author: PER CURIAM: BARDGETT, Judge, FINCH, Judge,

text:
    STATE of Missouri, Respondent, v. Lee Burl DAVIS, Appellant.
    No. 59779.
    Supreme Court of Missouri, En Banc.
    April 28, 1978.

      Blair K. Drazic, Asst. Public Defender, St. Louis, for appellant.
    W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.
   PER CURIAM:

After the Court of Appeals, St. Louis District, handed down an opinion written by Simeone, J., we ordered transfer of the cause to this court because of the one novel issue involved, i. e., whether or not a trial court may call a witness as the court’s witness in a criminal case. After considering that issue as well as others presented, we agree with the result reached by the Court of Appeals and adopt the opinion thereof without benefit of quotation marks.

I

Introduction

Defendant-appellant, Lee Burl Davis, was charged, tried and found guilty by a jury and sentenced to life imprisonment for the offense of murder in the first degree. § 559.010, RSMo 1969. He appeals. For reasons hereinafter stated, we reverse the judgment of conviction and remand the cause for further proceedings.

The principal issues raised on this appeal are (1) whether prior inconsistent statements made by a witness called by the court as the court’s witness were used as substantive evidence by the prosecutor in closing argument, and if so, whether the use of such evidence as substantive evidence constitutes “plain error”; (2) whether the trial court may call a witness as the court’s witness in a criminal case — an issue heretofore unresolved in this state; and, having done so, (3) whether the trial court erred in permitting the prosecutor to “impeach” the court’s witness by the use of prior contradictory statements made by the witness and statements made by the prosecutor at an earlier guilty plea proceeding, which statements implicated the defendant-appellant in this proceeding.

This case presents a bizarre set of facts and presents complex legal issues:

II

The Facts

The abbreviated facts for the disposition of the principal points on appeal can be briefly stated — more detailed facts will follow. Mr. Joseph “Hector” Lane was found dead in an automobile, having been shot. The appellant, Lee Burl Davis, was charged with the offense. Mr. Jahmel Imrod Moore pleaded guilty to the offense sometime pri- or to the trial of the appellant, Davis. During this trial, Moore was called as the court’s witness, and, after denying that he or the appellant was implicated in the crime, the state impeached Moore by reading the statements of the prosecutor and Moore at Moore’s guilty plea and introduced the testimony of Rhonda O’Neal, a state’s witness, all of which contradicted Moore’s “direct” testimony at trial.

It is this introduction of the contradictory testimony and the comments thereon by the prosecutor in closing argument which essentially form the basis of this appeal.

Much of the evidence detrimental to the defendant was related by the state’s witness, Leonard O’Neal. The tragic events begin on the rainy night of June 18, 1978. On that evening, Leonard O’Neal and Harold Davis were at the home of their young friend, Mark Bowers. Later in the evening, the three left the Bowers home and walked to the home of Harold Davis, where Harold’s brother, Lee Burl Davis, also lived. The Davises lived in the 4200 block of Holly Avenue in the City of St. Louis. At the time of their arrival, Lee Burl Davis was not there. The three young men — Mark, Harold and Leonard — watched TV. Sometime after eleven p.m., Harold’s seven-year-old sister came in and told them that an automobile accident had occurred outside the house. No shots were heard, but the impact of the accident was heard by other neighbors, including Nathaniel Phillips and Anthony Lee Bailey. The three young men, Mr. Phillips and Anthony Bailey, together with others, went out to the street. When they arrived, they saw that an Oldsmobile “98” had hit an automobile which in turn hit another and then hit a tree. The “98” motor was running, and a man — Joseph Lane (also known as Hector) — “was bent over the wheel with his foot on the gas.” Mr. Phillips and Anthony Bailey took Mr. Lane out of the car and placed him on the street. Mr. Phillips took Mr. Lane’s pulse, but there was none.

Within minutes, Officer Walter Meissert was summoned to the area because of a “fire.” When he arrived, the firemen were already present. He saw that “the car that struck the first ear was smoking from the radiator,” but there was actually no fire. “Hector” Lane had already been taken out of the car and placed on the ground. Officer Meissert found no weapons either in or outside the automobile.

According to Leonard O’Neal, the three young men stayed around the accident scene for a short while and then went back into the Davis home. When they went back into the house, a telephone call was made by a friend of Leonard’s — Jahmel Imrod Moore — a witness called by the court at this trial of the appellant. While the call was not for Leonard, he did participate in the conversation. From the Davis house, Leonard, Mark and Harold went to Leonard O’Neal’s house, which was “[o]ne block over.” There Leonard saw Jahmel Imrod Moore. Leonard’s sister, Rhonda O’Neal, was also present. Leonard testified at trial that at the O’Neal home he saw blood on “[a]ll portions” of Moore’s shirt. At this time, the appellant, Lee Burl Davis, was not present at the O’Neal home. From the O’Neal home, Leonard, Mark, Harold and Jahmel Moore, after visiting the house of “Tony” Bailey, went to the mother’s home of a friend — Debra Kent. When they arrived, the appellant-Davis, Debra and Debra’s mother were present.

At Debra’s house, Leonard said, “. We told [Davis] that Hector was killed.” But Davis had no reaction. After staying at the Kent house about five minutes, the group then decided to return to the Davis house. They were walking. In the group were Mark Bowers, Leonard O’Neal, Harold Davis, Jahmel Moore and the defendant, Lee Burl Davis. Mark and Harold were walking in one group, and Leonard, Jahmel and Lee Burl Davis were walking in another. During that walk, according to Leonard’s testimony, Davis told Leonard O’Neal that “. . . I [Davis] was in the car with [Joseph Lane] and [I] shot him.” According to Leonard, the defendant related to him the incidents of the shooting. Leonard said that Davis told him that Jahmel was in the front seat of Lane’s car, and Davis was in the rear seat. “[T]hey was driving down the street,” and “Burl Davis stated that they were riding in the car and that they decided to shoot him on Penrose,” but that . . a car distracted him. He had to turn off Holly. In doing so he [Burl Davis] shot him in the head. Jahmel grabbed the wheel and they had an accident — ran into a tree. They jumped out.”

According to Leonard, Jahmel Moore was present during this conversation. During the conversation, appellant said that “they” first saw Hector that afternoon at Debra Kent’s house, and while there, “. Hector was talking about some kind of plan he had. He [Hector] was going to get everybody who lied on him.” “[S]o I guess he got him first.”

Both on direct and on cross-examination, Leonard admitted that he had been arrested for two previous robberies or attempted robberies, received a five-year sentence on both charges to run concurrently, and was placed on probation. He then enlisted in the Navy. On one of these charges, Jahmel Moore was a co-defendant. Leonard pleaded guilty to these charges on September 10, and was sentenced in late October, 1973. But it was not until sometime in October, probably October 9, that Leonard informed the police of the events that transpired on June 18 involving the defendant. Leonard stated that at no time did anyone promise him anything or promise to grant him probation in return for his testimony at trial of the appellant, Davis.

On October 23, 1973, an indictment was filed charging appellant Davis with the first degree murder of Joseph “Hector” Lane. Several witnesses were endorsed. Davis was arraigned. On July 3, 1974, the state endorsed additional witnesses, one of which was Jahmel Imrod Moore.

On the second day of the trial and after Leonard had testified, the assistant circuit attorney stated to the court,

“Judge, I don’t know why we are bringing him [Jahmel Moore] in for sure— while [why?] we are bringing him in at this time. I was going to call him as the next witness.”

On that second day of trial, the circuit attorney informed the trial court that he had endorsed Moore as a witness but that Moore “earlier pled guilty to the same case that we have before the Court today,” that Moore had “indicated . . that he was in the car when the fatal shot was fired,” and was serving a fifteen-year sentence on a charge of murder second degree for his “participation” in the “Hector” Lane shooting. The circuit attorney then requested the court to call Mr. Moore as the court’s witness, since “this man has pled guilty to the crime and I was the Prosecutor in the case [and] it would be awkward, if not impossible, to put him on to vouch for his credibility, yet he was an eyewitness to the crime.” The defense attorney did not specifically object, but argued that the prosecutor had endorsed Moore and that the “proper position of the Court should be the case of first impression, that it should be that since [the prosecutor] has endorsed him, he has already said that this is a witness.” Eventually, the court sustained the motion of the prosecutor and called Mr. Moore as the court’s witness.

Jahmel Moore then testified that he had pleaded guilty to a charge of murder — the victim being Joseph Lane — and received a sentence of fifteen years. He admitted he pleaded guilty to “acting with another” in the murder. He testified that Lane had been a friend of his and that he [Moore] was a “business associate” of the defendant, Davis. In his testimony he denied seeing Davis on June 18, 1973 — “No, I didn’t see him that day.” Jahmel Moore testified that he saw “Hector” Lane earlier in the afternoon on the fateful day, and Hector asked him where he would be later. He indicated he would be “shooting basketball.” Later that evening, Lane showed up at the basketball court, and Moore got into the car with him. They drove around, and after attending a lounge, one “Billy Thompson,” a friend of Lane’s, got into the car with them. On direct examination, Moore testified that he had never seen Billy Thompson prior to that evening. When they were all in the car, according to Moore, Hector and Billy Thompson were “arguing over some dope.” Moore was seated in the front seat and Billy in the rear. “[T]hey was arguing about some dope, so I am saying, ‘Man, you let me off at the corner up here.’ . . .” Moore stated that on Holly Avenue, “Billy” shot “Hector” Lane. He heard “two pops.” “. . . When I heard it I panicked” and jumped out of the car and went to the O’Neal home. He also said he saw Billy run “. . . contrary to where I ran. . . .’’He had no idea this was going to happen. He admitted that when he went to the O’Neal home he had blood on his clothes and told Rhonda O’Neal that “Hector” got shot, but denied telling her that “Burl just shot Hector,” but rather told her that “Billy Thomas” [sic] shot him. He denied telling her that “Burl” was in the back seat of the car and after Burl shot Hector that Burl jumped out of the door. He also denied hearing any statements made by Burl to Leonard while walking together. He denied having anything to do “with the planning of the murder of Hector” and any participation in the shooting, although he pleaded guilty to this offense.

