author: DIXON, Judge.

text:
    Ernest Horton BOLIN, Carl G. Bolin, Sven Amos Bolin and Stanley L. Morris, Plaintiffs-Respondenfs, v. Chester ANDERS, Defendant-Appellant, Westport Bank and Edward L. Fitzgerald, Administrator Pendente Lite of the Estate of Carl A. Olson, Respondents.
    No. KCD 28681.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.
    Motion for Rehearing Denied Dec. 5, 1977.

      Richard A. Rubins, Dennis S. Schwartz, Joseph A. Cambiano, Rubins, Ease & Ru-bins, Inc., Kansas City, for defendant-appellant.
    Thomas J. Conway, Stephen G. Scholl, Thomas J. McKernan, Popham, Popham, Conway, Sweeny & Fremont, David L. West, Blackwell Sanders Matheny Weary & Lombardi, Edward L. FitzGerald, Downey, Sullivan & FitzGerald, Kansas City, for plaintiffs-respondents.
    Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.
   DIXON, Judge.

Defendant appeals from a judgment for plaintiffs in a four-count petition in equity framed on the theory that defendant had obtained title to real estate by unduly influencing a grantor in the execution of nine deeds. Count III was dismissed without prejudice. The remaining counts were: Count I, which requested the setting aside of the deeds in question, an injunction against conveying or transferring the property, and for reasonable value of rentals received by the defendant. Count II, in the alternative, requested judgment for the reasonable value of any of the real estate conveyed prior to suit. Count IV requested appointment of a receiver and attorney fees against the defendant.

On Count I, the trial court ordered eight of the nine deeds in question set aside and enjoined the defendant. Judgment for $9,450 for the reasonable value of rentals was entered. On Count II, the court gave a judgment for $14,000 for the value of the ninth parcel of land which had been conveyed prior to suit. On Count IV, the court appointed a receiver and entered judgment against the defendant for attorney fees in the amount of $16,112.51.

The variety of claims of error of the appellant may be categorized under four general headings: first, defect in parties plaintiff and improper joinder; second, a claim that evidence did not support the findings of the court; third, that the court erred in the application of the Dead Man’s Statute as to certain evidence offered by the defendant; and, fourth, that the trial court judgment is in error in allowing plaintiff to recover attorney fees and in dismissing without prejudice plaintiffs’ claim for punitive damages.

Because of the complexity of the issues raised as to the joinder and nonjoinder of parties and the unusual nature of the join-der of those not parties in the original proceeding, it will be helpful to set forth the relationships of the parties and the general background of the dispute.

Carl Olson, a single person who never married, is the grantor of the deeds in question. In the early 1930’s Carl Olson emigrated from Sweden to the United States. He lived with his sister, Tekla Bo-lin, her husband, and their four children. The four children, Horton Bolin, Carl Bolin, Amos Bolin, and Helen Carver, through her guardian, are the plaintiffs in this suit.

Tekla’s son, Amos, has no children and suffers from mental problems resulting from injuries sustained during World War II. Carl and his wife, Pearl Bolin, have no children. Horton Bolin has a son and a daughter. Helen has a daughter, Christie Tatum. In 1970, Helen was declared mentally incompetent and the Jackson County Public Administrator serves as her guardian.

In 1966, Olson and Tekla executed identical wills, each providing a residuary testamentary trust with income payable to the survivor for life and granting the survivor the right to invade 5% of the principal each year. At the death of the survivor, the trustee is to create one separate share for each of Tekla’s children who receive only trust income of their respective share for life. Upon the death of each child of Tekla, the respective share of the trust estate is distributed outright to that child’s descendants, or if none, to the descendants of Tekla Bolin. The trustee named in the wills as originally written was the Westport Bank.

Olson was a tinsmith or sheet metal worker by trade. He first met Chet An-ders, the defendant, in the 1930’s when An-ders, as a young man, went to work for Olson. Eventually, Olson turned over the management of the sheet metal business to Anders. After World War II, Anders and Olson operated a bakery business, a tire supply company, and owned jointly some Kansas real estate not involved in this litigation.

In December, 1970, Olson suffered a stroke and, while a patient in the hospital on January 14, 1971, executed a general power of attorney to Anders. This power was prepared by an attorney named Rankin, as were all the deeds in question. The deeds are all dated in 1972 and 1973. On January 27, 1971, Rankin prepared a codicil to the Olson will. That codicil names Chester Anders as executor and trustee and Rankin as attorney for the estate. There were five or six witnesses to the codicil, but it has never been proved up in the Probate Court. The codicil reaffirms the balance of the Olson will.

As noted, the original petition was by the children of Tekla or their representatives and, thus, was a suit by the income beneficiaries under the trust established by Olson in his will. Neither the trustee, Westport Bank, nor the living contingent remainder-men were joined.

I.

