo.1969); Young Elec., Inc. v. Susman, 533 S.W.2d 625 (Mo.App.1975). Nonetheless, the court giving full faith and credit to a foreign judgment must still determine what party was concluded by the foreign judgment, because the foreign judgment can be enforced only against the party bound by that judgment. See First Nat. Bank of Brush, Colo. v. Blessing, 231 Mo.App. 288, 98 S.W.2d 149 (1936), and First Nat. Bank v. Dowdy, 175 Mo.App. 478, 161 S.W. 859 (1913).

We first determine, then, whether the Fields Estate was a party to the federal litigation. Certainly, a decedent’s estate can act only by and through the decedent’s personal representative. In re Estate of Cromwell, 522 S.W.2d 36 (Mo.App.1975). However, the converse does not necessarily follow, and every act of the personal representative does not necessarily bind the estate. See Blessing and Dowdy, supra. More specifically, in the instant case, if the acts of the executrix were not an exercise of rights on behalf of the Fields Estate to secure benefits for the estate, then, the Fields Estate would not be a party to those acts and would not be bound to satisfy the costs of those acts. In re Peters, 128 Mo.App. 666, 107 S.W. 406, 408 (1908). Thus, to determine whether the Fields Estate was a party to the wrongful death action, we look initially to that cause of action to determine what rights Olive Fields sought to enforce and what benefits she sought to gain. As previously noted, on the present facts, the definitions of these substantive rights and these benefits are found in the Illinois Wrongful Death Act, Ch. 70, §§ 1-2.1, Ill. R.S. (1973), creating that cause of action. Klaxon Co. v. Stentor Co., supra; State ex rel. Broglin v. Nangle, supra. The pertinent provisions of that Act provide that the person responsible for the death is liable for the death, if that person would have been liable for the injuries had the decedent lived, Ch. 70, § 1, Ill. R.S. (1973) and that where, as here, the decedent leaves a widow and children, the wrongful death action “shall be brought by and in the names of the personal representatives of (the) deceased person, and, . . ., the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse (formerly widow) and next of kin of such deceased person and . . . the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the surviving spouse and next of kin of such deceased person”. Ch. 70, § 2, Ill. R.S. (1973). The damages recovered are not required to be distributed or administered by a probate court, but, rather, “(t)he amount recovered in any such action shall be distributed by the court in which the cause is heard . . .”, and distribution is not made according to any directions of the decedent, but, rather, the damages are to be distributed “to each of the surviving spouse and next of kin . in the proportion, . . ., that the percentage of dependency of each such person upon the deceased person bears to the sum of the percentages of dependency of all such persons upon the deceased person.” Ch. 70, § 2, Ill. R.S. (1973).

As can readily be seen, these provisions simply reflect the basic provisions of Lord Campbell’s Act, the prototype of most wrongful death acts. 2 Harper and James, The Law of Torts, Ch. XXIV (1974). The provisions create a new cause of action on behalf of the surviving spouse and next of kin to compensate them for the loss they suffer through the death of the decedent. Although the cause of action is brought in the name of the personal representative of the decedent, the action is not one on behalf of his estate nor is it a remedy for the wrong done to the decedent. The Act seeks rather to protect the interests of specifically named survivors and the action brought under it is for the exclusive benefit of those so named. Thus, Olive Fields, proceeding under this Act, was merely a nominal party. She did not act in her general capacity as Executrix of the Estate of Elbert C. Fields, but, rather, sued as a statutory trustee on behalf of herself, individually, as the widow of Elbert C. Fields, and for her two children, as his next of kin. Van Meter v. Goldfarb, 317 Ill. 620, 148 N.E. 391, 392 (1925); City of Chicago v. Major, 18 Ill. 349, 358 (1857); Wright v. Royse, 43 Ill.App.2d 267, 193 N.E.2d 340, 351 (1963); McDavid v. Fiscar, 342 Ill.App. 673, 97 N.E.2d 587, 589 (1951). This concept is no different than and fits comfortably within Missouri’s concept of the rights which are enforced by a wrongful death action when brought by the personal representative of a decedent. See Caen v. Feld, 371 S.W.2d 209 (Mo.1963); Demattei v. Missouri-Kansas-Texas R. Co., 345 Mo. 1136, 139 S.W.2d 504 (1940); Troll v. Laclede Gaslight Co., 182 Mo.App. 600, 169 S.W. 337 (1914).

Furthermore, the proceeds sought in the wrongful death action were not assets of the decedent, for they did not belong to his estate while he lived; and, if recovered after his death, they would not go into the general administration of his estate for distribution to the legatees, distributees and creditors of his estate, but would be held in trust by the personal representative for the benefit of the statutory beneficiaries, Olive Fields, as decedent’s widow, and his children, as next of kin. In short, the proceeds sought were not and would not become general assets of the Fields Estate, see, e. g., Wright v. Royse, supra and Caen v. Feld, supra. As the Court specifically stated in the Feld case: L.C. 212

“There were no assets in the estate . The only asset listed in the probate proceedings was the claim (for wrongful death) upon which this suit was based, which in fact was not an asset of the estate because such sum that may be recovered does not become a part of the general assets of the estate subject to the claims of creditors, but it is for the exclusive benefit of the persons designated by the wrongful death statute as beneficiaries.”

Viewed in light of these principles, Olive Fields, as Executrix of the Fields Estate, was merely the nominal party in the wrongful death action, and, in that action, she did not seek to enforce any rights on behalf of the Fields Estate nor did she seek any benefits which were or would become general assets of the Fields Estate. Thus, the Fields Estate was not a party to the wrongful death action and the judgment for costs entered in that action cannot be enforced against the Fields Estate. In re Whitlow’s Estate, 184 Mo.App. 229, 167 S.W. 463, 468 (1913); In re Peters, supra.