After the direct examination of Moore by the prosecutor, defense counsel “cross-examined” him. In his cross-examination, Moore admitted that he was charged with first degree murder but pleaded guilty to “second degree murder” and received a fifteen-year sentence. He again denied he saw Davis that day and reiterated that “Billy Thompson” was in the automobile.

After this interrogation, the assistant circuit attorney then inquired on “redirect examination.” In an attempt to impeach Moore, the circuit attorney, without objection by defense counsel, asked him about his statements made on his plea of guilty to second degree murder and read certain excerpts from his plea, including certain statements made by the prosecutor.

During this “redirect examination,” Moore recalled that on March 4, 1974, he entered a plea of guilty to second degree murder for the murder of Joseph Lane and that he was represented by two attorneys. He recalled that the judge informed him he was charged with the offense of murder. He remembered the court asking him whether he wanted to withdraw his plea of not guilty and the prosecutor making a statement that the charge was reduced to murder second. The prosecutor then read from portions of the guilty plea record. He recalled that the prosecutor stated that he [Moore] was riding in an automobile driven by Joseph Lane, and that there was some understanding prior to driving around in the car. He did not remember the prosecutor stating that Burl Davis was in the back seat. Further excerpts from the guilty plea were read which implicated Davis in the crime. He remembered that the prosecutor stated on the plea that “Moore then fled the scene along with Davis and at a later time Moore told Leonard O’Neal and Rhonda O’Neal that he actually participated in and planned this homicide the way I have outlined it. . . .’’He recalled that after the court stated, “ ‘. . . Do I understand Davis fired the shot?’ ”, the prosecutor stated that “ ‘Davis is the one that actually fired the fatal shot. Moore is charged with acting with another.’ ” And he recalled the court asking him, “ ‘Is that substantially true or correct?’ ”, but his response was, “ ‘About my behalf.’ ” The trial court said, “ ‘Pardon?’ ” and the reply was, “ ‘About me.’ ” On the plea, Moore had no doubts about pleading guilty. When asked at the plea, “ ‘Is that correct what the Circuit Attorney stated?’ ”, he answered, “ ‘Yes,’ ” but in his examination on this trial, he denied remembering this affirmative response.

The proceedings on the guilty plea conflicted therefore in certain respects with his testimony on “direct examination” at trial. On direct, Moore denied any part in the homicide, denied any participation in the Lane killing and yet pleaded guilty to the charge of murder as reflected in the guilty plea proceedings; on direct, he denied seeing Davis on June 18 “all day,” but according to the guilty plea recalled the statements that he and Davis planned to kill Lane and that Moore fled the scene with Davis. No objections were made to this “impeaching” evidence.

The testimony of Jahmel Moore concerning the incidents on the night of June 18 was also inconsistent with the testimony of Leonard O’Neal’s sister, Rhonda, a witness for the state and the former girlfriend of Jahmel Moore. During the course of the state’s case and in an attempt to contradict the testimony of Moore, Rhonda stated she knew Burl Davis, Hector Lane and Jahmel Moore and was Jahmel’s girlfriend for about nine months. She testified that on the night of June 18, she was at her home and Jahmel came there. When he arrived at the O’Neal home, he had a lot of blood on his T-shirt — the blood was “[w]et, liquid.” She testified that Moore told her that “him and Burl was in the car and — . Him and Burl was in the car and Hector was driving . . . .” “When he first came in he told me that they had shot Hector. I said, ‘Who?’ He [Moore] said, ‘Burl had shot Hector.’ . . ,” She also testified that Jahmel told her that “. . . they had been planning to, you know, kill him for a while.” She never heard of a person by the name of Billy Thompson. She corroborated the testimony of Leonard that Jahmel made a telephone call, and on cross-examination she admitted that she did not tell the police her story until after her brother Leonard “had gotten in trouble.”

The defendant introduced no evidence, except the testimony of an investigator of the Public Defender’s Office who stated that he attempted to locate “Tony Bailey and Debra Kent” but never contacted them.

At the close of the evidence, the defendant moved for a judgment of acquittal on the ground that the “plaintiff has failed to prove a cause of action as alleged in the Indictment.” The motion was overruled. Instructions were given and the cause argued. During the first part of the closing argument, the circuit attorney reviewed the evidence, especially the testimony of Leonard O’Neal and the testimony of Rhonda.

In his argument, defense counsel argued the credibility of Leonard and Rhonda O’Neal’s testimony — how Leonard didn’t tell the police until October, “. . until after he had been arrested on his two armed robberies.” Defense counsel then discussed the testimony of Moore, and argued that there was a reasonable doubt as to the guilt of Davis.

Then in the second portion of his argument, the prosecutor emphasized the fact that Leonard O’Neal had pleaded guilty in September, 1973, before he had told the police about the events of June 18, so as to bolster the believability of Leonard’s testimony, and he also argued the credibility of the direct testimony of Jahmel Moore. He argued that during the trial he had read from the transcript of Moore’s plea of guilty to the killing of Lane, which implicated Davis.

After the argument, and after deliberation, the jury found the appellant guilty of murder in the first degree and assessed his punishment at life imprisonment. In proper time, a motion for new trial was filed. No point was raised in the motion for new trial that the court erred in permitting the prosecutor to argue the probative value of the testimony of Moore because such evidence was impeachment evidence only and could not be used as substantive evidence.

The court overruled the motion. After allocution was granted, the defendant was sentenced to life imprisonment.

Ill

Appellant’s Contentions on Appeal

On this appeal, the appellant-Davis makes several points. He contends that (1) the trial court erred in calling Jahmel Moore as a court’s witness because in doing so this permitted the prosecutor to introduce “inadmissible, incompetent evidence to the jury under the guise of impeachment, to the prejudice of the defendant”; (2) the trial court improperly permitted the prosecutor to impeach Jahmel Moore by examining him with regard to the guilty plea proceedings because (a) Moore was not an “adverse” witness within the meaning of the rules permitting such impeachment, and (b) because the jury was allowed to consider incompetent statements made by the “prosecutor” at the time of the guilty plea ; (3) the trial court improperly permitted the prosecutor to impeach Jahmel Moore “by the use of prior inconsistent statements he allegedly made to Rhonda O’Neal” because the prosecutor was not “surprised” by his testimony denying defendant’s participation in the offense and “because the impeaching testimony was incompetent hearsay”; and (4) “plain error” was committed when the prosecutor in closing argument argued (a) that “the jury should accept Rhonda O’Neal’s impeaching testimony as substantive evidence” and (b) that “the jury should accept as fact the prosecutor’s statements made at the time of Moore’s guilty plea proceedings.”

IV

The “Argument” as Substantive or Impeachment Evidence

We shall examine these contentions in inverse order. The first and primary contention to be resolved, in our opinion, is whether the closing argument of the prosecutor in referring to the testimony of Rhonda O’Neal and the statements on Moore’s guilty plea which were inconsistent with his statements in his “direct examination” were used as substantive evidence and constituted “plain error.” We conclude that the comments concerning the facts on the guilty plea and the comments on the statements made by Rhonda were not used merely as impeaching evidence but were used as substantive evidence to show the truth of the matters asserted and constituted plain error.

The whole issue of whether impeaching or discrediting testimony of a witness who is not a party is competent as substantive evidence to show the truth of the matters asserted therein has been fully discussed recently in State v. Granberry, 491 S.W.2d 528 (Mo. banc 1973).

In that case, a witness for the state and a co-indictee of the defendant denied on direct examination that the defendant was with him. The state claimed surprise and was given leave to ask the witness about prior statements which implicated the defendant as a participant in the crime. In closing argument to the jury, the prosecutor stated:

“I suggest to you that there is something to be gained from Hackett’s [the witness] testimony. . . . Hackett said five times . . . that James Granberry went inside, and he said that he was along, and he was in that car that night, and he committed the robbery.

Our Supreme Court reversed the conviction and concluded

“ . . .on the record in this case that the prior statements attributed to witness Hackett were not used by the State to impeach Hackett’s credibility but, on the contrary, were used as substantive evidence to show the truth of the matters asserted in such statements given by Hackett on prior occasions. . . . ” State v. Granberry, supra, 491 S.W.2d at 530.

The court concluded that the “judgment of conviction cannot be permitted to stand.” Finch, J., in his opinion concurring in the result, stated:

“The principal opinion herein . holds that these prior inconsistent statements by [the witness] were admissible to impeach or discredit him as a witness, but were not admissible and competent as substantive evidence of the facts to which such statements related. The opinion concludes, based on analysis of the prosecuting attorney’s argument to the jury, that the statements were used as substantive evidence to show the truth of the statements that [the defendant] was present and participated, and that for this reason the conviction cannot be allowed to stand.” State v. Granberry, supra, 491 S.W.2d at 534. (Emphasis added.)

The Supreme Court in Granberry adhered to the “orthodox” rule that

“ ‘[t]he general rule is almost universally recognized that evidence of extrajudicial statements made by a witness who is not a party and whose declarations are not binding as admissions is admissible only to impeach or discredit the witness, and is not competent as substantive evidence of the facts to which such statements relate.’ ” Granberry, supra, at 530, quoting from 133 A.L.R. 1454 at 1455 (1941).

While a prosecutor is entitled to argue evidence for impeachment purposes, State v. Manley, 513 S.W.2d 703, 705 (Mo.App.1974), we believe that the issue presented here is controlled by State v. Granberry, supra. Except for the fact that Moore was called as a court’s witness, the facts here are very similar to Granberry, and, hence, we believe Granberry is controlling. The argument in Granberry used impeaching statements as substantive evidence. That is also the situation here.

