author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. Frederick J. MARTIN, Appellant.
    No. KCD 27173.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.

      Thomas J. Cox, Jr., Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWQFFORD, P. J., and WEL-BORÑ and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment of conviction and sentence of 25 years’ imprisonment, imposed by court under Second Offender Act, after jury in Jackson County Circuit Court found Frederick J. Martin guilty of robbery, first degree.

At around 12:15 A.M., August 17, 1973, Paul Varsalona, general manager of Charlie’s Liquors, and Harry Bell, an employee of the store, were preparing to close the store for the day. Varsalona had counted the money in the cash register, consisting of 58 one-dollar bills and a $5 bill. He put this money in a sack on a shelf below the register.

The appellant, Frederick J. Martin, entered the store and walked to the rack where cakes and potato chips were displayed, across an aisle from the cash register. Martin stood at the display for a few minutes, saying nothing and making no selection. Bell left the store sales room and went to the back room.

An unidentified man entered the store, with a gun in his right hand, and told Varsalona, “This is a hold up.” The robber pulled his shirt over his face up to his nose and went behind the counter and put the gun at Varsalona’s head. He asked Varsa-lona where the other man was and when Varsalona said he was in the back, the robber said, “Let’s go get him.” He walked Varsalona to the rear. Varsalona called for Bell and when Bell appeared the robber told the two to lie on the floor. The robber went through the pockets of the two men. A second unidentified man appeared and said to the robber, “Come on, man, you are taking a long time, let’s get out of here.”

The robber ordered Varsalona into the cooler, about twenty feet from the cash register. When he entered the cooler, Varsalona set off a silent alarm which notified police that a holdup was in progress.

The robber then put his gun at the back of Bell’s head and “marched” him to the cash register. Martin was standing a few feet from the register, with a gun in his left hand. The other robber said, “You take over from .here” and left the store. Martin told Bell to empty the cash register. He did so and placed the money in a sack and handed it to Martin. As he was handing the sack to Martin a boy entered the store. Three police officers who had converged on the scene in response to the alarm set off by Varsalona entered the store shortly after the boy’s arrival.

The police officers saw Martin at the cash register with a paper sack in his right hand. The sack contained $58 in one-dollar bills and one $5 bill. The cash register was empty. Next to the cash register the officers found a loaded revolver. Varsalona was freed from the cooler and told the officers that Martin was involved in the holdup. The officers placed him under arrest. The boy was not held when Varsalona indicated he was not involved in the holdup.

In addition to the $63, some $1100 to $1200 in “money order” money was missing from the store. The police saw no one-leave the store as they approached it.

At Martin’s trial on a charge of robbery in the first degree with a deadly weapon, the state’s evidence was the testimony of Varsalona, Bell and the police officers to substantially the above facts. Martin testified in his own behalf, and stated that he was in the store only as a customer and took no part in the robbery. He denied ever having the sack of money in his hand and any knowledge of the revolver found by the police. He said there were two robbers who left just as the boy entered and that he started to leave, but the police arrived and ordered him to remain. He admitted on cross-examination that he was under the influence of heroin at the time in question.

A jury found Martin guilty of robbery in the first degree. The trial court, having found the Second Offender Act applicable, fixed his punishment at 25 years’ imprisonment. After his motion for new trial was overruled, defendant was granted allocution and judgment entered in accordance with the verdict and the penalty assessed by the court.

The trial of the defendant was somewhat stormy, marked by frequent outbursts by the defendant, directed primarily at his appointed counsel and also the court. On this appeal, the first assignment of error, advanced by counsel appointed for the appeal after trial counsel requested to be relieved, is that the trial court erred in refusing appellant’s request for a continuance to permit him to employ counsel of his own choosing.

The information was filed in the circuit court August 31, 1973. Mr. Paul Katz, an Assistant Public Defender, was appointed to represent the defendant. The date of his appointment does not appear, but he apparently represented Martin at the preliminary hearing and beginning in September had filed various motions in the circuit court on behalf of the defendant.

The case was set for trial November 14, 1973. A pretrial hearing was held to take up motions to suppress identification testimony and a statement by defendant to police. Defendant appeared with Mr. Katz. Mr. Gary Haggerty of the Public Defender office appeared with Katz to assist in the defense. Haggerty advised the court that the defendant “indicated just this morning that he desires to have us relieved as counsel * * The court permitted defendant to state his reasons for this request. He stated that he did not feel Katz was “putting forth his best effort to defend me.” In a somewhat rambling discourse, with little specifics, the defendant advised the court that his studies in the law library and discussion of the case with “a few dudes upstairs in the jail” led him to believe “there is a lot of things you should have got done that wasn’t done.” Katz advised the court that he had been to the scene of the crime, had interviewed Varsalona, and Sta-ley, the boy who entered the store during the holdup; that he had perused the prosecution files and had all of the police reports; that he had seen the defendant on six to eight occasions and spent several hours with him and that he felt he was prepared to go forward with the trial and assist the defendant.

The court advised defendant that there was nothing which would justify the court in relieving defense counsel and ordered the trial to proceed. A hearing was held on the motion to suppress identification testimony and on the motion to suppress the statement to the police. Both motions were overruled. Voir dire of the jury panel was held and the jury selected.

At that stage of the proceedings, Mr. Haggerty advised the court that the defendant wanted to move for a continuance on the basis that he was employing a private attorney. The defendant stated:

“I was under the impression which I had been told in the counsel room by both of these attorneys that if I did hire a private attorney, it would be all right and I would like a private attorney because these two men are not trying to represent me and my wife went and talked with Mr. Anthony Renaldo and he has agreed to enter an appearance as my lawyer to handle this case for me. Now, the time it is going to take him to get here, I don’t know, but I do not wish to go to Court with these two men because they are not representing me and I wish to hire a private attorney.”

The court stated that the request was denied because it was too late.

On this appeal, appellant states his assignment of error as follows:

“THE REFUSAL OF THE TRIAL JUDGE TO GRANT A CONTINUANCE, WHERE NO PREVIOUS CONTINUANCE HAD BEEN GRANTED, FOR THE PURPOSE OF ALLOWING APPELLANT TO PROCURE EFFECTIVE COUNSEL WHERE HIS COUNSEL AT TRIAL WAS INEFFECTIVE, CONSTITUTED AN ABUSE OF DISCRETION.”

His argument on this point combines the claim of error in failing to grant a continuance to permit the employment of private counsel with a complaint of ineffectiveness of appointed counsel. Inasmuch as the record before this court is inadequate to permit consideration of the question of inadequate assistance of counsel, that portion of the argument will be disregarded and the question of refusal of the continuance will be treated as the claim of error properly before this court. See State v. Hedrick, 499 S.W.2d 583, 586[8] (Mo.App.1973).

The appellant first voiced disapproval of the counsel appointed to defend him at the pretrial hearing on the date that the ease was set for trial. The appellant asserted differences with appointed counsel about the action being taken in his behalf. The trial court found no substance to the differences and determined that appointed counsel was prepared and ready to try the case. No suggestion was made at that time that appellant sought or was able to procure counsel of his own choosing.

After the voir dire and selecting of the jury, a continuance was requested on the grounds that defendant through his wife had made arrangements with an attorney to represent him. The trial court overruled the request as untimely.

In these circumstances, no abuse of discretion on the part of the trial court appears. The trial court obviously considered the move of the defendant as an effort to delay the trial rather than a bona fide action on the part of defendant to employ counsel of his own. The alleged newly employed counsel did not appear and no assurance was given as to when he might do so. The trial court was not obliged at that stage of the proceedings to grant a continuance on the basis of the defendant’s statement. The request was directed to the court’s discretion and the denial of the request was not error. See State v. Jefferies, 504 S.W.2d 6 (Mo.1974); State v. Lahmann, 460 S.W.2d 559 (Mo.1970); United States v. Leach, 429 F.2d 956, 963[16, 17] (8th- Cir. 1970), cert. den. 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 151 (1971).

Appellant would distinguish Jefferies and Lahmann because of the different facts in those cases. Generally each case involving this problem presents a distinctive factual situation. The determination must be made on the facts of each ease as to whether the trial' court’s refusal of a continuance was an abuse of discretion. On the facts here, no abuse has been demonstrated.

Appellant’s second assignment of error also relates to the trial court’s refusal to grant a continunce or delay in order to permit the production of a defense witness.

The state closed its case around noon on the second day of the trial. Out of the presence of the- jury, defense counsel interrogated the defendant about his wish to testify in his own behalf. In the course of the interrogation defendant stated that he wanted Staley, the boy who came into the store during the robbery, as his first witness. Defense counsel stated that he thought Staley could be produced in an hour and a half. When court resumed following the noon recess, Staley was not present. Defense counsel stated that an investigator for his office was attempting to locate the witness. The trial judge said that the case must proceed and defendant took the stand and testified.

At the conclusion of defendant’s testimony, Staley had not appeared. Defense counsel stated that a subpoena had been served on Staley and that he was in court on the first day of the trial, but had been excused by defense counsel with the understanding that he would come to counsel’s office the next morning. He failed to do so and counsel was of the opinion that the witness was hiding. The court agreed to recess the proceedings until the following morning in order to permit the production of the witness.

When court resumed the following morning, the witness was not present. An investigator for defense counsel’s office testified to his efforts to locate the witness. . The judge concluded that every effort had been made to locate the witness and that the witness was trying to avoid the investigator. Without further request from defense counsel, the court inquired whether the defense had anything further and counsel replied negatively.

The respondent questions whether or not appellant properly presented his request to the trial court for a continuance because of the absence of the witness. Defense counsel did advise the court that he objected to proceeding further without the presence of the witness. The adequacy of this move is questionable, but the assignment will not be disposed of on the procedural grounds. Clearly, the trial court was aware of the defense position.