Appellant cites Kass v. Gulf, Mobile & Ohio R.R., 91 F.Supp. 1016 (W.D.Mo.1950), as support for his contention that the federal court’s judgment for costs, in the present case, was a judgment against the Fields Estate. In the Kass case, the Federal District Court, Western District of Missouri, assessed costs incurred in an unsuccessful wrongful death action against the decedent’s personal representative and explicitly refused to assess those costs against the decedent’s widow and next of kin, because the widow and next of kin were not named as parties plaintiff. The court did not specifically require that the assessed costs be satisfied by estate assets. Arguably, by its refusal to assess costs against the widow and next of kin, the court may have implied this requirement as an ultimate conclusion. However, the court based its decision on its interpretation of our state statute permitting the taxing of costs against the real party in interest, § 1421 RSMo, now § 514.-210 RSMo. That interpretation may have been reached by an overly restrictive method of statutory construction, see State ex rel. Burtrum v. Smith, 357 Mo. 134, 206 S.W.2d 558, 563-564 (banc 1947), and we are neither persuaded nor constrained to follow its possible implications.

In addition, appellant cites Berner v. British Commonwealth Pacific Airlines, Ltd., 362 F.2d 799 (2d Cir. 1966), cert. denied, 385 U.S. 948, 87 S.Ct. 322, 17 L.Ed.2d 227 (1966), as support for his contention that the costs incurred by a decedent’s personal representative in an unsuccessful prosecution of a wrongful death action should be assessed against decedent’s estate. In the Berner case, co-executors unsuccessfully brought suit for wrongful death on behalf of the widow and children of the decedent. On appeal, the sole question was whether the assessed costs were excessive and not whether the trial court could or should assess costs against the estate. The appellate court held the costs were not excessive, but there is no clear indication that the estate was to bear the burden of those costs. As a matter of fact, the court noted that the wrongful death action was brought by the executors for and on behalf of the widow and children of the deceased, and the executors also argued that “such heavy charges should not be imposed upon the widow and children . ”, Id. at 801. Unless the widow and children were the sole beneficiaries of the estate, and that fact is not clear, the court and executors may well have been acknowledging, by their respective statements, that the widow and children, as the real parties in interest, would bear the assessed costs, rather than the estate.

The judgment of the Circuit Court is affirmed.

DOWD, P. J., and CRIST, J., concur.

      . With certain aberrations, see Addison v. Health & Hospital Governing Com'n, 56 Ill.App.3d 533, 14 Ill.Dec. 7, 9, 371 N.E.2d 1060, 1062 (1977), this continues to be the Illinois courts’ interpretation of their Wrongful Death Act. Wilbon v. D. F. Bast Co., Inc., 73 Ill.2d 58, 22 Ill.Dec. 394, 398, 382 N.E.2d 784, 788 (1978). But see Franciscy v. Jordan, 43 Ill.App.2d 344, 193 N.E.2d 219, 224 (1963).

      . A recent statutory addition to the Illinois Wrongful Death Act provides a method for the appointment of a special administrator when “the only asset of the deceased estate is a cause of action arising under this Act . .”. Ch. 70, § 2.1, Ill. R.S. (1977). This reference to the wrongful death action as an estate asset is simply legislative shorthand or acknowledgement of the procedural legal fiction that, after death, an administrator can be appointed only if there is an estate subject to possible administration. As noted, substantively, the action is not a general asset of the decedent’s estate. See Caen v. Feld, 371 S.W.2d 209, 212 (Mo.1963).

      . In this opinion, we address the only issue raised, the issue of full faith and credit. A related issue not directly addressed is whether, under Missouri law, the costs incurred in the unsuccessful prosecution of a foreign or domestic wrongful death action by a decedent’s representative should be allowed as costs of administration of the decedent’s estate. Research has disclosed no Missouri case directly addressing this issue, and in the few other jurisdictions where this issue has been considered, the courts have held or stated that the costs so incurred should not be allowed as costs of administration. State ex rel. Baltimore & O. R. Co. v. Daugherty, 138 W.Va. 144, 77 S.E.2d 338, 341 (1953); Pettibone v. Moore, 223 Ind. 232, 59 N.E.2d 114, 116 (1945).
      However, forceful arguments can be made for the allowance of such costs as costs of administration. In general, the arguments are made that the proceeds of the wrongful death action can be sensibly construed to be assets of the decedent’s estate; that refusal to allow such costs as costs of administration places the estate’s legal representative in an unenviable and, perhaps, an untenable position, for, on the one hand, he is required to initiate a wrongful death action for another’s benefit, while, on the other hand, he runs the risk of being held personally responsible for the costs of that action; and that if the decedent had lived and had unsuccessfully prosecuted an action for his injuries, the costs of the action would have depleted his estate, and the distributees and the creditors of his estate would have had no more control and would have been no less affected by that depletion than they would be if the decedent had died from his injuries and the costs of the wrongful death action were satisfied out of his estate. See dissenting opinion, State ex rel. Baltimore & O. R. Co. v. Daugherty, supra, 77 S.E.2d at 341-349.
      The basic reasoning of the present opinion answers the thrust of these arguments. Additionally, we note that to require the estate to pay for the costs of the wrongful death action would permit the statutory beneficiaries to finance their personal cause of action at the expense of the distributees and creditors of the decedent’s estate. Furthermore, the defendant in the wrongful death action can request the costs of that action to be secured and, thus, lessen or obviate any financial risk resulting from his inability to satisfy those costs out of estate assets. However, the distributees and creditors of the estate have no control over the wrongful death action and, thus, the financial risk created for them by allowing the estate assets to satisfy the costs of a wrongful death action could not be similarly lessened or obviated.


author: PUDLOWSKI, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Seibert Ray MEDLEY, Defendant-Appellant.
    No. 40342.
    Missouri Court of Appeals, Eastern District, Division One.
    Aug. 14, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      Paul J. Passanante, Wolff, Frankel, McConnel & Passanante, Clayton, for defendant-appellant.
    George A. Peach, Circuit Atty., David O. Fischer, Asst. Circuit Atty., St. Louis, John D. Ashcroft, Atty. Gen., Marjorie Wholey Haines, Richard Thurman, Michael P. Done-gan, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   PUDLOWSKI, Judge.