It is difficult if not impossible to expect the jury to give the statements commented upon by the prosecutor in his argument the limited value for impeachment purposes. The more logical conjecture is that the jury would give weight to the statements commented upon in argument and consider them as substantive evidence on the issue of guilt of the defendant. A jury cannot be expected to sift the fine distinctions between what constitutes substantive evidence and what is impeachment. As long as the orthodox rule is adhered to by our Supreme Court, we are bound thereby, and on that basis, we must reverse.

Appellant candidly admits that there was no objection to the prosecutor’s arguments and that there was no claim of error in this regard in the motion for new trial. Appellant requests us to consider the argument as plain error.

Rule 27.20(c) authorizes us to consider “plain error” affecting substantive rights when the court “deems that manifest injustice or miscarriage of justice has resulted therefrom.” Our Supreme Court has held that the plain error rule does not cover all trial errors and has declined to delineate the precise bounds for applying it. State v. Mabery, 437 S.W.2d 91, 93 (Mo.1969); State v. Embry, 530 S.W.2d 401, 404 (Mo.App.1973). The plain error rule should be exercised “sparingly,” State v. Socket, 490 S.W.2d 336, 339 (Mo.App.1973), and cannot be used as a vehicle for review of every alleged trial error which is not asserted or properly preserved for review. State v. Murphy, 521 S.W.2d 22, 25 (Mo.App.1975). The rule is limited, and in order to justify its application, it must appear that there is a sound, substantial manifestation and a clear showing that injustice or a miscarriage of justice results if the rule is not invoked. State v. Halk, 524 S.W.2d 44, 48 (Mo.App.1975); State v. Murphy, supra, 521 S.W.2d at 25; State v. Meiers, 412 S.W.2d 478, 480-481 (Mo.1967). And, ordinarily, alleged errors on closing argument or in cross-examination of defense witnesses do not justify relief as plain error unless they are determined to have had a decisive effect on the jury. State v. Collins, 520 S.W.2d 155, 157 (Mo.App.1975).

In Granberry, supra, it is not clear whether timely and proper objections were made to the argument of the prosecutor. The implication is that there were none. The court, however, did reverse and remand without discussing whether the issue was preserved or whether the plain error rule was applicable.

In view of this state’s adherence to the orthodox view, above, we are compelled to conclude that the argument, in our opinion, used impeaching evidence as substantive evidence of facts to which the statements relate and had a decisive effect on the jury; hence, it constituted plain error.

The state argues in its brief that the argument of the prosecutor was retaliatory. While portions of the argument may have been retaliatory, the overall comments and the thrust thereof were not. Based on the whole of the argument, we hold that it was not basically retaliatory.

Based on our conclusion that the comments of the prosecutor on the impeaching statements of Moore and Rhonda O’Neal were used as substantive evidence to show the truth of the matters asserted in such statements and not merely as impeaching evidence, so as to constitute plain error, we are compelled to reverse the judgment of conviction and remand the cause for a new trial.

Since the cause must be reversed and remanded, we shall briefly examine the other errors raised by the appellant, since they may reoccur.

V

Authority of Court to Call Witness

Appellant contends that the trial court erred and abused its discretion in calling Jahmel Moore as its witness, since this action permitted the prosecutor to introduce “inadmissible” evidence under the guise of impeachment. We do not agree.

Normally, it is the function of the parties to call witnesses as a part of our adversary process. The practice in criminal cases of calling a person as a court’s witness is seldom used and “not particularly desirable.” Smith v. United States, 331 F.2d 265, 273 (8th Cir.1964). While our research fails to disclose any previous Missouri decision in which the court called a witness in a criminal proceeding, the general rule is that a trial judge, in a criminal case, may in the exercise of sound judicial discretion call a witness as the court’s witness. Smith v. United States, supra, 331 F.2d at 273; An-not., 67 A.L.R.2d 538, 540 (1959); 58 Am. Jur., Witnesses, § 4 (1948).

All of the authorities which have dealt with the issue recognize that calling a witness as the court’s witness rests in the sound discretion of the court. People v. Ricks, 86 Ill.App.2d 70, 230 N.E.2d 50, 52 (1967); People v. Shelton, 388 Ill. 56, 57 N.E.2d 473, 477 (1944); Carle v. People, 200 Ill. 494, 66 N.E. 32, 36 (1902); Smith v. United States, supra; Litsinger v. United States, 44 F.2d 45, 47 (7th Cir.1930); 9 Wigmore, Evidence, § 2484 (3d ed. 1940). In fact, under certain circumstances, it is necessary and imperative for the court to do so. But, “ . . .in exercising this power, a wise discretion should be utilized, not only as to whether witnesses should be called by the court itself, but also as to the extent and manner of the examination permitted. . . . ” Commonwealth v. Di-Pasquale, 424 Pa. 500, 230 A.2d 449, 451 (1967).

Based upon well-recognized authorities, we believe that (1) the trial court has discretion in a criminal case to call a witness as its own, (2) the practice should be sparingly used, since it is not a desirable one, (3) the practice should be restricted to cases where otherwise there may be a miscarriage of justice and (4) before a witness is called by the court a proper foundation be laid which would consist of the reasons why the party desiring the witness to testify cannot vouch for his veracity and a showing that the testimony relates to the issues in the cause.

We cannot conclude here that the trial court erred or abused its discretion in calling Jahmel Moore as the court’s witness. The situation here is akin to Smith v. United States, supra, where no abuse of discretion was found. In Smith, the court’s witness was a coindictee, he had pleaded guilty, the witness possessed information pertinent to the issues against the defendant, and it was “natural” that the government should have been “hesitant” about sponsoring the witness. It was not unreasonable, therefore, for the government to request the trial court to designate the witness as the court’s witness.

Under the circumstances, here, therefore, we hold that the trial court did not abuse its discretion in calling Jahmel as the court’s witness. The prosecutor informed the court that Moore had pleaded guilty to the crime, that he was the prosecutor in the case and that it would be “ . . . awkward, if not impossible, to put him on to vouch for his credibility, yet he was an eyewitness to the crime.”

VI

Impeachment of “Adverse” Witness

Appellant contends in his Points 1(a) and (b) that the court erred in permitting the prosecutor to impeach Moore by examining him with regard to the guilty plea because he was not an “adverse” witness within the meaning of the authorities permitting such impeachment and because the jury was permitted to hear and consider the statements of the prosecutor at the guilty plea. He further contends that the statements Moore made to Rhonda O’Neal should not have been allowed to be introduced because the prosecutor was not “surprised” by Moore’s testimony and that the admission of Rhonda’s testimony was error, since it was hearsay. He argues that the trial court “should have awaited the development of testimony, if any, which would have provided a sufficient basis for treating [Moore] as an adverse or hostile witness. . . . ” Although all these points were not properly preserved for review and therefore not before us for consideration, we make a few comments concerning them.

The principles relied upon by the appellant are applicable when a witness is called by a party, but we believe they are not dispositive when a witness is called by the court. It is not necessary, as appellant contends, to “have awaited the development of testimony” to determine whether the witness was adverse or hostile, or that the prosecutor be “surprised” by the testimony when the court exercises its sound discretion in calling a court’s witness.

Appellant relies upon a number of authorities for his contention that the court erred in permitting the impeachment of Moore because he was not an “adverse” witness within the meaning of the rule permitting impeachment, and the jury was allowed to hear and consider the statements made by the prosecutor on the guilty plea proceeding.

But the authorities relied upon by appellant are not dispositive of the issues on this record. It is true that when a witness is called by a party, there is a distinction to be made between the mere failure of the witness to prove a fact for which he was called and where the witness actually becomes “adverse” or “hostile.” State v. Bowen, supra, 172 S.W. at 368. The distinction has been succinctly stated in State v. Hogan, supra, 177 S.W.2d at 466:

“ ‘We held in the case of State v. Bowen, 263 Mo. [279] loc. cit. 280, 172 S.W. 367, that it is not sufficient to warrant a party who puts a witness on the stand, in impeaching such witness . . ., that the witness merely fails or refuses to tell the facts which he had theretofore related extrajudicially or fails to tell all such facts, but in order to warrant impeachment in the mode stated, the witness must go further, and by relating wholly contradictory facts become in effect a witness for the adverse side. In the latter event the party calling the witness is entitled to show that he was misled and entrapped by the witness’ former words and attitude into calling the adverse witness. . . . ’ State v. Drummins, 274 Mo. 632, 204 S.W. 271.”

These decisions do not aid appellant. First, Moore did not merely fail to tell facts; he related wholly contradictory facts from the facts in the plea of guilty and in effect became a witness for the other side. Secondly, Moore was not called as a witness by the State but was called as the court’s witness. Hence, the principles established in the authorities relied upon are not dispos-itive of the issue presented here.

Appellant relies upon People v. McKee, 39 Ill.2d 265, 235 N.E.2d 625 (1968), and People v. Dandridge, 120 Ill.App.2d 209, 256 N.E.2d 676 (1970). In these cases, the convictions were reversed for the apparent reason that the admissions of an alleged accomplice under the guise of impeachment constituted error “. . . for the reason that such evidence is not competent even for the purpose of impeachment where the statement bears directly upon defendant’s guilt or innocence. . . .” People v. McKee, supra, 235 N.E.2d at 628. The apparent thrust of these decisions is that in our sister state it is not competent for the state to introduce inconsistent hearsay statements made out of the presence of the defendant, even for the purpose of impeachment, where the defendant has not vouched for the statement.

In Missouri, however, it is settled that prior inconsistent statements of a witness are admissible to impeach or discredit a witness to affect credibility. State v. Atkins, 494 S.W.2d 317, 320 (Mo.1973); State v. Granberry, supra, 491 S.W.2d at 534. Impeachment is not improper in this state on the ground that the impeaching statements are hearsay or that they implicate the defendant in the commission of a crime, or are made out of the presence of the defendant. State v. Yowell, 513 S.W.2d 397, 405 (Mo. banc 1974); State v. Covington, 432 S.W.2d 267, 269-270 (Mo.1968); Thomas v. State, 512 S.W.2d 116, 123 (Mo. banc 1974). We do not believe that the state should be barred from showing inconsistent statements, even though such prior inconsistent statements implicate the defendant or are hearsay. To bar the state would mean that a witness could deny any participation in the offense and bar any possibility of the state to discredit the credibility of a witness. Without impeaching evidence, the testimony of the witness would be highly beneficial to the defendant. While the defendant is entitled to a fair trial, so is the state.