This is, however, again a matter of discretion for the trial court. Numerous factors might be pointed to as justifying the trial court’s ruling here, such as the untimeliness of the request (State v. Martin, 515 S.W.2d 802 (Mo.App.1974)), or the form of the request (Rule 25.08(b), V.A.M.R.). Most significant here, however, is the failure of the defense to show the importance of the witness’s testimony. Mr. Katz did not want to call Staley as a defense witness. Either Katz or Haggerty had interviewed the witness, but no statement had been taken from him. At the most, they informed the court that the witness would testify that he did not see Martin pull his shirt over his face, as Bell testified he had done. According to counsel, the witness had told them that he paid little attention to the defendant and did not know whether he held a gun or a sack. He would have placed Martin at the cash register in Bell’s presence.

In his brief in this court, appellant says that he does not know what Staley would have said but that appellant is entitled to the benefit of the doubt.

On this record, the trial court cannot be said to have abused its discretion. Defense counsel who had interrogated the witness were not anxious for his testimony. The defendant who insisted on it stated that he did not know what the witness would say. The trial court granted one request for a brief delay to permit production of the witness. He was properly patient with defense efforts to produce Sta-ley, but when the efforts were unsuccessful and no convincing showing had been made of what material contribution the defense expected from the witness, the trial court was not required to protract this case further. The trial court’s action was a proper exercise of discretion.

Appellant next complains of the trial court’s refusal to grant a mistrial based upon an occurrence involving a bailiff and defendant’s wife and also an occurrence in which defendant struck his trial attorney.

On the first occasion, when the trial resumed on the second day following the noon recess, the trial court directed the bailiff to remove a woman spectator “the next time she says anything in the courtroom.” After the defendant had been sworn as a witness and had given his name and age, the following appears in the transcript:

“(Whereupon, the following proceedings were had in the back of the courtroom between the Bailiff for Div. 3 and a woman spectator:)
“THE BAILIFF: You will have to keep quiet or leave.
“THE WOMAN: I don’t have to leave, he ain’t getting no justice here.
“THE BAILIFF: You will have to leave or keep still.
“THE WOMAN: You get your hands off me.
“(Whereupon, the defendant left the witness stand and went to the back of the courtroom and was stopped by the Deputy Sheriff.)
“THE WOMAN: He’s not getting no justice, you white prejudice bastard.
“THE COURT: Mr. Carl, take her out of the courtroom. Mr. Sheriff, tell the defendant to come back to the witness stand.
“(Whereupon, the defendant was escorted back to the witness stand by the Deputy Sheriff.)
“(Counsel approached the bench and the following proceedings were had:)
“MR. KATZ: Your Honor, under these circumstances, we move for a mistrial, I believe it prejudicial the disruption of Mr. Carl, the Court Bailiff, and a Court spectator, I believe Mrs. Martin—
“(Proceedings returned to open Court.)
“MR. MARTIN: Yes, that’s my wife, man, she’s as tired as I am about how you all are messing over me and depriving me of all my rights down here in this courtroom.
“THE COURT: The request for mistrial is denied. I admonished the Bailiff to remove that person from the courtroom if she said anything further. She has been back there talking during this preliminary hearing out of the presence of the jury. Following the Court’s direction, she was removed. Now proceed with the examination.”
The second incident is described as follows:
“THE COURT: Members of the jury, we have heard all of the evidence in this case, there is nothing further and at this time, I am going to read to you the Instructions on the law, after which the attorneys will make their arguments.
“THE DEFENDANT: Your Honor — get up there, man—
“THE COURT: You have been given Instructions—
“THE DEFENDANT: The defense has a more evidence they would like to put it on, my lawyer don’t want to put it on and I want—
“THE COURT: Will you gentlemen come up here please?
“(Counsel approached the bench and the following proceedings took place: The defendant arose from his chair and approached his attorney from behind and struck him in the back of his head. The Defendant was then subdued by the Deputy Sheriffs present in the courtroom.)
“THE COURT: Take him out of the courtroom. Members of the jury, please go up—
“THE DEFENDANT: What the (expletive omitted) is wrong with you? '
“THE COURT: —-to the jury room.
“THE DEFENDANT: You (expletive omitted) wants somebody to plead for something they ain’t never did. I ain’t pleading guilty for nothing. You’re not going to defend nobody, you get off my case, man, I told you a thousand times, you prejudice, he prejudice and the judge is too.
“(The following proceedings were had OUT OF THE PRESENCE AND HEARING OF THE JURY, in the courtroom:)
“THE COURT: All right, now, wait before you take him out. Let the record show that the defendant has just struck his court appointed attorney—
“THE DEFENDANT: Because I want him off my case and put that in the record too and the Judge won’t let him off because all of them are prejudice against me.
“THE BAILIFF: Will you shut up?
“THE COURT: Wait, Frank, let him talk. Now, Mr. Martin, I have advised you earlier your conduct was going to result in your removal from the courtroom if it continues—
“THE DEFENDANT: Have I prevented in any way — •
“THE COURT: —and it has just resulted in that. You will be removed from the argument. Take him outside.
“THE DEFENDANT: Let me get my papers before I go, can I get that?
“THE COURT: Take him outside.
“(Whereupon, the defendant was excluded from the courtroom.)
“MR. KATZ: Your Honor, I would move for a mistrial based upon the actions of the defendant having at least a scintilla of doubt as to whether — I myself don’t have any doubt as to whether I could defend the defendant in closing argument after the assault but for the record — -the record may itself be jaded by this action of the defendant.
“THE COURT: Mr. Katz, the Court is very sorry that you are in the position you are in. I think, however, that the conduct that was just displayed was intentional and deliberate effort on the part of the defendant to provoke a mistrial. He was repeatedly admonished about his conduct during this trial and without any reason, he struck you in the back of the head. Now I recognize the difficult position you are in, but I am not going to grant a mistrial. I think this has been a sole effort of this defendant throughout this trial to provoke a mistrial and I think this was the last straw in his effort to do that. * * * ”

The trial court did not err in refusing to grant the request for a mistrial in either of these instances. Whether or not an outburst by a spectator or the defendant requires the drastic remedy of a mistrial is a matter for the trial court’s discretion. State v. Robertson, 480 S.W.2d 845, 847[5, 6] (Mo.1972); State v. Jackson, 506 S.W.2d 424, 427-429[4] (Mo.1974). “The trial court is charged with maintaining orderly procedure in the courtroom, and it may properly exercise discretion in determining the steps necessary to maintain order.” State v. McGinnis, 441 S.W.2d 715, 717[1] (Mo.1969). The trial court’s action with regard to the instance involving defendant’s wife was a proper exercise of such authority. With respect to the defendant’s striking his attorney, the trial court properly declined to put a premium upon the defendant’s misconduct by granting the mistrial which he was so obviously seeking. State v. McGinnis, supra.

During the voir dire examination of jurors, defendant moved for a mistrial “based on the fact some of the jurors saw him in handcuffs when he was out in the hall.” The court summarily denied the motion. Under the ruling of this court in State v. Warriner, 506 S.W.2d 103, 104[1] (Mo.App.1974), this action by the trial court was not erroneous.

Appellant next contends that the trial court erred in failing to sustain his motion to suppress the in-court identification testimony of Yarsalona and Bell. Appellant acknowledges that he can point to no out-of-court identification procedures which might have influenced the identification testimony. More significantly in this case defendant’s identification was hardly an issue. He was apprehended at the scene of the crime. Bell and Varsalona saw him during the robbery and when he was arrested. There was no question that defendant was the person arrested, the sole question being the extent of his participation in the robbery. The trial court did not err in overruling the motion.

Appellant claims that the 25-year sentence imposed upon him is excessive, in the light of the facts of the case, and constitutes an abuse of discretion. The offense for which defendant was convicted is punishable by imprisonment for not less than five years, with no maximum specified. § 560.135, RSMo 1969, V.A.M.S. His prior conviction of robbery in the first degree made the length of the sentence a matter for the court. The 25-year sentence is within the limits prescribed by § 560.135, and the claim of abuse of discretion is without merit. State v. Grimm, 461 S.W.2d 746, 754[7, 8] (Mo.1971).

In a pro se brief, appellant attacks the principal instruction on the grounds that it permitted a finding of guilt if the defendant acted in concert with another. Appellant contends that this was erroneous because the information made no reference to his acting with another. No such allegation was required in the information in order to permit the instruction. State v. Scullin, 185 Mo. 709, 84 S.W. 862 (1905).

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: SWOFFORD, Judge.

license: Public Domain

text:
    Marie BOYLE, Appellant, v. COLONIAL LIFE INSURANCE COMPANY OF AMERICA et al., Respondents.
    No. KCD 26563.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.
    Motion for Rehearing and/or Transfer Denied Aug. 5, 1975.
    Application to Transfer Denied Sept. 8, 1975.

      Donald E. Raymond, Kansas City, for appellant.
    Lawrence M. Berkowitz, Kansas City, for respondent Colonial; Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, of counsel.
    Don B. Roberson, Kansas City, for respondents Davis; Shugart, Thomson & Kilroy, Kansas City, of counsel.
    Before PRITCHARD, P. J.; and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

This is an action brought by the widow of one Ernest Boyle, in three counts, in each of which she claims the proceeds of certain life insurance policies issued by the respondent Colonial Life Insurance Company of America (hereinafter called “Colonial”) insuring the life of the said Ernest Boyle and in which the appellant was named beneficiary. She alleges that such policies were in full force and effect at the time of her husband’s death on July 24, 1969.