Defendant appeals from a jury conviction of the crimes of Robbery in the First Degree, § 560.135 RSMo.Supp.1975, and Armed Criminal Action, § 559.225 RSMo.1976. The Second Offender Act, § 556.280 RSMo. 1969, was invoked and the trial court sentenced defendant to twenty years imprisonment for the robbery conviction and three years for Armed Criminal Action.

Defendant’s first point on appeal is that the trial court erred by sentencing him pursuant to the Second Offender Act. In order to invoke the Second Offender Act the prosecutor must have proved that the defendant had been convicted, imprisoned and subsequently discharged for a prior felony. Defendant maintains that the only evidence offered to prove the prior felony was the testimony of James Barnes, Deputy Clerk of the St. Louis Circuit Court of Criminal Causes. The deputy clerk testified that a prior judgment in that circuit court had been entered against defendant for the crimes of Burglary Second Degree and Larceny. This testimony was based solely on the contents of an original record of the St. Louis Circuit Court of Criminal Causes. Defendant argues that the deputy clerk’s testimony was incompetent evidence because the original record of the circuit court contained neither the signature of a judge, nor seal of a court in violation of § 490.130 RSMo.1969.

It should first be pointed out that defendant is mistaken in alleging that the only evidence of his prior conviction and imprisonment was the deputy clerk’s testimony. The record indicates that after the deputy clerk testified the prosecutor introduced a copy of a “Certified Transcript of Serial Record” as further proof of the defendant’s prior conviction. This document was certified by the Supervisor of the Division of Classification and Assignment, Department of Corrections, State of Missouri, and was signed and attested to by Joseph P. Roddy, Clerk of the Circuit Court of the City of St. Louis and by Floyd McBride, Presiding Judge of the Circuit Court of the City of St. Louis. The copy of the serial record was fully attested to as required by § 490.130 RSMo.1969.

Defendant’s objection to the admission of the deputy clerk’s testimony is founded on an erroneous interpretation of the purpose and applicability of that statute. The state produced the original records of the St. Louis Circuit Court of Criminal Causes. These records were identified by the deputy clerk, their custodian, and served as the basis of his testimony. Defendant complains that the original records of the Circuit Court did not comply with § 490.130 RSMo.1969. This precise contention was considered long ago and found to be without merit in Carp v. Queen Insurance Company, 203 Mo. 295, 101 S.W. 78 (1907). In that case the Supreme Court of Missouri explained the statute was enacted to provide a convenient method of proving the contents of records by certified copies thereof. As the court stated:

It was not the purpose of this statute to exclude original instruments, which have been properly identified as such. * * * To hold otherwise would be to hold that an original instrument fully identified is not evidence, but a copy of it would be. We think this objection is untenable. Carp, supra, 101 S.W. 89.

Defendant also contends that the elements of imprisonment and subsequent discharge, necessary to the application of the Second Offender Act, were not proved beyond a reasonable doubt. The entry of judgment and serial record both state defendant was convicted upon a plea of guilty to the crimes of Burglary and two counts of Larceny. The judgment states the sentence to be three years for the crime of Burglary Second Degree and three years for the Larceny crimes. These sentences were to be served consecutively for a total of six years. The serial record indicates the sentence to be six years, three and three consecutive. Each document reveals that the judgment was entered in the City of St. Louis and that the sentence was pronounced on May 21, 1957. The serial record indicates that defendant was subsequently discharged from the Missouri Department of Corrections on November 28, 1960. Defendant argues the serial record states “Computation of Sentence, November 28, 1960.” Defendant asserts that use of the word “computation” renders his previous discharge indefinite. This argument apparently follows from a clerical error in preparing the trial transcript. By referring to the actual copy of the serial record, which was in evidence, it can be determined that the trial transcript should read “Commutation of Sentence, November 28, 1960.” This evidence is such that it is clear beyond a reasonable doubt that the defendant had been previously convicted, imprisoned and discharged for the crimes of Burglary and Larceny exactly as the State alleged in attempting to invoke the Second Offender Act.

Defendant’s second contention is that the trial court erred in admitting evidence relating to his escape from the St. Louis City Municipal Jail. Defendant argues that the court erred because proof of his escape was neither clear nor convincing and because the escape was irrelevant to the offenses charged. We do not agree.

The evidence shows that on May 7, 1977, Henry Daniel Moore, a correctional officer, was on duty on the sixth floor of the St. Louis City Municipal Jail. At about 3:30 a. m. Moore discovered that a few rooms that were supposed to be occupied had been vacated. Moore immediately made a head count and ascertained that six inmates were missing. Defendant was one of the missing men. Defendant and his companions effected the escape by cutting the wire mesh screen and sawing a bar in a sixth floor window. The men climbed down the building, using the bar covered windows as a step ladder, to a point twenty feet above the ground. There the inmates jumped to the ground and scaled a fence. Defendant was arrested the following day in Granite City, Illinois. After being given his constitutional rights, defendant stated he needed to be taken to a hospital because he injured his ankle while escaping from the jail. This evidence conclusively shows that defendant escaped the St. Louis City Municipal Jail and his contention that the evidence on this point is not clear and convincing is without merit.