But, as in the exercise of its sound discretion in calling a witness as its own, the court should utilize its sound discretion as to the extent and manner of the examination of the witness and the impeaching testimony. It was proper to permit the impeachment of Moore by the statements on the guilty plea and to Rhonda O’Neal after Moore denied certain facts in his “direct examination” by showing inconsistent statements made on the guilty plea and to Rhonda, but such extensive and pervasive impeachment by reading the totality of the record of the guilty plea may not be necessary to affect the credibility of the witness.

Appellant contends that there was error because the jury was allowed to hear and consider the statements made by the prosecutor on the guilty plea proceeding so that in effect the prosecutor was “really testifying.” State v. Hogan, supra, 177 S.W.2d at 466; State v. Rogers, 473 S.W.2d 710, 713 (Mo.1971). But there is no infirmity if portions of a guilty plea are read and it factually recounts what occurred on the guilty plea. State v. Rogers, supra, relied upon by the appellant is factually distinguishable.

Hence, we believe that, under Missouri law, a witness may be impeached by means of a guilty plea or other impeaching testimony, even though such statements may be hearsay, are not made in the presence of the defendant and implicate the defendant who is on trial. Such impeaching evidence, however, should, of course, be limited to its legitimate purpose of impeachment and should not be used as substantive evidence to show the truth of the matters asserted in such statements. A limiting instruction, MAI 3.52, may be requested or given, and the jury informed of the distinction.

YII

Conclusion

We have thoroughly reviewed the transcript, the extensive briefs of the appellant and the state and the numerous authorities relied upon therein, and we are convinced that under the facts of this case the cause should be reversed and the defendant be given a new trial.

The judgment of conviction is reversed and the cause remanded for further proceedings.

MORGAN, C. J., and TURNAGE, Special Judge, concur.

BARDGETT, J., concurs in result in separate opinion filed.

SEILER, J., concurs in result and concurs in separate opinion of BARDGETT, J.

DONNELLY, J., concurs in result.

FINCH, J., dissents in separate dissenting opinion filed.

HENLEY, J., dissents and concurs in separate dissenting opinion of FINCH, J.

RENDLEN, J., not sitting.

BARDGETT, Judge,

concurring in result.

I concur in result because I agree that the case must be reversed and remanded for a new trial. But my reason for doing so is that it was, in my opinion, error for the court to have called prosecution witness Jahmel Imrod Moore as the court’s witness in this case.

The opinion seems to suggest that the reason given by the prosecutor when he requested the court to call Moore as the court’s witness was sufficient, but footnote 20 seems to suggest that the element of surprise is necessary before such action is at all justified. Additionally, there is the suggestion that the defense did not make an adequate objection. Thus, I am not at all sure as to what the criterion is or will be in Missouri for this action. In any event, the fact that a state’s witness (codefendant here) has pled guilty to the offense in a case handled by the same prosecutor is a usual occurrence. It happens frequently, if not at least weekly, in our larger circuits and particularly when the prosecutor makes a deal with a codefendant to obtain his testimony in return for the prosecutor’s making a favorable recommendation to the court sentencing the witness. In less populous circuits or counties where the elected prosecuting attorney is the only prosecutor, it will happen every time one codefendant pleads guilty and then testifies for the state.

I regard the “reason” given by the prosecutor as simply an “excuse” to invoke a procedure whereby he can get a prior inconsistent statement before the jury and hope the jury consider it as substantive evidence of defendant’s guilt.

I concur in result.

FINCH, Judge,

dissenting.

I agree with much of the principal opinion. However, I disagree with the portion thereof which concludes that for certain trial errors this conviction should be reversed and remanded. Hence, I must respectfully dissent.

The principal opinion reverses and remands on the basis that certain evidence was improperly admitted in evidence and that the prosecutor made improper argument concerning such evidence in his closing argument to the jury. Defendant made no objection at trial to the introduction of the evidence in question and made no objection to counsel’s argument which the principal opinion holds to be reversible error. Instead, counsel for defendant argued this same evidence to the jury, pointing out portions thereof deemed to be favorable to defendant.

Defendant’s motion for new trial was silent on both of these questions. No objection to the admission of the evidence in question or the argument thereof to the jury is mentioned. It is first raised on appeal.

The principal opinion concludes that these matters are plain error for which a new trial should be granted. I disagree. These are not the type of trial errors for which this court has granted or should grant a new trial. The principal opinion relies on State v. Granberry, 491 S.W.2d 528 (Mo. banc 1973). However, Granberry did not reverse on the basis of plain error. The opinion therein contains no mention of Rule 27.20(c) nor does it hold that what occurred in that case constituted plain error.

      . Also known as Burl Lee Preston and Lee Burl Preston.

      . Dr. John J. Thomas testified that Lane had a “penetrating gunshot wound in the center of the occipital region.” A battered lead bullet was removed from the right frontal lobe. “The cause of his death was a penetrating gunshot wound of the skull and brain with traumatic intracranial hemorrhage . . .

      . A state’s witness, Anthony Bailey, testified that he saw Moore and Davis together at Davis’ girlfriend’s house in the afternoon of June 18.

      . [Prosecutor:] “Q You remember me also saying the following to the Court: ‘Prior.to driving around in the car there was some understanding or agreement between Moore and Davis that they would have Lane drive the automobile and when both of his hands were on the steering wheel then the man who was in the back seat would pull the gun out, fire the gun and kill Lane’? Do you remember me saying that that day in Court?
      A Yes.”

      . “Q And then correct me if I am wrong. I also stated the following: ‘I believe this followed almost identical to the plan. The only problem was when the gun was fired by Davis the man who was in the back seat, Lane’s body stiffened and hit the gas pedal and caused the car to lunge on down the street and into another automobile.’ Do you remember me stating that to the Judge?
      A Yes.”

      . At this point, defense counsel objected to this statement, stating: “. . . Your Honor, not part of the statement made by Jahmel Moore, what he is doing now, that is not responsive.” No objection was made that the statement was hearsay. Counsel did object on the grounds of hearsay to an earlier question — “Did he [Jah-mel] tell you how that shirt became bloody?”

      . Anthony Lee Bailey, of course, testified at trial. Debra Kent did not.

      . “[Prosecutor]: Thank you, Your Honor. Now, it is very interesting, with Imrod Moore, you see, he takes the stand, he will tell you — he is honest about this. He says they are close friends. Imrod Moore right now is up in Mob-erly in the penitentiary. .
      “He gets on the stand, he can tell you what he wants to tell you. This man is his friend, so the first time anyone hears of Billy Thompson is on this stand here — first time.
      “Now, we already know that the defendant Davis himself told O’Neal that he did it and described it in detail. The detail was identical to what Imrod Moore told you except for one thing, changing the name of the man in the back seat.
      “Rhonda takes the stand. Rhonda told you that they were sweethearts — high school sweethearts — Rhonda O’Neal and Imrod Moore when they were in school. They dated and Imrod had conferred and related all these things to Rhonda at the time of the shooting that night when he went over there with a bloody shirt and he told her that, ‘We shot Hector. We got him.’ She said, ‘Who do you mean?’ Imrod Moore told her, ‘Burl and I, we shot him. Burl was in the back seat. Burl had the gun. Burl shot him in the head. We got him.’

        “I asked Rhonda, ‘Have you ever heard of Billy Thompson?’ She said, ‘No.’ Was that name mentioned that night? No, it wasn’t mentioned because the man Billy Thompson, if there is such a person, didn’t do it. It is that easy, that simple and that clear.”

      . “All right. Jahmel Moore’s testimony, he was just beautiful. We have a man who has been convicted of two armed robberies . . , a man who has admitted his part in this murder, but, of course, he wasn’t convicted of murder in the first degree. You have an instruction of acting together — acting with another. One is as guilty as the other. ... He pled guilty.
      “Now, [the prosecutor] brought in the transcript of Jahmel’s plea. [He] recited the facts as at every plea the State does. If you recall the Court asked him in that plea, ‘Are these facts correct?’ And he [Jahmel] says, ‘Yes, to me.’ And they wanted him to say under oath that day that Lee Burl Davis pulled the trigger and he wouldn’t say it because Lee Burl Davis didn’t do it. He wouldn’t say it in here.”

      . “Now, I had read from the transcript when Jahmel pled guilty and you will recall, I am sure, that I read it, a rather lengthy statement that I had given to the Court, Judge Scott, as to the facts surrounding the case. You have heard it. It is the facts in the case. In that lengthy statement I told the Court that it was my understanding [that] Jahmel Imrod Moore was in that front seat and that he, along with Burl Davis, planned the murder and that Burl was in the back seat and that Burl Davis pulled the trigger. What followed, the Court asked him basically, ‘Is that true?’ And his answer— Mr. Moore’s answer first was, ‘About my behalf.’
      “When I was questioning the man I wasn’t trying to lead him. It was confusing to him. It is an awkward phrase, ‘About my behalf,’ in other words you are getting at that point that he was trying to limit himself to — he was trying to avoid, in front of Judge Scott, to implicate this friend of his, that was his first statement, ‘About my behalf.’ The judge didn’t understand. He said, ‘Pardon?’ And Moore repeated, ‘About my behalf.’
      “Now, they go on. They asked him all these questions about his rights and they wanted all these things. And then you bear with me here. Okay. Then we come down after that, the Court says, ‘Pardon?’ Mr. Moore says, ‘About me?’ The Court says, ‘Yes, about any of it that he stated.’ ‘He’ is the prosecutor, that is me. I had just got done stating all these facts, including that this man was involved. He said ‘Yes, any of it that he stated.’ ‘Do you have any doubts about wanting to plead guilty here?’ ‘No, I don’t have any doubts.’ The Court: ‘Is that correct what the circuit attorney said?’
      “Now, the common, plain meaning of the English language would be to turn back and see what I stated, and what I stated was that Davis was involved in this thing and his answer, I read it to him in the court the other day; I will read it again. The Court says, ‘Is that correct what the circuit attorney stated, Mr. Moore?’ ‘Yes.’ So, I don’t think it is quite true to say that Mr. Moore did not, at least at one point in time, admit that Davis was the one that pulled the trigger.
      “We know he did it. He told Rhonda. We know that Leonard O’Neal was present. And there in front of Judge Scott he again said, yes, what the circuit attorney said was true.