These counts on the insurance policies were joined with a fourth count wherein the appellant, pleading in the alternative, sought damages in the amount of the insurance policies against the'Herb Davis Insurance Agency, Inc. and Herb Davis individually (herein referred to collectively as “Davis”). Basically, this fourth count was bottomed upon allegations of negligence in failing to keep such life insurance in force in accordance with an agreement between Davis and the Boyles.

Colonial filed its answer to the petition, wherein it admitted the issuance of said insurance contracts, but set up as a defense the alleged fact that each of said insurance contracts “was lapsed and forfeited for nonpayment of premiums at the time of the death of Ernest W. Boyle.”

Davis filed a joint and separate answer to the petition, admitting that Herb Davis is a “duly licensed insurance agent” of Colonial and the issuance of the insurance contracts, but generally denying the allegations of Count IV of the petition and further alleging that if the policies sued on “were not in force and effect” then Colonial “is estopped to deny their issuance and the coverage” thereunder. Coupled with this answer, Davis filed a cross-claim against Colonial in two counts. This cross-claim asserts that if Davis is held liable to appellant, Davis is entitled to indemnity for such loss and recovery from Colonial because of Colonial’s wrongful conduct in several particulars by reason of its handling of such policies and its failure to notify either Davis or the insured of any lapse.

Colonial filed its answer to the Davis cross-claim, in the nature of a general denial. Coupled with this answer, it in turn filed its cross-claim against Davis admitting that at all times mentioned, “Davis and The Agency were the duly authorized agents of Colonial Life”. Liability on the insurance contracts was again denied, but if such was found to exist, Colonial asserted it was entitled to indemnification from Davis because in arranging financing of the insurance premiums and in accepting premium payments on the insurance, Davis acted outside the scope and contrary to his authority as agent of Colonial and negligently failed to pay the premiums due on said policies in September, 1968.

The Davis reply to Colonial’s cross-claim was in the nature of a general denial.

The appellant filed a reply to Colonial’s answer, in which she set forth the whole legal and factual theory of her action on the policies. These allegations need not be set out in detail but may be thus summarized: first, by reason of Colonial’s lapsing the policies prior to its insured’s death for alleged failure to pay the premiums due for the period from September, 1967 to September, 1968 (which premiums had in fact been paid), the insured was relieved and excused from any obligation to pay further premiums, and since Colonial had asserted the same reason for its denial of the death claims, it is estopped to refuse payment for the asserted failure to pay any subsequent premiums; second, that the original wrongful lapse of the policies by Colonial caused appellant to expend time and attorneys’ fees to prove that the action of lapsing the policies was wrongful and Colonial is es-topped to assert any other or different defenses to appellant’s claims; third, that Davis was clothed with the actual and apparent authority as agent for Colonial to make arrangements for the financing of the premiums with the insured, to accept premium payments on behalf of Colonial, and that it was the custom and practice of Colonial to give its soliciting agent and its insured notices of premiums due and lapse notices, which it had failed to do, and is thus es-topped and precluded by such failure; fourth, that the premiums due for the period of September, 1968 to September, 1969, had in fact been paid to Colonial by the execution of the financing papers (invoice contract) in July, 1968; fifth, that the premiums for the period from September, 1969 to September, 1970, had been paid to Colonial, acting through its agent Davis, and Colonial is therefore estopped to assert non-liability because of nonpayment of premiums due prior to September, 1969.

With the issues thus drawn, the cause proceeded to trial, and at the conclusion of appellant’s evidence the trial court sustained motions for directed verdicts as to both Colonial and Davis. The trial court, so far as the record shows, stated no reasons for this action. After an unavailing motion for a new trial, appellant perfected this appeal.

The action of the trial court in granting the motions for directed verdicts at the close of the plaintiff’s evidence is a drastic one and “should be done only when all of the evidence and the reasonable inferences to be drawn therefrom are so strongly against plaintiff that there is no room for reasonable minds to differ.” McCarthy v. Wulff, 452 S.W.2d 164, 168[3] (Mo.1970); Smith v. Prudential Insurance Company of America, 300 S.W.2d 435, 440[3] (Mo.1957); Baumle v. Smith, 420 S.W.2d 341, 344[3] (Mo.1967); Wehrkamp v. Watkins Motor Lines, Inc., 436 S.W.2d 698, 700[1] (Mo.1969).

Another principle of law firmly implanted in this state is, that in a suit to collect the proceeds of a life insurance contract, the plaintiff makes a prima facie case by proving the issuance of the policy by defendant, payment of one premium, beneficiary designation, death of insured, demand for payment, and refusal thereof. Connor v. United Insurance Co., 313 S.W.2d 222, 224[5] (Mo.App.1958); Saunders v. Crusader Life Insurance Company, 421 S.W.2d 563, 567[5] (Mo.App.1967).

Equally well defined in law is the fact that affirmative defenses to suits upon insurance contracts, including the defense of lapse and forfeiture for nonpayment of premiums, as is asserted in the case at bar, must be pleaded, Connor v. United Insurance Company, 313 S.W.2d 222, 225[6] (Mo.App.1958), and the burden of proof on such issue is on the defendant, Stout v. Independent Order of Foresters, 115 S.W.2d 32, 35[3] (Mo.App.1938); Clair v. American Bankers Ins. Co., 137 S.W.2d 969, 973[7] (Mo.App.1940); Saunders v. Crusader Life Insurance Company, supra, and such burden remains with the defendant throughout the case, Gennari v. Prudential Insurance Company of America, 335 S.W.2d 55, 60[2] (Mo.1960).

Once the plaintiff has established his prima facie case, it is the ancient and general rule that his case cannot be taken from the the jury “for he has the right to have the jury pass on the credibility of the defendant’s witnesses and the weight of their testimony”, Peterson v. Chicago & A. Ry. Co., 265 Mo. 462, 178 S.W. 182, 187 — 188[3] (1915); Smith v. Prudential Insurance Com party of America, 300 S.W.2d 435, 440[3] (Mo.1957). In Smith, the court notes an exception to this general rule and states it in these terms (l.c. 440):

“ * * * When the proof is documentary, or the defendant relies on the plaintiff’s own evidential showing (or evidence which the plaintiff admits to be true), and the reasonable inferences therefrom all point one way, there is no issue of fact to be submitted to the jury. * * * ” (Emphasis supplied)

In the case of Thrower v. Life and Casualty Ins. Co. of Tennessee, 141 S.W.2d 192 (Mo.App.1940), the court declared, l.c. 195[4, 5]:

“The burden of proving the affirmative defense pleaded by defendant was upon defendant. * * * It is the established rule in this State that, where plaintiff has made out a prima facie case, it is beyond the power of the trial court to direct a verdict in favor of defendant where defendant has the burden of establishing an affirmative defense, unless such defense is conclusively established by evidence which is conceded by plaintiff to be true, or is established by documentary evidence which is of such a character as to be binding upon plaintiff and thereby to es-top him from denying it.” (Emphasis supplied)

In reviewing the action of a trial court in ruling on defendant’s motion for a directed verdict (whether ruled at the close of plaintiff’s evidence or at the close of all the evidence, and whether sustained or overruled) the reviewing court must determine whether plaintiff made a submissible case, and in so doing, the plaintiff is entitled to the most favorable view of all the evidence and must be given the benefit of all favorable inferences to be drawn therefrom. Duke v. Missouri Pacific Railroad Company, 303 S.W.2d 613, 616[1] (Mo.1957); Willis v. Wabash Railroad Company, 377 S.W.2d 489, 492[1] (Mo.App.1964); Hale v. Kansas City Southern Railway Co., 363 S.W.2d 542, 543[1] (Mo.1963); Grissom v. Handley, 410 S.W.2d 681, 684-685[2] (Mo. App.1966).

An important corollary of this principle is that where a trial court has directed a verdict for the defendant at the close of plaintiff’s evidence, the “plaintiff may urge any and all possible theories of liability, and, of course, if any one of them is valid the court erred in not submitting the ease to the jury.” Arbogast v. Terminal Railroad Association of St. Louis, 452 S.W.2d 81, 83[1] (Mo.1970).

It is under the searchlight of these guiding principles and within the restrictions that they impose, that the evidence in the trial court must be reviewed and tested.

There can be no doubt that the appellant made a prima facie case against Colonial. The three policies of life insurance sued on were offered and received in evidence as part of appellant’s case. They show that they were all issued on September 1, 1967, based upon applications dated August 30, 1967, secured by Davis as agent for Colonial, and that the appellant was named as sole beneficiary. The fact that the insured died July 24, 1969 is not disputed nor the further fact that through Davis proper proof of death and claims thereon were submitted to Colonial and payment thereon refused under date of August 7, 1969 (P. Exh. No. 7) for the stated reason:

“Policies numbered 421696 and 421698 lapsed without value for non-payment of the premium due October 1, 1967. Policy number 421697 lapsed without value for non-payment of the premium due December 1, 1967.”

Since Colonial’s answer did not specify which premiums were not paid and resulted in the lapse and forfeiture by the appellant, in order to meet the burden placed upon her to make a prima facie case, appellant testified as to her initial dealings with Davis. She stated that she and her husband met with Davis in August, 1967, with reference to fire insurance on a building owned by them and from which her husband operated a TV and appliance business. In the course of the preliminary dealings with Davis, it was agreed that he, Davis, would handle all of the Boyles’ insurance in connection with Boyle’s business, the residences owned by the Boyles, and various, motor vehicles. It was also decided that Ernest Boyle would apply for the three life insurance contracts to protect the mortgages outstanding on three properties. Mrs. Boyle testified that she handled all of this kind of business detail for both herself and her husband. She had expressed her desire to Davis that the premiums on all of the policies under his stewardship be set up so that she could make one monthly payment rather than numerous payments throughout the policy periods, and that she would not receive premium notices. Davis stated that he “could arrange financing” and this was initially done by the appellant, giving Davis a check dated August 26, 1967 in the amount of $209.30 as a down payment to cover a month’s finance payment on the various commercial policies and life insurance.