Concerning the use of evidence of the escape to prove defendant’s guilt of the crimes of robbery and armed criminal action, it is settled law that flight is relevant circumstantial evidence that may be considered along with other evidence bearing on the commission of the crimes charged. State v. Castaldi, 386 S.W.2d 392, 395 (Mo.1965); State v. Thompson, 363 S.W.2d 711, 715 (Mo.1963). The underlying theory is that unexplained flight indicates a consciousness of guilt, U. S. v. Gicinto, 114 F.Supp. 204, 205 (W.D.Mo.1953), and a desire to avoid trial. It is true, as defense counsel points out in his brief, there could be a number of other reasons why defendant fled the jail. But, defense counsel had the right to refute the incriminating circumstances of the escape, State v. Burns, 322 S.W.2d 736, 742 (Mo.1959), and was free to persuade the jury that defendant escaped for reasons other than he was guilty and feared prosecution. State v. Craft, 344 Mo. 269, 126 S.W.2d 177, 180 (1939). Defendant, who did not take the stand, obviously failed to so persuade the jury. The fact that defendant fled the jail, and not the place where arrested, does not destroy the inference of guilt that arises from his unexplained flight. State v. Rutledge, 524 S.W.2d 449, 458 (Mo.App.1975). Nor is the evidence rendered inadmissible because defendant escaped thirteen weeks after his arrest. The amount of time between defendant’s arrest and escape merely affects the weight of the evidence. State v. Rutledge, supra. Under the circumstances defendant’s flight and the attendant circumstances were for the jury to consider.

Prior to submitting the case to the jury a conference was held between the court and the parties concerning the jury instructions. Defendant proposed and the court rejected defendant’s instructions A and B. However, the court accepted instruction number 10, MAI-CR 3.60, as submitted by defendant. Defendant argues that the court erred by refusing instructions A and B and by submitting instruction number 10 to the jury.

The trial court did not err by refusing the tendered instructions. Proposed instruction A read:

If you do not find that the defendant, after the incident in question and while confined, broke out or left the Municipal Jail of the City of St. Louis for the purpose and with the intent to avoid trial for the offense with which he is charged in this cause, then such breaking out or leaving is a circumstance which may not be taken into account or consideration by you in connection with all the other facts and circumstances in the case in determining the guilt or innocence of the charge placed against the defendant.
NOT IN MAI
SUBMITTED BY DEFENDANT.

Refused instruction B stated:

The intentional flight or concealment of a defendant immediately after the commission of a crime or after he is accused of a crime that has been committed, is not of course sufficient in itself to establish his guilt; but is a fact which, if proved, may be considered by the jury in the light of all other evidence in the case, in determining guilt or innocence. Whether or not evidence of flight or concealment shows a consciousness of guilt, and the significance to be attached to any such evidence, are matters exclusively within the province of the jury.

NOT IN MAI

SUBMITTED BY DEFENDANT

Both instructions A and B are prohibited by MAI-CR 5.40 which states:

No so-called flight instruction or counter-flight instruction may be given. This rule applies both to (1) instructions permitting the jury to consider or draw inferences from a defendant’s flight in determining his guilt or innocence, and (2) those directing the jury’s attention to any explanation or excuse for what appears to have been flight.
Evidence of a defendant’s flight and any explanation or excuse therefor is admissible. In addition counsel may draw the jury’s attention to the evidence and argue permissible inferences or lack of them to the jury.

Instruction A is a counter-flight instruction expressly forbidden by the first sentence of MAI-CR 5.40. Instruction B attempts to school the jury as to the inferences which may be drawn from the defendant’s flight. Thus instruction B is prohibited by clause (1) of MAI-CR 5.40. Defendant’s trial began on March 20, 1978, well after the date MAI-CR 5.40 became effective, March 1, 1975. Therefore, the trial court was required to follow that rule and committed no error in refusing the proposed flight instructions.

Defendant’s allegation that the trial court erred in submitting instruction number 10 to the jury is also without merit. That instruction was tendered by defendant. Therefore defendant is precluded from complaining of the effect of instruction number 10 by Rule 26.06, which states: “A defendant in any criminal case shall have no just cause for complaint because: (1) error was committed during the trial at his instance or in his favor, * * *” State v. Nelson, 459 S.W.2d 327, 334 (Mo.1970).

Because of their similarity defendant’s fourth and fifth allegations of error will be considered together. In his fourth point on appeal defendant alleges that the trial court erred in submitting instruction number 5. This instruction informed the jury of the law applicable to the First Degree Robbery charge. Instruction number 5 read:

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:
First, that on January 31, 1977, in the City of St. Louis, State of Missouri, Lillian Cermak had possession of a quantity of drugs and money, and
Second, that at the time and place the defendant took the property from Lillian Cermak against her will by causing her to fear immediate injury to her person, and
Third, that the defendant took the property with the intent to permanently deprive Lillian Cermak of the property and to convert it or any part of it to the use of the defendant.
Then you will find the defendant guilty under Count I of robbery in the first degree.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.

Defendant contends that the evidence did not support submission of the above instruction because the State failed to prove two essential elements of the offense of robbery in this case: (1) that Lillian Cermak had possession of a quantity of drugs and money and (2) that defendant took the drugs and money from Lillian Cermak against her will by causing her to fear immediate injury to her person. Defendant’s fifth contention is that the trial court erred in overruling his motion for acquittal at the close of the State’s evidence because the State proved neither that the property was taken in the presence of Lillian Cermak nor that it was taken by putting her in fear of injury to her person.

The evidence shows that Lillian Cermak was part owner of Cermak’s Pharmacy, Inc. Mrs. Cermak was behind a counter of the store when the defendant entered. Defendant flourishing a gun, announced he was going to rob the store. All the occupants of the store, including Lillian Cermak, were forced to lie face down on the floor in an area behind the prescription counter. Defendant then ordered one man, Robert Schaffer, to take bottles of drugs from a shelf marked Darvon, Librium, Valium and Thyroid and place them in defendant’s duf-fle bag. Defendant also took forty dollars from a bag lying in an open drawer.