Adverting first to the claim of evidentia-ry defect will permit the necessary statement of facts sufficient for the disposition of the appeal. The defendant’s claims of error are in two points, but may be considered together. The first claim is that the evidence is insufficient to show activity of the defendant in procuring the deeds so as to permit the plaintiffs to claim a presumption of undue influence. The second claim is that neither substantial evidence nor the weight of the evidence support the findings of the court, further that the evidence was not clear, cogent, and convincing. Both these points require that the evidence favorable to the judgment and the reasonable inferences be considered.

This litigation concerns nine deeds conveying nine separate parcels of real estate from the sole title of Carl Olson to Carl Olson and defendant, Chester Anders, as joint tenants. At the time of Olson’s death, eight of the parcels were in the names of Olson and Anders as joint tenants. The other parcel was sold by Olson and Anders before Olson’s death. These transactions all took place after Olson suffered a severe stroke on December 15,1970, and was hospitalized until January 24, 1971. He never recovered completely from the stroke which caused him to be mentally confused and physically feeble. The only medical witness called by either party testified in answer to a hypothetical question outlining deceased’s condition after his stroke and, from studying the medical records, that Olson would not have the mental capacity to handle his own affairs.

On January 14,1971, while Olson was still confined to his bed in the hospital, he executed a power of attorney giving defendant complete control over all his property and affairs. Rankin drew this power and testified that he notarized it. He was unable to recall going to the hospital for the execution of the jurat.

On January 27, 1971, just three days after his release from the hospital, Olson executed a codicil changing the executor and attorney in his will. Defendant, who was present at the house when the codicil was signed, was named executor. Rankin, who drew the codicil, was named as attorney for the estate. No changes were made as to the beneficiaries.

From the time defendant was granted the power of attorney on January 14, 1971, until Olson’s death in October, 1974, defendant was at Olson’s house daily and had a key to Olson’s home. Defendant was domineering while Olson was passive. Olson was afraid of defendant. There was evidence a lock was installed on the door to Olson’s bedroom. Rankin had prepared requests for Olson to receive the 5% of principal he was entitled to request from the trustee under Tekla’s trust.

The total trust payments made by the Tekla Bolin trust to Olson during his lifetime amounted to $68,841.09. After January 15, 1971, the amount paid out was $49,-739.92. In 1972, Olson requested the West-port Bank to send anything relating to the trust directly to defendant. Thereafter, all trust checks were sent to the defendant. The Westport Bank trust department checks bearing defendant’s endorsement total $48,105.77. Yet the record shows that only one of these checks amounting to $436.59 was actually deposited in the joint checking account of defendant and Olson at People’s Bank.

Olson had a savings account with defendant and defendant’s wife named as joint depositors at the Metropolitan Bank in the amount of $10,468.81. Withdrawals from this account totaled $10,450.00. All of these withdrawal slips were signed by defendant. There was also a certificate of deposit worth $15,513.00 issued May 13, 1970, by the Metropolitan Bank to Olson. This certificate was endorsed by defendant, using his power of attorney, and paid by the bank on May 5, 1973.

Olson had another savings account at the People’s Bank. In 1973, defendant’s name was added to the account and, subsequently, defendant withdrew approximately $5,700.00. At the time of Olson’s death, there was only $150.00 left in the account.

The evidence reflects a transfer of $45,-500.00 in notes from Olson to Olson and defendant as joint tenants or tenants in common and other notes which included defendant’s wife as payee. All of these notes with the exception of one, the Tatum note, show on their face that they were signed after Olson had his stroke and executed the power of attorney to defendant. The Tatum note was executed while Olson was in the hospital, but the date of the execution of the joint tenancy does not show on the note.

Defendant and his wife signed Olson’s name to numerous checks totaling thousands of dollars. Defendant’s wife admitted that she wrote the name “Carl A. Olson” on the back of nine Westport Bank cashier checks made out to Olson. She also admitted signing Olson’s name to at least twenty-two other checks. A handwriting expert testified regarding other Westport Bank trust checks that Olson’s signature was not genuine. All of these checks bear the further endorsement of defendant.

The deeds in question were all executed in 1972 and 1973, the year preceding Olson’s death. A letter, written by defendant’s wife at his request, directed Rankin to prepare a joint tenancy deed. This letter was written within a week of the signing of the deed putting the home place in joint names. Defendant transported Olson to the attorney’s office each time the deeds were executed and was either physically present when the deeds were prepared and signed or was in the immediate vicinity. No other person witnessed the making of these deeds except defendant and Mr. Rankin, who had represented defendant in the past and has handled legal matters for defendant since Olson’s death. Neither defendant, defendant’s wife, nor anyone else, notified any of the plaintiffs that Olson was putting all of his property in joint tenancy with defendant. There was no consideration paid to Olson.

Defendant collected rents from the properties owned by Olson. The reasonable rental values of the eight properties were established by the testimony of a real estate expert, whose testimony was not rebutted by any witness called by the defendant. One parcel of land was sold prior to Olson’s death with the purchasers executing notes in the amount of $12,000 payable to Olson, defendant, and defendant’s wife.