When the life insurance policies were received, two of them were set up on a monthly premium and one on a quarterly premium basis. Shortly thereafter, appellant began receiving premium notices on the life insurance, and she asked Davis the reason, since she understood that the financing was to be for all premiums and called for one monthly payment. Davis advised her that he would “take care of it” but that new forms would have to be signed. Accordingly, a new document was executed by Ernest Boyle on October 17, 1967, which was denominated “Invoice Contract” and which included annual premiums on the three Colonial Life insurance policies. On the same day this document was assigned by Davis to the City National Bank and Trust Company, and he received the proceeds therefrom. Thereafter, the Boyles received a monthly payment book from the bank and appellant made such payments to the bank totalling $1,146.73, and the “Invoice Contract” was marked “Paid” by the bank on July 12, 1968 and returned to the Boyles.

However, the appellant testified that in November or December, 1967, she began to get “lapse” notices from Colonial. Upon inquiry of Davis, he advised the appellant that the company (Colonial) probably had not gotten the papers “all straightened up yet” and that she should “Disregard it. It’s all right, Marie; don’t worry.” Upon receiving such notices again in the first part of 1968, and again making inquiry of Davis, he told appellant that “They’re still fouled up. Don’t worry about it, Marie, I have taken care of it.” He stated that he had “sent his check in” and had cancelled checks to show payment from the funds the Boyles had provided from the banking arrangement.

There is a complete absence of evidence, documentary or otherwise, that Davis did not receive the proceeds of the “Invoice Contract” from the bank to cover the annual premiums on the life insurance and other policies therein involved. The life insurance premiums were to cover the annual premiums from September 1, 1967 to September 1, 1968. Each of these policies contains the provision:

“PAYMENT OF PREMIUMS. — All premiums are payable either at the company’s home office or at any of its branch offices or to an agent of the company * * * ” (Emphasis supplied)

Thus, it is apparent that Davis had specific authority to accept premium payments on behalf of Colonial. The appellant therefore met the burden placed upon her to establish the payment of the first premium. She, therefore, made a prima facie case against Colonial, as defined in Connor v. United Insurance Co., supra, and Saunders v. Crusader Life Insurance Company, supra, and the burden was upon Colonial to prove the claimed lapse and forfeiture for nonpayment of premiums under Stout v. Independent Order of Foresters, supra; Clair v. American Bankers Insurance Co., supra, and Gennari v. Prudential Insurance Company of America, supra.

But Colonial strongly argues that the presumption that the policies were in force was not relied upon by appellant since she undertook to prove that the premiums due for the period of September 1, 1968 to September 1, 1969, had, in fact, been paid. Considering all the evidence and reasonable inferences to be drawn therefrom, this position cannot be accepted.

As above noted, the appellant in her alternative pleading of her cause of action in Count IV against Davis, basically takes the position that she and her husband had an agreement with Davis to handle all of the insurance involved and to arrange financing so that she could make one monthly payment and be relieved of all other details. She “checked the entire thing to Davis”. It was her understanding that he was to keep the policies here involved in force by this means. She testified that Davis initiated the financing arrangements for the years 1968 and 1969, and it was her understanding that such were to be the same as the 1967 arrangements.

She stated that in July, 1968, at Davis’ request, she signed a new financing form, “Invoice Contract”, in blank. She assumed that the Colonial policies were included, although there was no specific discussion of them at that time. She was fortified in this belief by reason of the fact that she never received any premium or lapse notices on the Colonial policies after September 1, 1968, and learned nothing of the position of the company that the same had lapsed until after her husband’s death in the communication of August 7, 1969, when her claims on the policies were denied. In this connection, it is of importance to again note that the basis for such declination was the failure to pay premiums due in 1967, which counsel for Colonial admitted in his opening statement had in fact been paid. Of further significance in this regard was the deposition testimony of Louis La Salle, Assistant Vice President in charge of Policy Accounting for Colonial, wherein he stated that the procedure of Colonial with reference to premiums was that first the regular premium notices are mailed to the insured. Twenty-one days after such premium is due, a reminder notice is mailed to the insured. Thirty-one days after the due date, a lapse notice is mailed to the insured, with a copy to the resident office. Between sixty and ninety days a form No. 362 and notification of lapse is sent to the resident office. Ninety days after the premium is due, a reinstatement form No. 250 RL is sent to the insured. These are the ordinary conservation procedures and the general policy of the company with reference to all policies as routine, and the three policies here involved would ordinarily be subject to the same conservation procedure. Appellant testified that the Boyles did not receive any of these communications.

Davis collected the down payment on the premiums for September, 1968 to September, 1969, in the amount of $214.60; on July 27,1968, she received a payment book from the bank and had no knowledge that the Colonial policies had not been included on the “Invoice Contract” until she received the document marked “Paid” from the bank.

Davis assured her that these Colonial premiums had been paid, and of further significance as to the alternate cause of action against Davis is the statement in the letter dated August 19, 1969, from Colonial to counsel for appellant, that the records of the company showed that the policies had lapsed as of September, 1968 because the 1968 premium had not been received, and further stating:

“Mr. Davis, the broker under these policies, wrote to us in August indicating that the premiums were financed for the year 1967 and 1968. There was no question that our insured paid the annual premium due in 1967, but Colonial Life never received payment due in 1968. We were informed that our insured had taken a loan to pay these premiums, and while we have not received the moneys, we have asked Mr. Davis to forward us a copy of the loan agreement or the check payable to Colonial. We requested this information yesterday and to date have not heard from Mr. Davis. On the basis of our records we have no alternative but to deny payment at this time. * * * ”

It should be further noted that at the time the above letter was written, Davis had made premium financing arrangements with the Boyles on July 17 and 18, 1969 for the financing of the premiums, including the three Colonial policies, for the year September 1, 1969 to September 1, 1970, and the appellant had made a payment thereon to the Commerce Trust Company at Kansas City.

The appellant stated that in the light of her transactions with Davis, and his assurances to her that the September, 1968 premiums had been paid, she “assumed” that such was the case. It is clear that this evidence was directed to Davis in support of appellant’s alternate cause of action against him. It was proof that Davis either violated his agreement with the Boyles to keep the three Colonial policies in force by the financing arrangements by not including them, or that he did in fact receive the 1968 premiums from a financing source, or paid them by other means, such as adjustment of his agent’s accounts with Colonial. It was entirely outside either appellant’s competency or obligation to establish any of these latter facts, and she did not attempt to do so and thus assume the burden sought to be imposed upon her by Colonial and lose the benefit of the presumption which arose as to her cause of action against Colonial. The case of LePage v. Metropolitan Life Insurance Company, 314 S.W.2d 735 (Mo.1958), relied upon by Colonial, is not persuasive toward any other conclusion.

Another factor worthy of note is that the pleaded defense that Davis acted outside the scope of his authority is not shown by the record. He was admittedly an agent of Colonial who took the applications for the life insurance on Colonial forms, he was specifically clothed with the authority to receive premium payments under the terms of the policies, and nothing appears that he lacked at least apparent authority to arrange financing of premiums, change the periods when the premiums would be due, transmit at least the net premiums to the company, or do any other acts necessary to maintain the policies in force, including extension of credit. In the absence of fraud on the part of the agent and the insured, the company was bound by his acts, contracts or representations which are within his real or apparent authority. When limitations upon such authority “are unknown to the other contracting party, ‘apparent authority is equal to real authority’ ”. Baker v. St. Paul Fire and Marine Insurance Company, 427 S.W.2d 281, 285-286[2, 3] (Mo.App.1968); Chailland v. MFA Mutual Insurance Company, 375 S.W.2d 78, 82[7] (Mo. banc 1964); Travelers Indemnity Company v. Beaty and Missouri State Highway Commission, 523 S.W.2d 534 (Mo.App.1975).

The able briefs of counsel suggest other complicated areas of fact and law which cannot be determined and need not be discussed here, and thus extend the already burdensome length of this opinion. The conclusion reached is that the court erred in sustaining the defendants’ motions for directed verdicts at the close of appellant’s evidence; that she made a submissi-ble case against Colonial on Counts I, II and III, and against Davis on her alternative cause of action in Count IV; and that justice can be done to the parties only by a full exposition of the relevant testimony, documents and records, and a determination of the fact issues by a jury under applicable legal principles.

Accordingly, the judgment herein is reversed and the cause remanded for a new trial.

All concur.


author: SHANGLER, Judge.

text:
    David H. SCHNABEL, Appellant, v. TAFT BROADCASTING COMPANY, INC., a corporation, et al., Respondents.
    No. KCD 27310.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.
    Rehearing Denied Aug. 5, 1975.

      Max Von Erdmannsdorff, Von Erd-mannsdorff & Kuhlman, Howard F. Sachs, Donald W. Giffin, Kansas City, for respondent David J. Madison.
    Reed 0. Gentry, Rogers, Field, Gentry, Benjamin & Robertson, Kansas City, for respondent Willard.
    John M. Kilroy, Richard W. Noble, Kansas City, for respondents Taft Broadcasting Company, Inc. and MeClay; Shughart, Thomson & Kilroy, Kansas City, of counsel.
    Howard F. Sachs, Donald W. Giffin, Kansas City, for respondents Wormington and Bolton and additional attorneys for respondents Taft Broadcasting Company, Inc. and MeClay.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   SHANGLER, Judge.