Defendant’s fourth and fifth points on appeal are without merit. Because the defendant tests the sufficiency of the evidence we must view it in the light most favorable to the State. State v. McIntosh, 559 S.W.2d 606, 607 (Mo.App.1977). First, there was more than enough evidence from which the jury could conclude that defendant took the drugs and money in the presence of Lillian Cermak. Suffice it to say that witnesses Cermak, Schaffer, Peifer and Howell testified that the property was taken from the area behind the prescription counter at the back of the store. Cermak testified she had been ordered by defendant into this area. Her presence behind the prescription counter was confirmed by witnesses Schaffer, Peifer and Howell. Second, there is no merit to defendant’s contention that the State failed to prove Lillian Cermak was put in fear of injury to her person. The evidence shows Lillian Cermak was behind a counter of the store when defendant flourishing a gun announced “Hold up” or “Stick up.” The plain implication of defendant’s use of the gun was that Lillian Cermak was put in fear of injury to her person. State v. Hawkins, 418 S.W.2d 921, 926 (Mo. banc 1967). Defendant contends that Cermak was not afraid because when he demanded the narcotics she responded that she was not a pharmacist and did not know where the narcotics were kept. We do not agree. We conclude that the jury could reasonably interpret the exchange between defendant and Cermak as reflecting that Cermak did not actually know where the narcotics were kept. This interpretation is supported by Cermak’s testimony at trial that although she knew there were narcotics in the pharmacy, she did not know their exact location. Finally, the evidence sufficiently established that Lillian Cermak had possession of the property taken by defendant. For the purpose of the first degree robbery statute, § 560.120 RSMo.1969, possession exists when the victim has control of the property in such a manner or to the extent that violence or putting in fear of injury was the means used 'to take the property from the victim. State v. Hayes, 518 S.W.2d 40, 45 (Mo.1975). The above evidence established that defendant put Lillian Cermak in fear of injury in order to seize a quantity of drugs and money from Cermak’s Pharmacy. Viewing the evidence in the light most favorable to the State we conclude Lillian Cermak had possession of the property taken by defendant.

We have considered and disposed of all of defendant’s contentions and conclude the judgment should be affirmed.

SNYDER, P. J., and SMITH, J., concur.

      . 490.130. Certified records of courts to be evidence
      The records and judicial proceedings of any court of the United States, or of any state, attested by the clerk thereof, with the seal of the court annexed, if there be a seal, and certified by the judge, chief justice or presiding magistrate of the court to be attested in due form, shall have such faith and credit given to them in this state as they would have at the place whence the said records come. Copies from the record of proceedings of any court of record of this state, attested by the clerk thereof, with the seal of the court annexed, if there be a seal, or if there be no seal, with the private seal of the clerk, shall be received as evidence of the acts or proceedings of such court of record in any court of this state.

      . Carp v. Queen Insurance Co., supra, concerned itself with § 1864 RSMo.1939 a predecessor to § 490.130 RSMo.1969. The logic of Carp as applied to § 490.130 RSMo.1969 was upheld in State v. Washington, 335 S.W.2d 23, 25 (Mo.1960).


author: STANLEY A. GRIMM, Special Judge.

text:
    Velma Rose KIRK, Plaintiff-Respondent, v. BROWN SHOE COMPANY, Defendant-Appellant.
    No. 10434.
    Missouri Court of Appeals, Southern District.
    Aug. 14, 1979.
    Motion for Rehearing or for Transfer to Supreme Court Denied Sept. 24, 1979.
    Application to Transfer Denied Nov. 14, 1979.
    Robert W. Herr, Luke, Cunliff, Herr, Chavaux, Hilgendorf, McCluggage & De-Yong, St. Louis, Raymond E. Whiteaker, Woolsey, Fisher, Clark, Whiteaker & Sten-ger, Springfield, for defendant-appellant.
    Edward V. Sweeney, Sweeney & Sweeney, Monett, for plaintiff-respondent.
    Before HOGAN, P. J., STONE, Acting Senior Judge, and GRIMM, McHANEY and STEELMAN, Special Judges.
   STANLEY A. GRIMM, Special Judge.

Employer and insurer appeal from a judgment of the circuit court affirming a final award of the Labor and Industrial Relations Commission. As stated in appellant’s brief, “the only issue on this appeal is the propriety of the assessment by the Commission of a penalty against the employer for allegedly failing to comply with the provisions of a temporary award.”

On January 25, 1971, Velma Rose Kirk sustained an accidental injury at the Brown Shoe Company plant in Houston. Since appellant does not seek review of the accidental nature of the injury or the finding of total permanent disability, it is sufficient to say that claimant sustained an injury to her back.

The initial hearing was held on September 20, 1973, by Referee Leonard E. Newton. On October 19, 1973, he issued a temporary or partial award, including the following finding:

“I further find that employee secured necessary medical treatment as follows, to-wit:
Dr. Dwyer $ 28.00
Aurora Community Hospital 1484.85
Blankenship Drug 46.86
Central Brace Co. 30.30
Dr. Hamilton 244.00
Bruner Pharmacy 685.02
Drs. Penninger and Francis 40.00
Dr. Beard 25.00
Said amounts being fair and reasonable for which employer is liable and ordered to pay.”

On October 29, 1973, appellant filed an application for review. The specific finding appealed from was said to be “[t]hat employee is and has been totally disabled since the date of her accident.” However, the grounds set forth in the application pertained to the denial of appellant’s request for a continuance. On February 13, 1974, the Commission affirmed the temporary or partial award.

A check for the sum of $8,959.44 was issued by the Employer on April 19, 1974. However, it was not sent to the Employee until May 22, 1974. The next payment was for $1,626.46 by a check dated November 26, 1974, which was mailed December 10, 1974. These two checks apparently are for benefits (healing period and temporary total) from January 25, 1971, to and including December 20, 1974.