      . We infer from this that the appellant contends that in effect the prosecutor was “ ‘really testifying’ ” in the case and hence error was committed. In the reply brief, appellant contends that the principal argument in the “main brief” is “that a trial court commits error when it calls a person as its own witness and then permits the prosecutor, under the guise of impeachment, to introduce in evidence statements of the prosecutor himself implicating the defendant . . statements wherein the prosecutor himself is ‘really testifying’ . . .”

      . We take this to refer to both the impeaching evidence of Moore relating to the guilty plea proceeding and Rhonda’s impeachment of Moore in which she related that Moore told her that Burl had shot Lane after Moore testified he told Rhonda that Billy Thomas [Thompson] shot Lane. On oral argument, counsel contended that the testimony of Rhonda to the effect that Moore told her that Burl shot Lane was hearsay and hence inadmissible.

      . See also the argument of the prosecutor in State v. Woodard, 499 S.W.2d 553, 564 (Mo.App.1973).
      A comprehensive analysis of the arguments pro and con to the adherence of the orthodox view was made in the separate opinions of Donnelly, J., Seiler, J., concurring, and Finch, J., concurring in result. See also the authorities cited in the opinion of Finch, J., and the discussions in State v. Kinne, 372 S.W.2d 62, 68 (Mo.1963); Woelfle v. Connecticut Mut. Life Ins. Co., 234 Mo.App. 135, 151, 112 S.W.2d 865, 874 (1938); Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400, 411 (1935); Annot., 133 A.L.R. 1454, supra, at 1455; 3A Wigmore, Evidence, § 1018 (Chadboum rev. 1970); McCormick, Evidence, §§ 34, 39 and 251 (2d ed. 1972).

      . For example, the prosecutor said:
      “Now 1 have read from the transcript when Jahmel pled guilty and you will recall, I am sure, that I read it, a rather lengthy statement that I had given to the Court, . . . as to the facts surrounding the case. You have heard it. It is the facts in the case. In that lengthy statement I told the Court that it was my understanding Jahmel Imrod Moore was in that front seat and that he, along with Burl Davis, planned the murder and that Burl was in the back seat and that Burl Davis pulled the trigger. ...”

      . There are several Missouri decisions dealing with civil cases in which this procedure is recognized. Townsend v. City of Joplin, 139 Mo.App. 394, 123 S.W. 474 (1909) — “A judge, in the discharge of his duties, may call and examine witnesses in furtherance of justice . . .” 123 S.W. at 477; Gosnell v. Gosnell, 329 S.W.2d 230, 235 (Mo.App.1959); Chilcutt v. Baker, 384 S.W.2d 854, 860 (Mo.App.1964); Maryland Casualty Co. v. Spitcaufsky, 352 Mo. 547, 178 S.W.2d 368, 372 (1944).

      . Cf. People v. Bennett, 413 Ill. 601, 110 N.E.2d 175 (1953), relied upon by the appellant. There the court held that it was error for the court to call a witness only upon a showing that he was present and he refused to speak to the prosecutor. This case was distinguished in Smith v. United States, supra, 331 F.2d at 273.

      . See the procedure followed in People v. Gordon, 252 N.E.2d 562, 565 (Ill.App.1969).

      . See also People v. Gordon, supra. Court could call witness who was eyewitness, hostile and for whom prosecution was unable to vouch.

      . Appellant relies on People v. Krejewski, 332 Ill. 120, 163 N.E. 438 (1928). There, the Illinois Supreme Court reversed a conviction on the ground, inter alia, that the trial court allowed the state to impeach a court’s witness by introducing his statements made to another to the effect that the witness said that the police had the right man. The court held that it was not competent for the state, under the guise of impeachment of the court’s witness, to introduce hearsay statements made out of the presence of the defendant that the witness had identified the defendant. That case is distinguishable. The witness in Krejewski was not a participant in the offense but a customer in the store which was robbed. Secondly, it seems that Illinois law holds that a witness cannot be impeached by showing inconsistent hearsay statements made out of the presence of the defendant. That is not the law in Missouri.

      .However, on retrial it may be unwise to call Moore as the court’s witness or a witness on behalf of the state for the reason that on retrial the only purpose of putting him on the stand, now knowing what his testimony will be, would be to bring his impeaching testimony before the jury for its substantive value.

      . Among which are State v. Hogan, 352 Mo. 379, 177 S.W.2d 465 (1944); State v. Rogers, 473 S.W.2d 710 (Mo.1971); State v. Bowen, 263 Mo. 279, 172 S.W. 367 (1915); Woelfle v. Connecticut Mut. Life ins. Co., supra; Carlson v. First National Bank of Kansas City, 355 S.W.2d 928, 931 (Mo.1962) — general rule is that party may not call a witness and then impeach him merely because his evidence turns out to be unfavorable or unsatisfactory; see also State v. Drummins, 274 Mo. 632, 204 S.W. 271 (1918).

      . It is to be noted that failure to request a limiting instruction, MAI 3.52, has been held not to constitute plain error under Rule 27.-20(c). State v. Taylor, 472 S.W.2d 395, 402 (Mo.1971); State v. Martin, 411 S.W.2d 241, 242 (Mo.1967).
      But Rule 20.02(a), adopted May 18, 1973, states that “. . MAI-CR instructions in the 3.00 Series may be given by the court without a request therefor and shall be given where applicable if requested in the manner provided in this Rule.” MAI-CR, p. VIII. Compare Commonwealth v. DiPasquale, supra, 230 A.2d at 450.


source: Caselaw Access Project

author: RENDLEN, Judge.

license: Public Domain

text:
    STATE ex rel. GENERAL DYNAMICS CORP., a Corp., Relator, v. The Honorable Drew W. LUTEN, Jr., Judge, Circuit Court, St. Louis County, Missouri, Respondent.
    No. 60100.
    Supreme Court of Missouri, En Banc.
    April 28, 1978.
    Opinion Modified On Court’s Own Motion.
    Rehearing Denied June 15, 1978.

      John C. Shepherd, St. Louis, for relator.
    Veryl Riddle, St. Louis, for respondent.
   RENDLEN, Judge.

This is prohibition. We are called upon to decide if respondent has improperly enjoined relator from prosecuting its pending action against McDonnell Douglas Corporation in the Superior Court of San Diego County, California, and if so, whether prohibition is the appropriate remedy.

General Dynamics Corporation’s (General Dynamics) two count California suit, filed March 1, 1976, was amended March 23 to bring in four additional claims involving interpretation of and performance under the parties’ August 7, 1968, contract. McDonnell Douglas Corporation (McDonnell Douglas) moved to stay that proceeding alleging as a bar, the presence of a “first filed” Missouri suit with issues overlapping those in the California case, particularly those raised by the March 23 amendment. The Superior Court of San Diego County, though apprised of McDonnell’s “first” suit, denied the motion to stay, holding:

“[t]he determinative factors guiding the Court are as follows: convenience of witnesses; location of documentation; interpretation of California law; unavailability of compulsory process in the State of Missouri; and the enforceability and conclusiveness of the Judgment.”

Shunning appeal or other review of that ruling, McDonnell Douglas filed a motion, ancillary to its suit on the contract in St. Louis County, asking that court to temporarily restrain General Dynamics from prosecuting the California action. In the proceedings that followed (faulted by relator as lacking due process), respondent permanently enjoined General Dynamics, who now seeks prohibition to prevent enforcement of that injunction.

Before examining the issues, it should be noted that nothing filed in this court demonstrates that testimony was presented in the May 21, 1976, hearing on General Dynamics’ motion to stay and McDonnell Douglas’ motion for temporary injunction. Though reference is made in the court’s order, entered eventually on January 4, 1977, to “evidence” presented by the parties, no record of such “evidence” was preserved. Relator states categorically no testimony was given nor a court reporter present at the “so-called hearing.” The court’s minute entry of May 21, 1976, does not reflect the presentation of evidence and in respondent’s affidavit made February 10, 1977, more than eight months later, he states that at the May 21, 1976, hearing “. . .1 heard argument from counsel for both McDonnell Douglas Corporation and General Dynamics Corporation . . (Emphasis ours.) No mention is made of evidence offered or received. Later in the affidavit, however, respondent added this conclusory statement: “[ajfter consideration of the motions, the evidence, the briefs and the arguments of counsel for both parties, on January 4, 1977, I denied General Dynamics Corporation’s motion to dismiss or stay and entered the permanent injunction enjoining General Dynamics Corporation from prosecuting those issues it had added by amendment in the San Diego lawsuit.” (Emphasis ours.) We are not told the nature of such “evidence” and because no record of that or the other proceedings have been filed here, the facts must be gleaned from the pleadings, numerous affidavits, written suggestions submitted in the various trial proceedings contained in a 135 page “Joint Appendix” filed by the parties. In addition, respondent has submitted supplemental and second supplemental appendices totaling 242 pages which contain additional memoranda, pleadings, interrogatories, notices and related materials.

The parties to the underlying contract of August 7, 1968, are Convair and Douglas, the California divisions of General Dynamics and McDonnell Douglas, respectively. By the contract’s terms, Convair was to manufacture fuselages for DC-10 aircraft in San Diego to be shipped to Douglas’ Long Beach plant for assembly in their finished aircraft. This contract was the fruit of extensive negotiations conducted in Long Beach by executives of Douglas and Convair, which climaxed with the execution of that agreement in California. Art. 24 thereof provides:

“This Agreement and purchase orders issued hereunder shall constitute the complete and exclusive statement of the entire agreement between the parties hereto. This Agreement and such purchase orders shall be construed and performance thereof shall be determined according to the laws of the State of California.