The plaintiff David H. Schnabel brought a petition for actual and punitive damages, framed in two counts, one for champerty and the other for malicious prosecution of a libel action in the courts of Kansas. The defendants moved the dismissal of both counts or for summary judgment. The trial court sustained the motion to dismiss both counts as to all defendants on the asserted ground that both counts failed to state claims for relief and that any claim based upon allegations of malicious prosecution were barred by the one year Kansas statute of limitations, K.S.A. § 60-514, given effect in Missouri by § 516.190, RSMo Supp. 1975, V.A.M.S. The defendant Taft Broadcasting Company asserted the additional ground for dismissal that the claim of plaintiff related to conduct arguably protected or prohibited by the National Labor Relations Act and was therefore pre-empted by the jurisdiction of the National Labor Relations Board.

On a motion to dismiss, the sufficiency of a petition is construed liberally and all facts properly pleaded are taken as true and are accorded every reasonable in-tendment as a valid statement of a claim. Hall v. Smith, 355 S.W.2d 52, 55[1 — 5] (Mo.1962). A petition, although imperfectly or defectively stated, will be sustained if the allegations invoke substantial principles of law which may entitle the pleader to relief. Ingalls v. Neufeld, 487 S.W.2d 52, 54[l-4] (Mo.App.1972). If it clearly appears from the face of the pleading that a cause of action is barred by limitations, a motion to dismiss, even without specification of grounds is properly sustained. Household Finance Corporation v. Avery, 476 S.W.2d 165, 168[6] (Mo.App.1972).

Count I of the petition undertakes to plead a cause. of action in champerty on these allegations:

The defendant Taft Broadcasting Company, Inc., owned and operated the WDAF radio and television stations in Kansas City, Missouri, and was a party to a collective bargaining agreement with a local of the American Federation of Television and Radio Artists [AFTRA], the bargaining agent for the professional employees of the stations. Prior to and after the October 1, 1965, termination date of the agreement, Taft Broadcasting through Robert J. Wormington and Lewis D. Bolton, managers of the stations, and John L. MeClay, Executive Vice-President, negotiated with AFTRA for a new contract. Attorney James R. Willard represented Taft Broadcasting throughout these negotiations. The bargaining proved fruitless, so that the contract was terminated and on December 12, 1965, the members of the union went on strike.

The plaintiff Schnabel was employed as the Executive Secretary of the Kansas City local of AFTRA. After commencement of the strike, members of the union undertook to picket the WDAF radio and television facilities and to engage in other activities— including publication of a newsletter — calculated to inform the public, advertisers, consumers, government officials and other unions of the nature of their dispute with the management.

The day following the commencement of the strike, WDAF hired defendant David J. Madison and two others to replace members of the AFTRA who were then on strike. In ■ the December 28, 1965 issue of the union newsletter appeared the statement:

DAVID MADISON has an interesting background. His personal life has been so fouled up, the only regular work he seems to be able to find is as a professional strike-breaker. His experience during the METROMEDIA strike apparently has been his only preparation in the broadcasting field. Watching him butcher the television news, or listening to him slaughter the King’s English as a DJ makes one wonder how any advertiser could possibly consider their money well spent with DAVE MADISON “delivering the goods”.

When he arrived at the WDAF facilities the next day, Madison was given a copy of the newsletter by the program director of the radio station. Madison was then called to the office of defendant Wormington, station manager for WDAF TV, who discussed the newsletter and any legal remedies available to Madison, and indicated that Madison could retain the labor counsel representing Taft Broadcasting in its dispute with AFTRA to file suit against plaintiff and others for the alleged defamation. The petition then alleged that, during this meeting, Wormington, on behalf of Taft Broadcasting, entered into an agreement with Madison to pay all attorneys fees and costs and expenses of litigation incurred in the suit against plaintiff and other members of AFTRA. The petition alleged that this agreement, which did not obligate Madison to reimburse Taft-Broadcasting for any of these outlays was wrongful and champer-tous.

As suggested by Wormington, Madison met with attorney Willard and, as a result of this conference, filed suit in Johnson County, against plaintiff and twenty-five others, individually and as representatives of the AFTRA class. It was alleged that defendants Willard, Wormington, Bolton and McClay conspired to enter into the champertous agreement on behalf of Taft Broadcasting which thereafter expended sums of money on behalf of Madison in support of his suit.

The petition pleaded that an objective of the conspiracy was to use the lawsuit as a means of bringing pressure to bear upon the plaintiff and AFTRA to terminate the strike. Accordingly, it was alleged that Taft Broadcasting for that purpose sought to obtain from Madison express, written control of the lawsuit, but was refused. Madison was dismissed from employment by Taft Broadcasting on March 25, 1966, and on April 18, 1966, the strike was terminated. Madison, however, continued to prosecute the action against the plaintiff and AFTRA until he voluntarily dismissed the action with prejudice on April 18, 1969.

The petition alleged benefit to Taft Broadcasting from the champertous agreement and maintenance of the Madison action by allowing that conspirator the use of the lawsuit to coerce AFTRA to terminate the strike; that defendants Wormington, Bolton and McClay derived benefit through their employment with Taft Broadcasting; that attorney Willard received fees and compensation from the action, and that Madison derived the benefit of a cause of action without risk of expense or loss.

The plaintiff alleged damage from the wrongful acts of the defendants in that the strain of his efforts as Executive Secretary of AFTRA in the defense of the action caused a seizure and physical injury to his person, and alleged the further damage of lost employment because the defense of the lawsuit had depleted the AFTRA funds.

Count II of the petition by reference incorporates the allegations of Count I and further alleges that the defendants, acting through Madison, maliciously conspired to and did file the defamation action against plaintiff with intent to injure him and without cause. The pleading also alleges that the defendants actively encouraged and supported the bringing of the action with the purpose of coercing plaintiff and AF-TRA to end the strike; that the action was brought maliciously and without probable cause because the statements made in the newsletter concerning Madison were in fact true and made with a qualified privilege since they were directed at Madison as a public figure. The petition cited the voluntary dismissal of the action by Madison as a termination of the proceedings in favor of the plaintiff.

The validity of Count I as a pleading is to be determined by whether the allegations invoke substantial principles of the law of champerty as to entitle plaintiff to relief.

The doctrines of champerty and maintenance were developed at the common law to “prevent officious intermeddlers from stirring up strife and contention by vexatious and speculative litigation which would disturb the peace of society, lead to corrupt practices, and prevent the remedial process of the law”. 14 C.J.S. Champerty and Maintenance § 3; Curry v. Dahlberg, 341 Mo. 897, 110 S.W.2d 742, 748[9-11], 112 S.W.2d 345 (banc 1937). Maintenance is defined as “an officious intermeddling in a suit which in no way belongs to one, by maintaining or assisting either party, with money or otherwise, to prosecute or defend it”. Moffett v. Commerce Trust Company, 283 S.W.2d 591, 596[3, 4] (Mo.1955). Cham-perty, a species of maintenance, consists of an agreement under which a person who has no interest in the suit of another undertakes to maintain or support it at his own expense in exchange for part of the litigated matter in the event of a successful conclusion of the cause. Watkins v. Floyd, 492 S.W.2d 865, 871[3] (Mo.App.1973). As delineated, the law of champerty and maintenance is in force in Missouri [Curry v. Dahlberg, supra, 341 Mo. l. c. 748, 110 S.W.2d 742], and in Kansas as well. Boettcher v. Criscione, 180 Kan. 39, 299 P.2d 806, 811[5] (1956).

The respondents do not cavil at these general principles but contend, on the authority of Security Underground Storage, Inc. v. Anderson, 347 F.2d 964 (10th Cir. 1965), that an action for damages for either maintenance or champerty no longer exists in favor of a third person not a party to the unlawful agreement. In Security, an action brought by attorneys to recover for services rendered, the defendant counterclaimed for damages on allegations that one attorney had maliciously instigated and promoted the filing of a lawsuit against the defendant by a third party and had advanced substantial funds for that purpose. The court, citing Boettcher, and other Kansas decisions, held that such an action could not be maintained [l. c. 969]:

It is generally accepted that a cause of action for damages arising out of the common-law doctrine of champerty and maintenance as it was then known, is not now recognized. . . . The decisional law of today dealing with the subject usually involves the validity of contracts asserted to be violations of the doctrine. This does not mean, however, that there is no existing remedy for such conduct under modern law. As an outgrowth of the ancient rule the existing remedies are through tort actions such as malicious prosecution, abuse of process, and wrongful initiation of litigation.

The appellant contends, however, that a separate cause of action for damages, as known at common law, subsists in the courts of Missouri, and as support cites Breeden v. Frankfort Marine Accident & Plate Glass Ins. Co., 220 Mo. 327, 119 S.W. 576 (banc 1909). In that case, an action for damages on allegations of maintenance was brought against a liability insurer by a party who had recovered judgment earlier against the insured. The plaintiff alleged that the insurer, which had defended the insured under the policy, was guilty of maintenance for interjection into a lawsuit in which it had no legitimate interest. The principal opinion [Woodson, J., 1. c. 589-591] held that liability insurance was void as against public policy, that the insurer therefore had no interest in the defense, and was only an officious intermeddler within the doctrine of maintenance. That opinion held, further, that the common law remedy of damages resulting from maintenance was available in our courts. A settlement which the plaintiff hád concluded with the insurer, however, was held to be a complete bar to his recovery.

Fiye of the participating judges, however, concurred only in the result reached while joining in an opinion by Judge Lamm [1. c. 608-610] which took issue with the pronouncements of the principal opinion. In that concurrence, a majority joined in the opinion that liability insurance was not void as against public policy and that the insurer therefore had an interest under its policy in defending the lawsuit. And most pertinently to the issues here, observed [1. c. 606]:

[T]hat doctrine, as announced anciently, goes now with a grain of salt; for it must be understood that the rigors of the rules of the very old common law in that regard have been tempered and mellowed in modern times. The modern doctrine takes out of the rule against maintenance those who interfere in litigation in which they have, or honestly believe they have, an interest.