Referee James H. Wesley, II, presided over the final hearing on December 20, 1974. In his findings, which were entered on March 19, 1975, Referee Wesley found the amount of compensation (healing period and temporary total) due Employee, as of January 15, 1974, was $8,212.82. In addition, the Employer was to have paid the medical expenses set forth above totaling $2,584.03. Thus, at the time the temporary or partial award was affirmed by the Commission, Employer had a financial obligation of $10,796.85. The Referee found that the Employer “has not paid any of the $2584.03 for reasonable and necessary medical expenses incurred by Employee.” Finding that the order and award had not been complied with, the Referee, pursuant to the authority of § 287.510, RSMo 1969, assessed an additional sum of $5,000.00 as a penalty for the violation and non-compliance of the award and order.

In its application for review, Employer alleged that the Referee’s award was erroneous because “[i]t is contrary to the law and the facts relative to the assessment of a penalty in a lump sum of $5,000.00 or in any other amount.” The Commission modified the award of the penalty by increasing it and ordered the payment of the sum of $8,212.82 (being the sum due on January 15, 1974) instead of $5,000.00. The award of the Commission was affirmed by the Honorable Weldon W. Moore of the Circuit Court of Texas County.

The Employer contends that there was not sufficient competent evidence to warrant the assessment of the penalty. The thrust of its argument is that although Referee Newton found that the Employer had secured necessary medical treatment involving eight separate items of medical expense, his award of October 19, 1973, gave no direction “as to whether such payments were to be made to the claimant or to the persons listed.” Or, as stated elsewhere in its brief, “neither the award of Referee Newton nor of the Commission had specified to whom such payment was to be made.” Thus, the Employer says since the names listed were not parties, it could not make payment directly to those names absent a direct order from the Commission. And since the claimant had not paid the bills herself, payment could not be made to her. Thus, the Employer did not know to whom to make payment; since it had been g^ven no direction or order by the Referee, it should not be penalized.

At the initial hearing held on September 20, 1973, the attorneys representing the Employer and the Employee stipulated “that the claimant has incurred the following bills as a result of her injury” and “that the bills have been incurred and agrees to the reasonableness of the bills subject to proof of the necessity of their being incurred.” Thereafter, the eight bills were read into the record. Referee Newton’s finding on October 19, 1973, that the Employee had secured necessary medical treatment from those eight sources, no doubt, was based largely on the stipulated bills and amounts.

Although the Employer made application for review of the October 19, 1973, award, no reference was made to the medical bills, their amounts, nor in fact to anything relating to these expenses. No request was made to clarify to whom the expenses should be paid. The Commission adopted and affirmed the award.

Section 287.140, RSMo 1969, requires the Employer to provide the Employee with medical, surgical and hospital treatment, including nursing, ambulance and medicines, as may reasonably be required. No question is raised as to reasonableness; the lack of direction as to whom to pay is the question raised by the Employer.

The Employer does not refer us to any statute or decision that requires either the Referee or the Commission to specify to whom the payment of medical expenses should be paid. We have been unable to find such a requirement and we are unwilling to graft such a requirement onto § 287.140.

If the Employer, in October 1973, or in February 1974, was concerned about to whom it should pay the medical expenses, it could have asked the Referee or Commission for clarification. Or, it could have issued its checks jointly to the Employee and the supplier of the service. Instead, it did nothing. As the Commission aptly stated, “We find the employer’s excuse for not having paid the medical to be lame, frivolous and vexatious.”

Having found that the Employer failed to comply with the temporary award by not paying the medical expenses, we now reach the question as to the propriety of the assessment of a penalty of $8,212.82. Section 287.510, RSMo 1969, states:

“In any case a temporary or partial award of compensation may be made, and the same may be modified from time to time to meet the needs of the case, and the same may be kept open until a final award can be made, and if the same be not complied with, the amount thereof may be doubled in the final award, if the final award shall be in accordance with the temporary or partial award.”

The temporary or partial award was made on October 19, 1973. In the award, the Employer was ordered to make payments for the eight medical expenses previously referred to, which total $2,584.03, and compensation at the rate of $53.33 per week from January 25, 1971, to January 15, 1974 (154 weeks), or $8,212.82. Thus, the total amount of the temporary or partial award includes the medical expense of $2,584.03 and compensation of $8,212.82 for a total of $10,796.85.

The unexplained delay in paying the weekly compensation and the failure to pay the medical expenses justify the imposition of the penalty. As the Commission stated, it could not, “by the greatest reach of our imagination, reconcile the employer’s actions in this case with the intent and spirit of the law.” The final award was in accordance with the temporary award as required by statute. Under these circumstances, a doubling of the award as a penalty for failure to comply with its terms is not an abuse of discretion.

Pursuant to the discretion granted the Referee, and ultimately the Commission, by § 287.510, RSMo 1969, the amount of the temporary or partial award may be doubled for non-compliance with the temporary or partial award. Thus, it was permissible for the Referee and the Commission to penalize the Employer in the amount of the temporary or partial award of $10,796.85.

The Referee assessed a penalty of $5,000.00. It is not clear how he arrived at that amount, saying only that “the award should partially be subject to this penalty.” On review, the Commission set the penalty at $8,212.82, saying this was “double the amount of benefits due the claimant from the date of the accident till January 15, 1974.” Such amount, however is only that part of the temporary award attributable to the weekly compensation. The Commission failed to include as part of the temporary award the portion thereof consisting of medical expenses.

When § 287.510, RSMo 1969, says “the amount thereof may be doubled in the final award,” we construe the words “amount thereof” to mean the temporary or partial award of compensation, including both weekly compensation and medical expenses. For a similar holding, see Hendricks v. Motor Freight Corp., 570 S.W.2d 702, 710 (Mo.App.1978).

In view of our holding, the penalty which the Commission should have awarded is the amount of the temporary or partial award of $10,796.85. We are authorized to modify the final award. Section 287.490, RSMo 1969; Clapp v. Brown Shoe Co., 291 S.W.2d 209, 214 (Mo.App.1956).

Plaintiff is awarded a penalty of $10,-796.85. Of that sum, $8,212.82 shall bear interest at the rate of six percent per an-num until paid (if past due) from the date of the Commissioner’s Final Award, as set forth in the Commissioner’s Final Award allowing compensation. The judgment is so modified, and, as modified, is affirmed.