Among many substantial contract disputes that have arisen is one described as “the weight/price issue” relating to the industry-wide practice among aerospace companies of calculating the price of an airplane fuselage from an estimate of its weight. Quite early Convair and Douglas disagreed as to estimated weights to be used in those price calculations. In the summer and fall of 1975, the companies opened negotiations concerning the option price of future “ship sets” orders beyond the first three hundred to be furnished by Convair. The agreement is a long term requirements’ contract with pricing provided for the first three hundred fuselage “ship sets” but with option pricing arrangements for subsequent “ship sets.” By relator’s briefs we are told that General Dynamics, in support of its motion to stay, detailed for respondent the many contacts of this litigation with California. For example, over four hundred file drawers of documents created by the negotiations and changes of the contract are in California, and fifty-five of the sixty witnesses potentially necessary to a proper resolution of this litigation reside there and are not subject to Missouri service of process. “[T]he DC-10 jetliner has been produced, assembled, and flight tested in California; the contract was negotiated, performed, executed, and amended in California; the outcome of this litigation directly affects thousands of California employees. .” In response, respondent’s brief states that all major decisions concerning the DC-10 production and sales program have required the approval and continuous participation of McDonnell Douglas Corporate Offices in St. Louis. The Chief Executive Officers of both companies reside and maintain their respective offices in St. Louis County.

In September of 1975, Sanford McDonnell, President and Chief Executive Officer of McDonnell Douglas and David Lewis, Chairman of the Board and Chief Executive Officer of General Dynamics, discussed possible resolution of the contract disputes. Sanford McDonnell, in an affidavit filed here in the parties’ “Joint Appendix”, complained that a number of items of correspondence from McDonnell Douglas to General Dynamics went unanswered during this period. These negotiations were largely unsuccessful and General Dynamics, faced with the possibility of its claim as to the weight/price issue being barred by limitations, prepared to file suit in San Diego. According to the Lewis affidavit of April 22,1976 (also appearing in the parties’ Joint Appendix), “it was necessary to file suit promptly.”

THE FEBRUARY 18, 1976, PHONE CONFERENCE

Before commencing the action, Lewis phoned McDonnell on February 18, 1976, and advised that his company was prepared to immediately file suit in California on the “Phase I Weight Issue.” McDonnell “indicated surprise and a lack of knowledge of the issue” so Lewis reviewed the history of the matter, stating he was reluctant to file this suit and asked McDonnell “if he would consider sitting down and negotiating a settlement on a timely basis in a manner similar to the way we had settled the DC-10 contractual change matter in August of 1974.” McDonnell stated he needed time to familiarize himself with the problem and inquired, “how much time General Dynamics Corporation could allow him before it required an answer” and asked that he be given “a few days time.” Lewis explained he was to be out of the country during the week of February 23 and suggested March 1, 1976, for a further telephone conference on the subject. “This was agreed upon,” but Lewis concludes:

“However, I very carefully conditioned my agreement for any delay upon Mr. McDonnell’s personal assurance that McDonnell Douglas Corporation would not file action against General Dynamics Corporation on the Phase I Weight Claim because General Dynamics Corporation wanted to preserve its option to file suit on this issue in San Diego County.”

Responding to the Lewis affidavit, McDonnell in his affidavit of April 15,1976, admitted having received the February 18 call from Lewis, and gave this version of the conversation:

“Mr. Lewis stated that General Dynamics Corporation had prepared a lawsuit claiming that it was entitled to a $16,000,000 price increase on the ‘weight’ issue which they intended to file unless we settled that issue. I was disturbed that General Dynamics’ only response to my letter was threatened litigation on a single issue and no response to my proposals for an overall settlement of our disputes. I asked Mr. Lewis if he wouldn’t give me a little time to look into the matter since I was not familiar in detail with the ‘weight’ issue. He asked that I agree that McDonnell Douglas Corporation would not file suit first on the ‘weight’ issue. I agreed to this, and we agreed to talk further on March 1, 1976.

From these statements we conclude that General Dynamics stood ready in February, 1976, to file suit in San Diego County, Superior Court, California, but in an effort to settle or amicably dispose of the weight/price issue, if not all others, its Chief Executive Officer advised McDonnell Douglas of the intention to proceed and readiness to file. If General Dynamics, instead of calling, had simply filed suit'such action would have provided relator the “first filed” position McDonnell Douglas now claims for its Missouri action.

We are not persuaded by respondent’s convoluted argument that only because of General Dynamics’ “threatened litigation” did McDonnell Douglas agree to further conference on March 1, 1976, and that this somehow balances the equities. General Dynamics was free to have filed immediately without notification or discussion of its intentions and had it “sued first” and “talked later” its suit would have been “first in time.” If McDonnell Douglas had refused to agree not to file on the “weight” issue or any other, General Dynamics could have proceeded forthwith and preempted the first position for its suit. From this a clear picture emerges of General Dynamics withholding filing suit pursuant to the parties’ agreement of February 18, and this forebearance is critical to the issues here.

THE MARCH 1, 1976, 8:30 A.M. PHONE CONFERENCE

On March 1, 1976, McDonnell phoned Lewis at about 8:30 a. m. and in his affidavit Lewis described that phone conference as follows:

“On 1 March 1976, Mr. McDonnell telephoned me at approximately 8:30 a. m. He stated that he had investigated the Phase I Weight matter extensively and had concluded that there was no merit to General Dynamics Corporation’s position. He brought up the fact that there were now several additional issues of major significance between the two companies on the DC-10 program and suggested that he and I and one or two of our top people get together and see if we could not resolve all open issues, including the Phase I Weight Claim, without resorting to court action. He proposed a meeting in my office at 8:30 a. m. on 9 March 1976 and I agreed with this date provided that he again assured me that McDonnell Douglas Corporation would take no legal action against General Dynamics Corporation on the Phase I Weight issue. Mr. McDonnell again agreed to this condition.”

In McDonnell’s affidavit he discussed the March 1 call and gives this account of that phone conference.

“On March 1,1976 I called Mr. Lewis in St. Louis and asked him if he would agree to enter into negotiations to settle all our disputes as part of a total package. I told Mr. Lewis I had looked into the ‘weight’ issue and I had concluded that General Dynamics’ claim had little if any merit and, in fact, in my view General Dynamics owed McDonnell Douglas money on that issue. I told him, however, that I would be willing to negotiate on the ‘weight’ issue as part of negotiations on the overall contract dispute in an attempt to arrive at a total settlement package. Mr. Lewis refused to make a commitment to negotiate on an overall settlement basis. I then asked him if he would agree to binding arbitration of our disputes. He also refused to commit himself to arbitration. At the end of this conversation he again asked that I agree not to file on the ‘weight’ claim before General Dynamics Corporation, and I agreed.”

It is significant that McDonnell did not deny the phone conference occurred at 8:30 a. m. and does not deny Lewis’ statement as to McDonnell having proposed and Lewis having agreed to talk further on March 9. McDonnell further conceded in his affidavit that following this (8:30 a. m.) March 1 conversation with Lewis, the Executive Committee of McDonnell Douglas met, discussed and “voted unanimously to file a lawsuit asking for a declaratory judgment that the Contract is unenforceable. .

THE MARCH 1, 1976, 10:00 A.M. PHONE CONFERENCE

At approximately 10:00 a. m. on that day, McDonnell again phoned Lewis and (according to Lewis’ affidavit) advised him that since their conversation earlier that morning, “[T]he Executive Committee of McDonnell Douglas Corporation had made the decision to file, and had filed, suit that morning. . . . ” Lewis stated he was “shocked and indignant” and asked McDonnell “how this action could have been taken in view of his commitment given to me in the middle of February and again earlier that very morning that McDonnell Douglas Corporation would initiate no legal action against General Dynamics Corporation on the Weight issue.” Lewis’ account of these matters is not denied by McDonnell who simply ignores or fails to discuss (in his April 15 and May 12 affidavits) the 10:00 a. m. phone call to Lewis announcing that since the 8:30 a. m. phone conference, McDonnell Douglas had filed in St. Louis County. Thus, notwithstanding the February 18 and the 8:30 a. m., March 1 agreements which forestalled the immediate filing of General Dynamics’ San Diego suit, McDonnell Douglas brought suit in St. Louis County Circuit Court and, after the fact, notified General Dynamics of its action. That afternoon General Dynamics understandably filed suit in the Superior Court of San Diego, California.

The McDonnell Douglas petition is in three counts: Count I asks the contract between the parties be declared “of no further force or effect.” Count II, on the other hand, seeks judgment declaring that only part of the contract “with regard to ship sets beyond set 300 is void and of no force or effect” and alternatively by Count III petitioner seeks a declaration of “proper method under the Contract for determining the price of ship sets 301-400.”

The California suit filed on the afternoon of March 1, 1976, presents two claims (delineated Causes of Action) raising different aspects of the weight/priee issue. In Cause of Action I plaintiff alleges defendant breached the August 7, 1968, contract “by refusing to perform its obligation thereunder in that, inter alia, it has refused and continues to refuse to negotiate in good faith an equitable adjustment in the ship set price which would give effect to the revised weights as provided in the Basic Agreement”, and prays for damages in the amount of $16,200,000. Cause of Action II alleges a dispute has arisen as to the proper date for defining the revised weights and the correct method of computing the same and prays for a determination of the equitable adjustment in the ship set price necessary to give effect to said “revised weights,” and that certain designated sections of the fuselage manufactured by plaintiff “should have been defined as of January 6,1969” and that no portion of the weight estimates as of January 6,1969 (specifically the tolerance allowance portion), should be omitted in computing the revised weights called for in the basic agreement between the parties.