No case since, either in Missouri or Kansas, has passed upon the right to bring an action for damages resulting from champerty or maintenance. That is because, as a rule, the doctrines and their principles have been laid down in judgments upon defenses to actions in which a defendant has sought to be delivered from the obligation of a contract affected with the illegality of cham-perty or maintenance. Breeden v. Frankfort Marine Accident & Plate Glass Ins. Co., supra, 1. c. 596; Kelerher v. Henderson, 203 Mo. 498, 101 S.W. 1083, 1087 (banc 1907).

Although the common law action of maintenance or champerty, eo nomine, is rare in modern times, such conduct now finds remedy in abuse of process, wrongful initiation of litigation and malicious prosecution actions. Security Underground Storage, Inc. v. Anderson, supra, 1. c. 969; Restatement of Torts, § 674, Wrongful Initiation of Civil Proceedings. Our conclusion that Count I fails to state a cause of action assumes for the purpose of that determination, however, that the ancient remedy for damages subsists.

The appellant assumes throughout that the propriety of Count I as a pleading for damages in champerty is controlled by the state in which the contract was formed [Missouri], while respondents contend that the law of the state where the champertous suits were to be brought [Kansas] governs the question. Whether under the traditional rule of conflicts, espoused by appellant, which applies the law of the state where the champertous suit was brought [Roller v. Murray, 107 Va. 527, 59 S.E. 421, 427[8] (1907)], or the center of gravity theory which applies the law of that state which has the most significant relationships with the proscribed conduct [Gonzalez y Barredo v. Schenck, 287 F.Supp. 505, 526[8] (S.D.N. Y.1968), rev’d on other grounds, 428 F.2d 971 (2d Cir. 1970)], on this pleading, the law of Kansas determines whether a claim for relief was stated. These contentions, in any event, are without efficacy because the courts of both jurisdictions recognize the constitutive elements of champerty as (1) an agreement by one with no interest in a suit of another (2) to support or maintain the litigation at his own expense (3) in exchange for a part of the litigated matter in the event of a successful conclusion of the cause. Watkins v. Floyd, 492 S.W.2d 865, 871[3] (Mo.App.1973); Boettcher v. Criscione, 180 Kan. 39, 299 P.2d 806, 811[5] (1956).

Count I fails against the defendant Willard because, even if the pleading can be understood to allege a contingent fee contract, there is no allegation that attorney Willard undertook to pay or protect the client from payment of the costs and expenses of litigation, an essential element of champerty properly pleaded. Mytton v. Missouri Pac. R. Co., 211 S.W. 111, 113[4, 5] (Mo.App.1919); Boettcher v. Criscione, supra, l. c. 811[6].

Count I fails against the defendant Madison because the doctrine of champerty embraces only strangers to the action, not a party. 14 C.J.S. Champerty and Maintenance § 1.

Count I fails against the remaining defendants, Taft Broadcasting, McClay, Wormington and Bolton because the pleading lacks the essential allegation that these defendants were to share in the subject matter of the suit, if successful. The appellant concedes that these defendants did not anticipate the benefit of any recovery, but contends that the pleading requirement of champerty is met by allegations that the benefit of Taft Broadcasting was the termination of the strike and the benefit to McClay, Wormington and Bolton was the expectation of employment perquisites. That argument is a blandishment to enlarge the scope of champerty, a concept which, rather, has been narrowed, tempered and mellowed in modern times. The doctrine as now practiced takes out of the rule those who interfere in litigation in which they have, or honestly believe they have, an interest. Breeden v. Frankfort Marine Accident & Plate Glass Ins. Co., supra, 1. c. 606. The matter of the termination of the strike was a matter of obvious vital economic interest to these defendants. The contract as pleaded between them and Madison was not for sordid gain or speculation, but a statement of legitimate and lawful interest. See, Curry v. Dahlberg, 341 Mo. 897, 110 S.W.2d 742, 748[9-11] (banc 1937); Boettcher v. Criscione, supra, l. c. 811[3, 4].

Count II of the petition alleges that Madison, at the behest of the other defendants, and without probable cause to believe the action was proper, but with malicious intent to injure, brought a libel action against the plaintiff in the courts of Kansas, that the action was terminated by voluntary dismissal, and that plaintiff suffered damages as a result.

The respondents concede that Count II states a valid claim for malicious prosecution but contend, nevertheless, that the action is barred by the one year limitation period of K.S.A. § 60-514 given effect to the litigation by the provisions of the Missouri borrowing statute, § 516.190, RSMo Supp. 1975:

Whenever a cause of action has been fully barred by the laws of the state, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this state.

The appellant asserts that choice of law principles apply to determine where the action for malicious prosecution originated for the purposes of the application of § 516.190, while the respondents contend that a choice of law question is not presented, but that a cause of action originates where it accrues.

The effect of the Missouri borrowing statute is to impose an additional limitation on the right to sue so that if the cause of action is barred by the laws of the state in which it originated, the suitor may not maintain the action in the courts of Missouri. Farthing v. Sams, 296 Mo. 442, 247 S.W. 111, 112 (1922). Within the context of the statute, originated has been accorded the meaning accrued. Christiner v. Chicago, R. I. & P. Ry. Co., 228 Mo.App. 220, 64 S.W .2d 752, 754[1 — 4] (1933); Frizzell Grain & Supply Co. v. Atchison T. & S. F. Ry. Co., 201 S.W. 78, 80[3] (Mo.1918); Alropa Corporation v. Smith, 240 Mo.App. 376, 199 S.W.2d 866, 869[3, 4] (1947).

The appellant asserts alternatively either under the traditional lex loci delicti or most significant contacts choice of law principles, the substantive cause of action for malicious prosecution originated in Missouri and therefore the borrowing statute does not govern. We do not delineate the contending arguments because in both Missouri and Kansas a cause of action for malicious prosecution accrues when the litigation complained of is terminated in favor of the defendant. Euge v. Lemay Bank & Trust Company, 386 S.W .2d 398, 399[4-6] (Mo. 1965); Harper v. Cox, 113 Kan. 357, 214 P. 775, 776[2] (1923). Accordingly, the cause of action for malicious prosecution accrued on April 18, 1969, when Madison dismissed his suit in the courts of Kansas, and, consequently, the action originated in Kansas. No conflict of law question remains, and the effect of § 516.190 is to adopt as our own the provisions of the foreign statute of limitations. Bowling v. S. S. Kresge Company, 431 S.W.2d 191, 193[1] (Mo.1968); Gates v. Trans World Airlines, 493 S.W.2d 668, 670 (Mo.App.1973). Under the one year limitation of K.S.A. § 60-514, borrowed by § 516.190, therefore, Count II of the petition filed on April 14, 1971, was not timely brought.

The dismissal was proper as to both counts. We do not reach the additional grounds for judgment asserted by the respondents.

The judgment is affirmed.

All concur.

      . Reference to champerty and maintenance is completely lacking in the works of such pre-eminent didacts on torts as Prosser [Torts, 4th Ed. 1971]; Harper & James [Law of Torts, 1956]; Cooley [Torts, 4th Ed. 1932] and Morris [Torts, 1953].


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Tyrone Lee WALKER, Appellant.
    No. 35874.
    Missouri Court of Appeals, St. Louis District, Division Four.
    July 8, 1975.

      Bell, Wilson, Harris & Kirksey, by James A. Bell, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Tyrone Lee Walker, charged with murder in the first degree, was found guilty by a jury of murder in the second degree and sentenced to the custody .of the Missouri Department of Corrections for a term of eighteen years.

Appellant does not challenge the sufficiency of the evidence. We need only relate that from the evidence a jury reasonably could find that on September 9, 1971, appellant shot and killed Sylvester Nelson. We affirm.

Appellant first contends that the trial court erred in failing to instruct the jury on the issue of self-defense.

The only witness for the State who testified concerning the shooting was Eddie Roberts. He stated that appellant got out of an automobile and called to Sylvester Nelson to “come here.” When they met at about the middle of the street “Tyrone put his arms on Sylvester some kind of way like he was hugging him or something, and then he had a pistol in his right back there, and he pulled it out he did him like that (indicating), you know, and shot him twice, and told him, T don’t play.’ ”

Appellant relies on the testimony of Mo-nir Aziz, the only defense witness. He testified that appellant had picked him up in his automobile, and that they parked on Ewing near its intersection with Park Street when Sylvester Nelson and a “couple of more fellows” drove up. “Sylvester got out of the car and hollered over something at Tyrone. He was walking toward the car where we was sitting with his hand in his pocket, and when he got over there he grabbed the car and opened the door. He grabbed Tyrone around the neck and they got out and Tyrone, you know — he fell out of the car, and they was wrestling and, you know, when they was wrestling some shots went off.” Aziz further testified that he never, saw a gun or knife, that while they were wrestling they were “sort on the side of each other,” that neither said a word, and that “both of Tyrone’s hands were around Sylvester.”

The trial court instructed the jury on excusable homicide by reason of an accident. We note that although appellant objected to that instruction, without giving any reason therefor, he made no assignment in his motion for new trial pertaining to the instruction, and he does not assert on this appeal that the giving of the instruction was error.