All concur.


author: DOWD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Edward BATTLE, Appellant.
    No. 39473.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 21, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      William J. Shaw, Public Defender, Patrick M. Sanders, Asst. Public Defender, S. Gerald Miller, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Bruce E. Anderson, Asst. Attys. Gen., Jefferson City, George R. Westfall, Pros. Atty., Clayton, for respondent.
   DOWD, Presiding Judge.

Edward Battle was convicted by a jury in St. Louis County of second degree murder and first degree robbery and sentenced to life imprisonment on each count. The sentences are to be served consecutively. Battle appeals.

On the snowy morning of January 7, 1976, Officer Fred Marquard of the University City Police Department observed the appellant walking behind a group of apartment buildings carrying a television set. When Marquard signaled that he wished to speak to the appellant, the latter “set down” the television and purported to assist a man who was working on his car’s engine. When questioned by the Officer as to his presence in the neighborhood and his carrying the television, the appellant replied with inconsistent answers. First, appellant contended that he owned the set and was taking it to be fixed. Shortly, thereafter, appellant asserted that he was given the set by his employer, a Doctor Zuckerman. When another officer arrived, Marquard traced appellant’s footprints in the freshly fallen show to a different building than the one appellant claimed to have exited. The officer failed to find any evidence of forcible entry into the apartments. Marquard then arrested appellant on suspicion of stealing from a dwelling.

Appellant was given his Miranda warnings and a pat down search. The pat down search revealed ten silver dollars and various items of jewelry in the appellant’s possession. The police observed blood stains on appellant’s clothing. Once at the police station appellant was also found to be in possession of a bank interest cheek payable to a Ruth Goldberg. Appellant explained that Mrs. Goldberg had given him the check. When the police could not reach Mrs. Goldberg to verify appellant’s story, they contacted her children in hopes of gaining access to her apartment. Mrs. Goldberg was 73 years old and lived alone. Having been admitted to the apartment, the police found Mrs. Goldberg dead. She had been strangled with a wire coat hanger and stabbed through the throat with a knife. Appellant was indicted for the capital murder and first degree robbery of Rose Goldberg.

In this appeal, Battle contends the trial court erred in five respects.

In his first assignment of error, appellant contends that statements and evidence procured from him following his arrest should have been suppressed because his arrest was unlawful and not predicated on probable cause. Secondly, appellant contends that the trial court should have suppressed statements which he made to police after indicating that he wished the questioning be discontinued. Appellant’s third contention is that the court erred in refusing to grant him a competency hearing after his counsel had contested the psychiatric reports’ findings. The fourth issue raised by the appellant is that the trial court should have granted appellant’s motion for a mistrial after the State had made allegedly prejudicial comments in its closing argument. Finally, the appellant contends that the court lacked jurisdiction since the appellant had pleaded not guilty by reasons of mental disease or defect and had never withdrawn or abandoned that plea.

The appellant first questions the legality of his warrantless arrest, claiming that no probable cause existed for the police to believe that a crime had been committed or that the appellant had committed it.

Officer Marquard was not required to have had probable cause for arrest when he asked Battle to step over to the police car during the initial detention. It is established that police can make an investigatory stop of a person on less grounds than would be required for probable cause for arrest. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Here, Officer Mar-quard observed the appellant walking behind an apartment building in the middle of a snowstorm carrying a television set. When the officer motioned for Battle to approach the police car, Battle set the television by the curb and began to act as if he were assisting a man who was working under the hood of a car. While this behavior would not satisfy probable cause requirements for arrest, it is sufficiently suspicious to warrant a brief investigatory stop under the Terry rationale. The grounds necessary for probable cause for arrest, however, need not have been established until Marquard actually arrested Battle.

In order to legally arrest Battle, Marquard must have had reasonable grounds to believe that a felony had been committed and that Battle had committed it. State v. Caffey, 436 S.W.2d 1 (Mo.1969). Although Marquard needed more than a mere suspicion that Battle had stolen from a dwelling, State v. Hicks, 515 S.W.2d 518 (Mo.1974) the practicalities of everyday life must be considered. State v. Dodson, 491 S.W.2d 334 (Mo. banc 1973). The existence of probable cause should be determined case by case using a reasonable and prudent man standard. State v. Dodson, supra.

Here the information Marquard obtain during the investigatory stop provided him with the necessary grounds to reasonably believe that Battle had.stolen from a dwelling. After Battle complied with Marquard’s request to step over to the police car, Marquard inquired as to Battle’s presence in the area and his possession of the television. Battle answered that he lived at 5271 Washington Avenue in St. Louis. This is approximately sixteen blocks from where he was stopped. He said that he brought the television from his home and was taking it to Wellston to be repaired. Mar-quard pointed out that they were a considerable distance out of the way from Washington Avenue to Wellston. Battle then changed his story and said that he had been doing some work at 740 and 746 East-gate for a Dr. Zuckerman. He said that Dr. Zuckerman had given the television to him to have it repaired.

At that time another patrolman arrived on the scene and Officer Marquard asked him to run a pedigree check on the appellant. Marquard then traced Battle’s footprints through the freshly fallen six-inch snow. Since Battle’s were the only footprints visible, Marquard was able to follow them to the rear of an apartment building at 804 Eastgate. This address was approximately one block closer than the building Battle claimed to have exited. The officers then arrested Battle for stealing from a dwelling.

It was reasonable for Officer Marquard to become suspicious at the sight of a man carrying a television through the falling snow at the rear of an apartment building. As in Terry v. Ohio, supra, 392 U.S. at 23, 88 S.Ct. at 1881, “it would have been poor police work” for Marquard not to have briefly stopped appellant. The additional facts discovered during the investigatory stop provided the necessary probable cause for a warrantless arrest for stealing from a dwelling. Since probable cause existed, the arrest was legal and there could be no taint on the information obtained as a result. Point one is ruled against the appellant.