On March 23, General Dynamics amended its suit, adding four new “Causes of Action” as follows: III seeks judgment declaring the contract valid and IV requests a declaration of General Dynamics’ entitlement to the option price as computed by it under the contract. “Causes of Action” III and IV involve generally the same issues raised in McDonnell Douglas’ Missouri suit. In “Cause of Action” V, General Dynamics seeks “an equitable adjustment in price by virtue of McDonnell’s unilateral stretch out of the delivery schedule” and by VI, a judicial determination of its right to payment of its cost increases resulting from structural alterations directed by McDonnell Douglas subsequent thereto. The latter two present additional issues which appear to be beyond the scope of McDonnell Douglas’ Missouri action and accordingly a judgment there might not be dispositive of the issues in those “Causes of Action.” We cannot be certain of this because of patent ambiguities in the pleadings and because we have not received the contract and related documents referenced therein.

Turning now to the central issues, it is settled in Missouri that where two actions involving the same subject matter between the same parties are brought in courts of concurrent jurisdiction, the court in which service of process is first obtained acquires exclusive jurisdiction and may dispose of the entire controversy without interference from the other. State ex rel. Kincannon v. Schoenlaub, 521 S.W.2d 391 (Mo.banc 1975). In State ex rel. Lamar v. Impey, 365 Mo. 437, 283 S.W.2d 480, 482 (1955), it was stated this way, “The law is well settled that the jurisdiction of a court first invoked cannot be defeated by a subsequent proceeding in a court having concurrent jurisdiction of the person or subject matter.” While this rule has certain exceptions, see Nicholls v. Lowther, 491 S.W.2d 3, 5 (Mo.App.1973), it is given broad application in cases filed in the courts of our state. Prohibition will lie to prevent interference in the proceedings of one court and the court in which the subsequent action is brought should sustain a plea in abatement. Draper v. Louisville & N. R. Co., 348 Mo. 886, 156 S.W.2d 626 (1941). In Draper, supra at 627, the court went on to state:

“ ‘[T]he general rule, that the pendency of a prior action, between the same parties, for the same cause of action, whether at law or in equity, may be pleaded in abatement of a subsequent action therefor . . ., applies only where two courts have concurrent jurisdiction of the same cause of action and where the prior action is pending in one of such courts, and the subsequent action in another; and therefore such a plea, ordinarily, will not be sustained where the prior action is pending in a court of foreign or different jurisdiction, or, as otherwise expressed, where the two actions are pending in courts of different sovereignties, such as in courts of different states . . . (Emphasis ours.)

While courts of one state have no authority to stay proceedings in the courts of another, a state court has power to control persons or things within its territorial limits and in an appropriate case may restrain a party from proceeding in another state, Doerr v. Warner, 247 Minn. 98, 76 N.W.2d 505, 513 (1956), but the court observed in Carpenter, Baggott & Co. v. Hanes, 162 N.C. 46, 77 S.E. 1101 (1913), “. . . the power should be exercised sparingly and only to suppress manifest injustice and oppression, and not from any arrogant sense of greater ability to do justice to either party or because of more favorable laws or of convenience of the parties.” Put somewhat differently, the power of one State’s court of equity to restrain persons within control of its process from the prosecution of suits in another State is clear, but on comity considerations, it should be employed with great caution. In Bigelow v. Old Dominion Copper Mining & Smelting Company, 74 N.J.Eq. 457, 71 A. 153 (1908), the court stated, “[TJhere must be very special circumstances that will justify this court in restraining the prosecution of an equitable action already pending in a court of such ample jurisdiction. . A condition precedent to an application to this court for relief in all ordinary cases is the absence of a full, adequate and complete remedy elsewhere.”

In the ease at bar, there is no suggestion that the California court cannot do full justice in the premises, and considering questions of comity, factors favoring California as the situs substantially preponderate against those in Missouri. As noted above, the headquarters and principal offices of McDonnell Douglas are officed in St. Louis County. Affidavits of company officers explain that perhaps twenty or more witnesses from Missouri and New York will probably testify and a large number of relevant corporate records and other evidence are located in Missouri. Against this are the numerous California witnesses (perhaps fifty or more); voluminous records are in California (estimated in relator’s brief at more than four hundred file drawers of documents); most negotiations for and performance of the contract with some 1,500 changes occurred there; and California has been the place of the aircrafts’ assembly. In addition, there is the provision of the contract that it “shall be construed and the performance thereof shall be determined according to the laws of the State of California.” We also weigh the effect on these proceedings of the California court’s ruling on McDonnell Douglas’ motion to stay. In denying that motion (which appears justified from the record), the California court, as noted supra, detailed in its ruling the factors affecting the comity issue and McDonnell Douglas has not sought review of that decision by appeal or extraordinary legal remedy.

We now examine the injunction proceedings. McDonnell Douglas’ motion “For Temporary Injunction” ancillary to its suit in St. Louis County, was apparently filed on or immediately after May 10, 1976. Its principal thrust is that McDonnell Douglas’ first filed suit must be accorded preference and it is this claim of priority that McDonnell Douglas asserts as the equitable basis for injunctive relief. The contention cannot withstand close scrutiny. As previously noted, General Dynamics prepared and was in the process of filing suit during February of 1976, but withheld so doing on the promise of McDonnell Douglas. From the affidavits and other records brought to this court, the conduct of McDonnell Douglas defeats its contention that the suit filed on the morning of March 1, 1976, should occupy a position of priority. General Dynamics’ forebearance in reliance upon McDonnell Douglas’ promises lead us to conclude that their suit in California filed on the afternoon of March 1, 1976, must be considered in equity as having been first filed. Apparently recognizing these equities and perhaps to avoid giving jural approval to McDonnell Douglas’ sprint to the courthouse, the trial court enjoined General Dynamics only as to those issues “added by way of amendment on March 23, 1976,” leaving it free to proceed on Causes of Action I and II. The trial court, however, erroneously determined that the March 23 amendments should be separated and enjoined General Dynamics from proceeding further on those issues, thereby effectively granting McDonnell Douglas’ suit priority. To follow that course would ignore several apparent equitable ingredients. General Dynamics was free at any time to file suit on the weight/price or any other issue stemming from the parties’ contractual relationships. Having filed, it could freely amend and as provided by the California statute, one such amendment is permitted as a matter “of course”. The agreement for the “first-filing” carried with it the right to freely amend. While this does not mean McDonnell Douglas was not free to file its own suit, McDonnell Douglas may not be heard to say that General Dynamics’ action will not be accorded a position of first in time or be limited as to amendments it might add. If General Dynamics were to be so limited, it would run afoul the California rule on splitting a cause of action, stated succinctly in Sutphin v. Speik, 15 Cal.2d 195, 99 P.2d 652, 655 (Cal.1940): “[T]he rule is that the prior judgment is res judicata on matters which were raised or could have been raised on matters litigated or litiga-ble.” Another shortcoming of the trial court’s order should be pointed out. Two “Causes of Action” Dot raised by McDonnell Douglas’ suit in Missouri, appear in General Dynamics’ California amendments of March 23, 1976, delineated “fifth” and “sixth.” Assuming arguendo that the trial court rightfully enjoined General Dynamics from proceeding on its causes of action numbered III and IV (the first two amendments of March 23, 1976) because the issues raised are within the scope of McDonnell Douglas’ Missouri action, that rationale has no application to V and VI. The trial court erred by enjoining further proceedings as to those “Causes of Action.”

An additional equitable consideration is found in the principle that one who seeks equity must come with “clean hands.” In Camfield Manufacturing Co. v. McGraw Electric Co., 70 F.Supp. 477 (D.Del.1947), the court denied plaintiff’s motion for a preliminary injunction by which the plaintiff, who had filed suit in Delaware, sought to enjoin the defendant from proceeding in its later filed Michigan suit. The court found that plaintiff, in return for defendant’s agreement not to file a direct infringement suit during negotiations, agreed defendant would have the opportunity of first filing his suit for direct infringement. When denying the injunction because of plaintiff’s conduct, the court stated, “This is a finding somewhat analogous to a finding that plaintiff comes into court with unclean hands. This compels a decision that plaintiff is not entitled to the injunctive relief sought,” concluding that “to obtain an injunction against a subsequently filed suit, a party must satisfy the first principles of equity that he has a right to such an injunction.” (l.c. 479) The principles announced and ruling in Camfield are applicable to McDonnell Douglas’ conduct here.

As a condition for obtaining equitable relief, petitioner must in a usual case show he has no adequate remedy at law. It is required that such must affirmatively appear from the face of the pleadings and from the evidence. State ex rel. Phillips v. Yeaman, 451 S.W.2d 115 (Mo.banc 1970). McDonnell Douglas in its motion alleges it has no adequate remedy at law but made no showing in support of that allegation. Its unadorned allegation is blunted by the presence of legal remedies available in the California system. McDonnell Douglas sought relief by its motion to stay in the California court, and on denial of that motion, it failed to seek review by appeal or proper writ in California. We are not, however, holding that the presence of such legal procedures in California constitute per se a bar to equitable relief in the Missouri court under the circumstances in this case. We need not reach or rule the point; instead the presence of such procedure, coupled with McDonnell Douglas’ partial resort thereto, are factors in determining the comity issue and to that extent impinge upon the question of appropriateness of injunctive relief.

The California court had jurisdiction to entertain the filing of General Dynamics’ original suit and the amendments thereto. It received and considered McDonnell Douglas’ motion to stay those proceedings and its ruling thereon remains a valid judgment on the issue. The jurisdiction of the California court and the right of the parties to prosecute proceedings therein, having once attached, cannot be arrested by the Missouri court. See State ex rel. New York C. & St. L. R. Co. v. Nortoni, 331 Mo. 764, 55 S.W.2d 272 (1932). The considerations of comity between states heavily favors California. Respondent argues that a race to judgment will result from the duplicative proceedings if injunction is prohibited. However, we must not lose sight of the possible consequences if respondent’s injunction stands. What is to prevent the California court from enjoining McDonnell Douglas’ prosecution of the Missouri suit? An impasse more critical than that posited by respondent could ensue.