The defenses of self-defense and accident are inconsistent, and the “defendant alone may not provide the basis for submitting such inconsistent defenses to the jury.” State v. Randolph, 496 S.W.2d 257 (Mo. banc 1973). If the shots were fired in self-defense, the firing resulted from the voluntary act of appellant; if the shots were accidental the act was involuntary. State v. Peal, 463 S.W.2d 840 (Mo.1971). Under certain limited circumstances a defendant may be entitled to both submissions. “For example, if a defendant by his own testimony provides the basis for an accident instruction, it must be given; but if to the contrary, testimony of others shows defendant acted in self-defense, he also is entitled to a self-defense instruction.” State v. Peal, supra.

As noted, there were only two witnesses who testified to the circumstances of the shooting. According to State’s witness Eddie Roberts, appellant took a pistol from his pocket and intentionally shot Sylvester Nelson. There is nothing in the testimony of this witness that the intentional shooting was a defensive act. Instead, it shows only that appellant was the aggressor. This testimony did not justify the giving of an instruction on self-defense or on accident. Therefore, if appellant was entitled to either instruction it had to have support in the testimony of Monir Aziz, and under the circumstances he was not entitled to both.

We are of the opinion that no error resulted from the court’s refusal to instruct on self-defense. That defense constitutes a claim that the shooting was an intentional act made necessary by a reasonable apprehension of a design or intent on the part of the deceased to do the defendant great bodily harm. State v. Sherrill, 496 S.W.2d 321 (Mo.App.1973). ' There is nothing in the testimony of Aziz that indicates an intentional shooting by appellant. Instead, he testified that while appellant and Nelson were wrestling some shots went off, and that he did not see who had the pistol. Also, there is nothing in the testimony of Aziz to show that the shooting was made necessary by a reasonable apprehension of a design on the part of Nelson to do great bodily harm to appellant. In State v. Parker, 403 S.W.2d 623 (Mo.1966), it was stated that “ ‘The right to kill in self-defense is founded in necessity, real or apparent,’ * * * and before such extreme measure may be lawfully resorted to the record must show that the appellant acted ‘under at least an apparent necessity, in order to save himself from death or great bodily harm.’ * * * Under the general rules and the statute reasonable cause and necessity are to be viewed in the light of circumstances as they appeared to the defendant. * * * But there must have been some act or demonstration on the part of the deceased inducing a reasonable belief that the defendant is about to suffer great bodily harm, * * * some overt act of presenting or drawing.” The testimony of Aziz does not indicate that appellant could reasonably anticipate any more than a simple assault and battery, which is not sufficient to warrant killing in self-defense. State v. Jackson, 511 S.W.2d 771, 777 (Mo.1974); State v. Brown, 502 S.W.2d 295 (Mo.1973). There is no merit to appellant’s first contention.

Appellant next challenges the instruction submitting murder in the second degree, and asserts that it “did not define malice aforethought and deliberately,” and it did not “lay proper guide lines for the jury to be able to understand the charge.”

First, deliberation is not an element of second degree murder, and the term was not used in the instruction. Second, appellant does not set forth what “guide lines” are missing. Third, the instruction followed the substance and form of the instruction in MAI-Cr on second degree murder, although the use of MAI-Cr was not mandatory at the time of trial. An instruction, in all relevant parts identical to the one given in this case, was approved in State v. Jackson, 496 S.W.2d 1 (Mo. banc 1973). For these reasons the appellant has not demonstrated that the instruction was prejudicially erroneous.

Appellant next asserts that the trial court “unreasonably limited defendant in the cross-examination of Dr. Watson W. Kaminsky, the coroner’s physician, when he asked a hypothetical question of the doctor concerning the cause of death.”

The doctor described the wounds of the body of Sylvester Nelson, and testified that as the result of an autopsy performed by him he was of the opinion that death was “due to hemorrhage, secondary gunshot wound of the thigh and the lower abdomen with laceration of the right common femoral artery.”

On cross-examination the doctor again described the wounds, and the court then sustained an objection to this question: “Doctor, assuming that if two men were struggling over a pistol face to face and that the gun was discharged during the struggle, would it be possible that these two wounds could come about as a result of that?”

At the time the question was asked there had been no testimony that appellant and Sylvester Nelson were struggling over a pistol. Appellant now asserts that this hypothetical question “was propounded solely for the purpose of laying a foundation for the testimony of Monir Aziz and enhancing the credibility of his testimony.”

As stated in Schears v. Missouri Pacific Railroad Company, 355 S.W.2d 314, 321 (Mo. banc 1962), “As an exception to the general rule that a witness may not express an opinion, an expert witness may do so when qualified as such and when the subject matter is not of such common knowledge to invade the province of the jury. * * * However, the expert witness must base his opinion on facts established by competent evidence. * * *. When the expert witness does not have personal knowledge of those facts he must be asked, by use of the hypothetical question, to assume the truth of those facts, particularly when disputed.” (Italics added). In this case there was no testimony in the record that appellant and Sylvester Nelson were struggling over a pistol. It is true that appellant’s counsel stated to the court that “This is going to be our testimony,” but we note that Monir Aziz, the only defense witness, did not subsequently so testify. In fact he affirmatively stated that he did not see a pistol in the possession of either person. We further note that this prophesy of defense counsel as to what the evidence would consist is inconsistent with the theory now advanced that the court should have instructed on self-defense. Aside from the doubt we have that the doctor was qualified as an expert to answer the question asked, and the doubt we have that the question would not invade the province of the jury, the hypothetical question when asked had no factual basis in the evidence, and that deficiency was not cured by subsequent evidence, assuming that a cure could be had in that manner. The court properly sustained the objection to the question.

The final contention of appellant is that it was error for the trial court to excuse members of the jury panel for the reason that “the jurors stated they would not give the death penalty.” The questions asked were within the range approved in State v. Pollard, 447 S.W.2d 249 (Mo.1969), and in addition, appellant was not found guilty of an offense for which the death penalty could have been imposed. Therefore, the rule announced in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) is not applicable. See Bumper v. State of North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), and State v. Crow, 486 S.W.2d 248 (Mo.1972); State v. Haynes, 482 S.W.2d 444 (Mo.1972); and State v. Davis, 504 S.W.2d 221 (Mo.App.1973).

The judgment is affirmed.

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


author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri, Respondent, v. Ricky JONES, Appellant.
    No. 36444.
    Missouri Court of Appeals, St. Louis District, Division Four.
    July 8, 1975.
    Charles D. Kitchin, Public Defender, James C. Jones, Joseph W. Warzycki, Asst. Public Defenders, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Clarence Thomas, Asst. Attys. Gen., Jefferson City, for respondent.
   NORWIN D. HOUSER, Special Judge.

Ricky Jones, convicted by a jury of striking a police officer in the performance of duties imposed upon Mm by law, § 557.215, RSMo 1969, Y.A.M.S., and committed to the department of corrections for a period of four years, has appealed.

Appellant claims prejudice because the State was allowed to endorse on the information the name of George Millsap, Chief Supervisor of the City Jail, as a witness. Appellant complains that he was given no prior notice that Millsap would testify; was allowed no additional time to prepare to meet Millsap’s testimony, and that Millsap’s testimony went beyond the limited scope stated by the circuit attorney. After the jury was selected and sworn the assistant circuit attorney stated to the court that Millsap would testify that he obtained a court order to have “the men’1 (appellant and six other prisoners) removed from the jail (to the police holdover at another address); that Millsap asked the men to go with the sheriff, and when they refused the police were called to take them over; that Millsap would not be a material witness as an eyewitness to the incident. Over objection on the ground that the name of the witness was not endorsed on the information the State was permitted to so endorse and to call Millsap as a witness. He testified that on the day in question he was acting warden, responsible for running the city jail and prisoners; that appellant was a prisoner; and that he obtained a court order from a circuit judge for the purpose of removing appellant and six other prisoners from the jail to the holdover at 12th Street and Clark Avenue. He identified a certified copy of the court order as a fair and accurate copy of the original order authorizing transportation of the seven prisoners to the custody and control of the metropolitan police department. He testified that he advised the prisoners they would be sent over to police headquarters; that the sheriff was supposed to take them over but when the sheriff came the men refused to “come out”; and that the police department was then notified. Appellant did not move to quash the information; claim surprise or prejudice; move for a continuance on the ground of surprise or ask for additional time to prepare to meet the testimony. The only action appellant took was to make the flat objection that Millsap’s name was not endorsed on the information. Under these circumstances appellant waived his right to complain of the testimony given by Millsap. State v. Ferguson, 183 S.W. 336 (Mo.1916); State v. Howerton, 228 S.W. 745 (Mo.1921); State v. Hewitt, 259 S.W. 773 (Mo.1924); State v. Glenn, 262 S.W. 1030 (Mo.1924); State v. Broyles, 317 Mo. 284, 295 S.W. 550 (1927); State v. Broyles, 317 Mo. 276, 295 S.W. 554 (1927); State v. Baker, 318 Mo. 542, 300 S.W. 699 (1927); State v. Wilson, 321 Mo. 564, 12 S.W.2d 445 (1928); State v. Cross, 357 S.W .2d 125 (Mo. 1962); State v. Webb, 432 S.W.2d 218 (Mo.1968). Furthermore, Millsap’s testimony did not go to the commission of the crime charged against appellant. It related in the main to the facts surrounding the obtaining of authority for the law enforcement officers to remove the prisoners from the jail and was generally within the scope of the testimony outlined by the assistant circuit attorney when he made the request to endorse. In this situation we find no prejudice to appellant’s rights.