The appellant next argues that the court erred in overruling his motion to suppress statements he made after he had signed a written Miranda form indicating that he wished the questioning be discontinued.

The admissibility of statements obtained after a suspect has expressed a desire “to remain silent depends under Miranda on whether his right to cut off questioning was scrupulously honored”. Michigan v. Mosely, 423 U.S. 96, 103, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). If the suspect makes a statement after questioning has been cut off, the burden is on the State to show by a preponderance of the evidence that he has made a knowing waiver of the Miranda safeguards in order for that statement to be admissible. State v. Olds, 569 S.W.2d 745 (Mo. banc 1978). A suspect can effectively waive his right to remain silent as to any statement which he volunteers. State v. Olds, supra. In the Olds case, a robbery suspect was being driven to jail while two police officers in the car carried on a conversation about a 200 pound Great Dane at the home of the robbery victim. When one Officer commented that it was the friendliest dog he had ever seen, the suspect agreed with him. The court found that the suspect had waived his right to remain silent since the statement was voluntarily made after his being informed of his rights and was not in response to any interrogation.

In the present case, after Battle indicated his desire to cut off questioning, the police took him to a cell without further communication. About one and one-half hours later, Battle, a black man, saw a black detective walk by and asked to see him. The detective asked Battle what he wanted and Battle answered that he wanted to tell him what had happened. The detective warned Battle that he was a police officer and would testify to anything Battle told him. He also reminded Battle of the Miranda form he had signed. Despite these warnings, Battle made the incriminating statements which were the subject of the motion to suppress. As appellant volunteered the statements after having been given his Miranda warnings, and having been reminded of his previous wish to remain silent, he waived his right to remain silent as to the statements made. The motion to suppress was properly overruled. Point two is ruled against the appellant.

The appellant’s third point is that the trial court erred in refusing to grant a hearing to determine the appellant’s competency to stand trial. It appears from the record, however, that a hearing was held. At one point in the record, the court, referring to evidence regarding appellant’s competency, stated, “We went over this in the hearing on Friday with the doctor and the two licensed practical nurses, didn’t we?” Later the court again referred to the competency hearing, stating:

“For the record I will make a finding of law based on the testimony we had last Friday from the medical doctor and the county jail social worker, two licensed practical nurses, and psychiatric reports from Fulton and from Missouri State Hospital on Arsenal Street, and other evidence before the Court, that the Court finds the matter of law is that the defendant is competent to stand trial, to assist in his own defense, if he chooses to, that is competent to stand trial.”

Thus it is clear that a competency hearing was held and that the court, based on evidence adduced at the hearing, found the appellant competent to stand trial.

The record does not include a transcript of what transpired at the hearing. The transcript should include everything needed to decide the issues which the appellant presents. Ward v. State, 451 S.W.2d 79 (Mo.1970). Since the appellant has the burden of providing a complete transcript, Jackson v. State, 514 S.W.2d 532 (Mo.1974), this court cannot determine that the hearing, which was apparently held, fell short of the requirements of Section 552.020(6), VAMS without a record of the hearing being included in the transcript.

The fourth issue the appellant raises is that the trial court erred in denying appellant’s motion for a mistrial after the prosecutor made certain allegedly prejudicial comments during closing arguments. The flaw in this argument is that none of the comments allegedly made by the prosecutor appear in the transcript. It has long been held that the trial transcript is binding on the reviewing court. Peterson v. Kansas City Public Service Co., 259 S.W.2d 789 (Mo.1953). As a result, the comments complained of by appellant not having been substantiated by the record cannot be considered on appeal.

It is true that arguments which antagonize the jurors toward the defendant by suggesting that acquittal may risk their or their families’ safety, affect substantial constitutional rights and as such are erroneous. State v. Ellinger, 549 S.W.2d 136 (Mo.App.1977). However, a search of the record reveals no such inflammatory remarks.

Essentially the argument of the prosecutor was in reference to the necessity of law enforcement as a deterrent to crime and also that juries have a responsibility to suppress crime. Such an argument is proper. State v. Brauch, 529 S.W.2d 926, 931 (Mo.App.1975); State v. Schumacher, 556 S.W.2d 199, 200 (Mo.App.1977). Accordingly, appellant’s point is without merit.

The appellant finally contends that the trial court was without jurisdiction to hear this case because defendant never entered a not guilty plea and so was never properly arraigned. Appellant argues that since he pleaded not guilty by reason of mental disease or defect and never withdrew or abandoned that plea, the court was not authorized to adjudicate the guilt of defendant.

This contention lacks merit. The case on which appellant relies, State v. Grantham, 519 S.W.2d 19 (Mo. banc 1975) involved a different factual situation than exists here. In Grantham, the court held that the State cannot accept a plea of not guilty by reason of mental disease or defect when the defendant has also pleaded not guilty, and has not first withdrawn or abandoned the not guilty plea. This is in accordance with § 552.030 VAMS, which allows the State to accept a defense of mental disease or defect only if such a plea is the defendant’s only defense and he files a written notice that he has no other defense.

Here the defendant was arraigned and entered a plea of not guilty by reason of mental disease or defect. However, this plea was never accepted by the State. Defendant Battle was then tried without explicitly entering a not guilty plea. Accordingly, § 546.020 VAMS is controlling. It holds that if a defendant fails to plead not guilty, his conviction will not be reversed if the trial was held as if he had in fact pleaded not guilty. Here the trial court did proceed as if appellant had pleaded not guilty. Thus, the judgment will not be disturbed.

Judgment affirmed.

CRIST and SATZ, JJ., concur.

      . Battle told the officer that he was present in the apartment with a Robert Jones who beat the victim and stabbed her with a knife and that Battle then took the television set, money and jewelry from the apartment but that “he hadn’t killed the woman.”