Following the April 29, 1976, denial of McDonnell Douglas’ motion to stay in California, General Dynamics filed its motion to dismiss or in the alternative to stay the action pending in the Circuit Court of St. Louis County. Shortly thereafter, McDonnell Douglas filed its motion for a temporary injunction to restrain General Dynamics’ further prosecution of the California action and on May 15 respondent entered a temporary injunction (amending its order made the previous day), enjoining both parties from proceeding in the Missouri action “except as to matters in the cause herein that pertain to the motion to dismiss or stay set for hearing herein on May 21, 1976, until May 28, 1976, or until the further order of this Court. . . .” General Dynamics had noticed McDonnell Douglas that on May 14 its motion to dismiss or stay would be presented. The hearing was rescheduled and held on May 21. According to relator, McDonnell Douglas gave no notice of any intention to call up its motion for temporary injunction nor that a hearing be conducted for a permanent injunction. McDonnell Douglas’ only pleading in this regard was its “Motion by Plaintiff for Temporary Injunction” which, as noted above, sought in its prayer a temporary injunction until after General Dynamics’ pending motion (to stay) had been adjudicated by the court and, “if said motion is denied, to make said temporary injunction permanent, after further hearing.” In support of that motion, McDonnell Douglas had filed a document entitled “Memorandum in Support of Plaintiff’s Motion for Temporary Injunction” on or about May 10, in which it stated:

“Consequently, McDonnell is forced to seek temporary relief from this Court. Its motion simply requests that this Court exercise its power to maintain the status quo between the parties until after it has ruled upon General Dynamics’ motion. McDonnell does not request a permanent injunction at this time against the prosecution by General Dynamics of its second-filed duplicative lawsuit. The time for such motion will come after the Court rules upon General Dynamics’ forum non conveniens motion, as McDonnell submits that there is no sound reason for this court to accede to General Dynamics’ request that it abdicate its jurisdiction over this first-filed St. Louis lawsuit between St. Louis parties.”

The memorandum concludes with this statement:

“This Court should exercise its well-established power to enjoin General Dynamics from proceeding further in the distant San Diego forum until after its forum non conveniens motion has been adjudicated by this Court.” (Emphasis added.)

Because of the motion’s form, statements contained in the supporting memorandum and the fact there was no notice of hearing as to any permanent injunction, relator with apparent justification states it went to court at the rescheduled hearing on its (General Dynamics) motion to dismiss or stay and presented arguments on those matters. Affidavits of relator’s counsel filed here maintain that there was no discussion of equitable matters, such as irreparable injury, inequitable conduct, clean hands, adequate legal remedy, nor evidence relative thereto. No evidence was offered or arguments made on the equitable issues because no petition had been filed as required by Supreme Court Rule 92.01 for injunction, and no notice of hearing thereon given. While it appears the motion for temporary injunction could be construed as a petition sufficient to support an injunction proceeding, the record before us justifies relator’s complaints that there was no notice and no proper opportunity to present evidence on the issue of permanent injunction. Several eases are cited for the proposition that the party is entitled to a hearing prior to the issuance of a permanent injunction. State ex rel. Eagleton v. Cam eron, 384 S.W.2d 627, 629-30 (Mo.1964); Stegmann v. Weeke, 279 Mo. 131, 214 S.W. 134 (1919); Bayer v. Associated Underwriters, Inc., 402 S.W.2d 11, 13 (Mo.App.1966). See also Cirese v. Spitcaufsky, 265 S.W.2d 753, 758 (Mo.App.1954). Relator also contends that “the hearing held on May 14, 1976, on the temporary injunction cannot fulfill the requirement of a hearing on the permanent injunction,” citing among others, Bayer v. Associated Underwriters, Inc., supra. The difficulty under which we labor as to the latter contention is that there is no record of the hearing on May 14 other than the court’s general recital in the temporary injunction order that it had considered the motions, evidence, briefs and oral argument presented by the parties. However, it has not been shown how the hearing on the temporary motion would suffice to support the issuance one week later of a permanent injunction.

In view of all the circumstances here, we hold the trial court exceeded its jurisdiction when restraining relator from proceeding in its action pending now in the Superior Court of the State of California for the County of San Diego.

We order the provisional rule be made absolute.

All concur.

      . McDonnell Douglas had on the morning of March 1, 1976, a few hours prior to the filing of General Dynamics Corporation’s California suit, filed its two count petition on the contract against General Dynamics in the Circuit Court of St. Louis County, Division No. 10, bearing Cause No. 378709.

      . McDonnell Douglas’ motion, verified May 10, 1976 (the copy here bears no filing date), filed in connection with its original action is captioned “Motion by Plaintiff for Temporary Injunction,” and contains the following statement: “Comes now plaintiff, McDonnell Douglas Corporation (“McDonnell”) and respectfully moves that the Court temporarily enjoin defendant, General Dynamics Corporation (“General Dynamics”) from proceeding with the action it filed in the Superior Court of the State of California for the County of San Diego subsequent to the commencement of this action until after this Court has ruled upon defendant’s motion to dismiss or, in the alternative, to stay this action. . . ” (Emphasis ours.)
      The prayer states: “WHEREFORE, McDonnell prays that the Court enter a temporary injunction ordering General Dynamics to proceed no further in the San Diego case until after General Dynamics’ pending motion has been adjudicated by this Court and, if said motion is denied, to make said temporary injunction permanent after further hearing.” (Emphasis ours.)

      . Because of the unique manner in which those proceedings developed, respondent apparently deemed it necessary to make an affidavit ex curia relative to the alleged hearing in his court.

      . The foregoing statement from respondent’s brief is difficult to reconcile with the affidavit of McDonnell Douglas’ Chief Executive who stated on March 1, 1976, he “was not familiar in detail with the ‘weight’ issue” and so advised General Dynamics that date.

      . On May 12, 1976, Sanford McDonnell made a “supplemental affidavit” in which he reasserted the McDonnell Douglas argument, appearing throughout respondent’s brief, that McDonnell Douglas agreed “not to file suit first” only because of General Dynamics’ threatened suit. In the affidavit he puts it this way: “On 18 February and 1 March 1976 I had the telephone conversations with David S. Lewis, Chairman, Chief Executive Officer, and President of General Dynamics Corporation, which are referred to in my previous affidavit before the Court. As I pointed out in that affidavit, I only agreed, as a result of a threat asserted by Mr. Lewis to file suit on the ‘weight’ dispute, not to file suit first on that single dispute.” This again is the attenuated argument which ignores that General Dynamics was ready to file suit but withheld on McDonnell Douglas’ suggested agreement to bargain further.

      . The prayer of Count I requests that McDonnell Douglas be declared under no legal obligation to purchase future ship sets from General Dynamics, and that McDonnell Douglas “may purchase such ship sets from others or manufacture said ship sets itself without liability to General Dynamics.” The prayer’s second paragraph seeks an order that “General Dynamics is required to sell to McDonnell such additional ship sets as may be reasonably necessary to effect an orderly transition of manufacture from General Dynamics to McDonnell or another manufacturer” and finally for a determination as to the amount of payments if any which McDonnell should make to General Dynamics “upon termination of the contract”.

      . General Dynamics, to protect its time, filed notice of appeal in the Missouri Court of Appeals, St. Louis District, from the trial court’s judgment. The pendency of that appeal does not affect the outcome of this original proceeding.

      . Section 472 of the California Code of Civil Procedure states: “Amendment once of course .. Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or entered in the docket, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, * * *”

      . Relator in its brief states that McDonnell Douglas filed a motion to suspend discovery in the California suit on May 11, 1976, but there is no record of any other action taken there.

      . Respondent’s affidavit of February 10, 1977, gives this account of the May 21 hearing:
      “One week later, on May 21, 1976, I heard argument from counsel for both McDonnell Douglas Corporation and General Dynamics Corporation on General Dynamics Corporation’s motion to dismiss or stay and on McDonnell Douglas Corporation’s motion to make the temporary injunction permanent. At this hearing, I specifically inquired of counsel for both parties as to their positions concerning the propriety of separating the weight/price dispute, which was the only claim in General Dynamics Corporation’s original complaint in the above-referenced San Diego case, from the other disputes which were in issue in this lawsuit and which had been added to the San Diego lawsuit by an amendment filed by General Dynamics Corporation on March 23, 1976. Counsel for McDonnell Douglas Corporation responded to this inquiry by contending that it is possible to separate the weight/price dispute, and counsel for General Dynamics Corporation argued to the contrary. At the conclusion of the hearing, counsel for McDonnell Douglas Corporation orally reiterated its motion that the temporary injunction be made permanent at the same time as I denied General Dynamics Corporation’s motion to dismiss or stay, if I denied said motion.”
      Nothing in the affidavit contradicts relator’s assertions that no evidence was offered concerning a permanent injunction and that no formal notice was given to consider the issue.
      Respondent’s affidavit further states that the parties in the seven months following May 21, 1976, periodically reasserted their respective arguments concerning the propriety of separating the weight/price issue from the other disputes but no mention is made as to the nature of any evidence that might have been offered at the hearing concerning a permanent injunction. Respondent, apparently aware of the procedural shortcomings of that proceeding and the absence of proof on the injunction issue, added the following:
      “At no time during this [7 months] period did counsel for General Dynamics Corporation indicate to me that they sought any further opportunity to present their position concerning the permanent injunction requested by McDonnell Douglas Corporation or, specifically, the propriety of separating the weight/price dispute from the other disputes General Dynamics Corporation had added by its later amendment in the San Diego lawsuit, other than the further memo-randa and materials it submitted on that issue and the other issues previously asserted.”
      We fail to see how the passage of time would shift the burden of proof to General Dynamics on McDonnell Douglas’ motion for injunction. The record does not warrant an inference of waiver or estoppel that would deny General Dynamics its present contention as to the want of an adequate hearing.