Appellant complains that the court gave an improper additional instruction during the deliberations of the jury. Section 557.215, RSMo 1969, V.A.M.S., provides punishment for any person who wilfully strikes any police officer while engaged in the performance of duties imposed on him by law. The information charged that appellant wilfully and feloniously did wound by striking the arm of Patrolman Martin Heischmidt, a policeman, at the time actively engaged in the performance of duties imposed upon him by law. Instruction No. 4 authorized the jury to convict appellant of striking a police officer upon a finding that appellant wilfully and feloniously struck Patrolman Martin Heischmidt on the arm with a pipe and that at the time Patrolman Heischmidt was a police officer engaged in the performance of duties imposed on him by law. During their deliberations the foreman of the jury sent the judge a note saying, “I would like to know specifically just what the charge is against Ricky Jones, one, striking a police officer, or, two, striking Patrolman Martin Heischmidt.” The court sent back this answer: “The charge is striking a police officer in the performance of duties imposed on him by law.”

Citing State v. Fennewald, 339 S.W.2d 769 (Mo.1960), appellant points out that the evidence disclosed a melee between fifteen police officers armed with nightsticks and protected by riot helmets and seven prisoners in a narrow catwalk corridor in the jail; that it was a confusing situation with many blows exchanged, resulting in the need for medical attention to the majority of the participants; that under these unique facts by giving the additional instruction appellant’s substantial rights were prejudiced, the jurors were confused and misled in their deliberations; that the additional charge in effect changed the specific charge from striking Patrolman Heischmidt to a charge, of striking any one of the fifteen police officers; that the change in the identity of the victim directly affected appellant’s ability to meet the charge against him.

If in general language the jury had found appellant guilty simply of striking a police officer while engaged in the performance of duties imposed on him by law, without specific reference to Patrolman Heischmidt, a substantial argument might be made that appellant was thereby prejudiced. The jury did not make such a general finding. Instead, the jury found appellant “guilty of striking a Police Officer as submitted in Instruction No. 4.” (Our emphasis.) Instruction No. 4 named Patrolman Hei-schmidt as the victim of the striking. His name appears three times in Instruction No. 4. The wording of the jury verdict clearly shows that the jury was not confused by the additional instruction; that the jury understood the specific charge against appellant and made a specific finding that appellant was guilty of striking this particular officer, and when the jurors were polled, each juror acknowledged the verdict as his own.

Finally, appellant asserts error in the court’s refusal to admit evidence that after the melee in the corridor was over the seven prisoners were required to crawl through the corridor on their hands and knees while officers rained blows upon them. Appellant complains that the State introduced evidence (to which appellant did not object) concerning events subsequent to the striking of Patrolman Heischmidt, after the prisoners were subdued and the melee had subsided, and as to the removal of the prisoners from the catwalk; that the State thereby opened up the subject, but appellant was prevented by the court’s ruling from presenting evidence regarding these same events so appellant had no way of controverting the State’s version of these facts and was handicapped in trying to show that Patrolman Heischmidt was not struck by appellant; that the State should not have been allowed to introduce such testimony and the defendant then prevented from responding in kind. This complaint is appealing but upon analysis of the State’s evidence to which appellant points it is clear that he was not prejudiced by the court’s ruling. The State’s evidence with reference to removal of the prisoners from the catwalk, after the melee subsided, does not relate to the manner in which the policemen treated the prisoners as they emerged. That evidence showed that: the prisoners were eventually “removed” and “taken” to the holdover; several policemen were treated at the hospital (one for a fractured hand; another for a fractured arm) after the prisoners were removed; it took five minutes or less to get the prisoners out of the corridor; all of the prisoners removed from the corridor were taken to the hospital for examination; some of them had minor injuries, and there is a departmental order that whenever violence is used in an altercation between an officer and an arrested subject the latter shall be taken to a hospital and checked. None of the State’s evidence of subsequent events relates to the complaint appellant makes. None of it was of such a nature that contradictory evidence would have assisted appellant in the presentation of an effective defense. Appellant was not restricted but was given every opportunity to present and thoroughly develop his defense. His witness Dexter Davis testified that the prisoners were not armed; the police unit entered the catwalk swinging their nightsticks; in the confusion police officers were hitting each other as well as striking the prisoners; he observed one officer strike another on the arm, and he did not see appellant hitting any police officer. Appellant testified to these same facts and that he was struck by police officers numerous times; he did not hit Patrolman Heischmidt and did not observe Patrolman Heischmidt being struck; both he and Davis required medical attention after they were removed from the catwalk, and all the prisoners were bloody when they were removed. Post-factum evidence -of alleged police brutality would have been wholly irrelevant and immaterial to the issues tried.

No error appearing the judgment is affirmed.

SMITH, C. J., and STOCKARD, Special Judge, concur.


author: GUNN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James THOMAS, Defendant-Appellant.
    No. 36522.
    Missouri Court of Appeals, St. Louis District, Division Three.
    July 8, 1975.

      Kent Fanning, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Mark A. Brown, Asst. Circuit Atty., Charles B. Blackmar, Spec. Asst. Atty. Gen., St. Louis, for- plaintiff-respondent.
   GUNN, Judge.

Defendant-appellant was convicted of first degree robbery by means of a dangerous and deadly weapon and was sentenced pursuant to the Second Offender Act to a term of 10 years. In appealing from his conviction the defendant raises two related points. In his first point, defendant claims that the trial court erred in overruling his motion for judgment of acquittal on the ground that the State had failed to prove all the requisite elements of robbery in the first degree. In his second point defendant contends that the evidence only established attempted robbery in the first degree and thus the trial court erred in refusing to submit an attempted robbery instruction to the jury. We find that the State did prove all the elements of robbery in the first degree and affirm the judgment.

The facts are not in dispute. On February 1, 1974 Angelia Gordon was grocery shopping in the Big B Supermarket after having cashed a check for his purchases.

Defendant approached Mr. Gordon in the store and told him that some youths were tampering with Gordon’s car which was parked in the store parking lot. Defendant accompanied Mr. Gordon to his car and as Mr. Gordon was attempting to start it to determine if it had been damaged, the defendant displayed a gun and demanded money. Mr. Gordon initially gave defendant $4, which defendant took, but he also demanded more, threatening: “That’s not all the money. I saw when you cashed that check old man. I’ll blow your brains out and splatter them all over the car.” Defendant’s threats were successful, and Mr. Gordon produced another $19 with pleas to the defendant’s inner spirit of righteousness that the money be returned. Mr. Gordon’s supplications bore fruit, for defendant returned the $19 by placing the money on the car seat. However, before anything could be done about returning the $4 initially taken, police arrived, and defendant was arrested.

At trial Mr. Gordon testified that the defendant did not give back the $4; that throughout most of the conversation in the car, the defendant had his gun pointed at the victim. Once arrested, the defendant was searched, but none of the stolen money was found on his person. The arresting officer did find money on the seat and on the floor of the car.

“[T]he essence of the offense (robbery in the first degree) is the taking by putting in fear.” State v. Johnson, 457 S.W.2d 762, 765 (Mo.1972). There is no question that the State sufficiently established the element of “putting in fear.” The defendant does claim, however, that the State failed to prove a sufficient “taking” as required by § 560.120 RSMo 1969, V.A.M.S., and thus the trial court should have granted the defendant’s motion for a judgment of acquittal. The question for this court to decide is whether the State’s evidence established that the defendant “took” Mr. Gordon’s money. In State v. Murray, 280 S.W.2d 809 (Mo.1955), the court stated that “if one in the course of a robbery or larceny (and with the other elements present) gains control of the property even for an instant, the crime is complete.” Id., at 812 (original emphasis). In that case the defendant held up a drug store and placed stolen narcotics and money in his pockets. Before he was able to leave the store, the police entered and arrested him. The defendant claimed that the robbery was not completed because he had not sufficiently taken possession and carried away the victims’ property. The court rejected this contention and stated: “It is our firm conviction that the evidence here made out a case of completed robbery or nothing. . When defendant got possession of the money and narcotics under the circumstances outlined and put them in his pockets, the crime of robbery was complete.” Id., at 812 (original emphasis). In the case before us the defendant asserts that by returning the $19 almost immediately and by expressing the intent to return the additional $4, he did not have possession of the property long enough to constitute a “taking.” Since the defendant did not in fact return the $4, we do not have to decide whether or not a sufficient taking occurred as to the $19 which the defendant did return to the victim. Although the amended information charged the defendant with taking and carrying away $28, proof that the defendant took at least $4 was sufficient to make a case of first degree robbery. The amount of value is immaterial if it appears that property was taken and it had some value. State v. Phillips, 511 S.W.2d 841 (Mo.1974); State v. Shepard, 494 S.W.2d 53, 54 (Mo.1973); State v. Fox, 521 S.W.2d 507 (Mo.App.1975). In this case the State has shown that the defendant did take at least $4 from Mr. Gordon at gunpoint, and under State v. Murray, supra, this constituted a sufficient “taking.” The trial court therefore properly overruled the defendant’s motion for judgment of acquittal.

The second point raised by the defendant is essentially answered in our discussion of his first issue. The defendant contends that the evidence demonstrates that he had not completed the offense and that the ease should have been submitted to the jury on the theory of attempted robbery in the first degree. As stated above, the facts demonstrate that the offense charged was completely performed. In State v. Murray, supra, the defendant also claimed that the trial court erred in failing to give an “attempt” instruction to the jury. In rejecting the defendant’s contention and in finding that the robbery had been completed, the court said: “The completed crime is wholly inconsistent with an attempt.” 280 S.W.2d at 812. In this case, the State produced evidence of all the elements of a completed robbery in the first degree, and the defendant was not entitled to an “attempt” instruction.

The judgment is affirmed.

SIMEONE, P. J., and McMILLIAN, J., concur.

      . § 560.120 RSMo 1969, V.A.M.S.

      . § 556.280 RSMo 1969, V.A.M.S.

      . The relevant portion of § 560.120 RSMo 1969 reads as follows:
      “Every person who shall be convicted of feloniously taking the property of another from his person, or in his presence, and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person . . . shall be adjudged guilty of robbery in the first degree.”