This case is governed by equitable principles. Cancellation of deeds is an extraordinary function of equity, and the evidence to justify it must be clear, cogent, and convincing. Davis v. Pitti, 472 S.W.2d 382 (Mo.1971); Steller v. Steller, 401 S.W.2d 473 (Mo.1966). The scope of appellate review in court-tried civil cases is governed by Rule 73.01 which has been construed to mean that “the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, [or] unless it is against the weight of the evidence . . . .” In addition, appellate courts are admonished to exercise their power to set aside a judgment “on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).

A presumption of undue influence arises where the evidence adduced shows a confidential or fiduciary relationship coupled with evidence of facts and circumstances showing undue influence. Salisbury v. Gardner, 515 S.W.2d 881 (Mo.App.1974); Davis v. Pitti, 472 S.W.2d 382 (Mo. 1971); Bohnsack v. Hanebrink, Mo., 240 S.W.2d 903 (1951). In Salisbury, a case involving a will contest, facts held sufficient to support a presumption of undue influence were that a fiduciary or confidential relationship existed between the defendant and testatrix, the will gave defendant a substantial bequest, and the defendant was active in procuring the execution of the will. The Davis and Bohnsack courts found these and other factors sufficient to affirm the trial courts’ judgments cancel-ling deeds on the grounds of undue influence.

A confidential relationship alone is not enough to raise the presumption of undue influence. There must also be facts or circumstances tending to show undue influence. Bohnsack, supra. Furthermore, it is not necessary to show that the defendant was present or was exerting his influence at the exact moment of execution. Salisbury v. Gardner, supra; Godsy v. Godsy, 504 S.W.2d 209 (Mo.App.1973); Davis v. Pitti, supra. What is required is proof of facts from which an inference can arise that the undue influence was an active factor in the transaction.

Other factors or circumstances bearing on the court’s finding of undue influence are many. In the Davis case, the court found the grantor’s mental and physical condition to be “highly material upon a consideration of the issue of undue influence.” Davis v. Pitti, supra, at 387. Evidence of the physical and mental condition of the grantor is relevant to prove his “susceptibility to the persuasion of undue influence.” Salisbury v. Gardner, supra, at 886.

Another consideration that the courts consider relevant in determining the presence of undue influence is an unnatural disposition of property. Drake v. Greener, 523 S.W.2d 601, 607 (Mo.App.1975); Salisbury v. Gardner, supra.

A factor found particularly important in the Drake case was the absence of consideration for the transfer of a deed. In Drake, the question before the court was whether the absence of consideration for the deed in question coupled with undue influence in its procurement was enough to justify the lower court’s cancellation of the deed. In affirming the trial court’s ruling, the appellate court stated the general rule as follows:

“[MJere absence of consideration is not sufficient to warrant relief by way of equitable cancellation of an executed contract or deed in the absence of some additional circumstance creating an independent ground for granting cancellation, such as fraud or undue influence. But where a person has been induced to part with a thing of value for little or do consideration, equity will seize upon the slightest circumstance of fraud, duress, or mistake for the purpose of administering justice in the particular case.” (Emphasis added). Drake v. Greener, supra, at 606.

Concealment of the existence of such transfers is yet another factor to consider. Godsy v. Godsy, supra; Bohnsack v. Hanebrink, supra.

Applying these principles to the evidence favorable to the judgment and the essence of defendant’s claim of error that the evidence does not disclose defendant was active in procuring the deeds so as to benefit from a presumption of undue influence, it is apparent that no error appears. The trial court made specific and detailed findings of fact. After preliminary findings relating to the execution and proof of the wills of Tekla Bolin and Carl Olson and the conveyances in dispute, the court found that Olson was 78 at the time of his stroke in December of 1970, never completely recovered from the stroke which caused him to be mentally confused, forgetful, and physically feeble. The court found that Olson was controlled by the domineering will of Chester Anders and that the execution of the deeds resulted directly from the undue influence exercised by Anders. The court related the execution of the power of attorney, which the court described as “sweeping,” and the circumstances of the execution of this power, execution of the forged endorsements by the defendant’s wife, control over the funds received from the Tekla Bolin trust and other funds of Carl Olson appropriated by the defendant as well as the defendant’s activity in procuring the services of Rankin, who had been the defendant’s lawyer and continued to represent him after the execution of the deeds, the concealment of the execution of the deeds as supportive findings on the issue of undue influence.

The court further found that Anders was in complete control of Olson’s daily affairs, his financial affairs, was in his house daily, collected rents and had caused Olson to be fearful of Anders, as well as a consideration of the transfer of the $45,000 worth of notes to the joint names of Olson and An-ders as joint tenants. All these findings were related to the existence of a confidential relationship which defendant admits existed, as well as to the findings of the undue influence and its operative effect on the execution of the deeds. The court also found that the defendant was not related to the deceased by blood or marriage and was not the natural object of the bounty of Olson and further found that Olson had always indicated a desire to care for his incompetent niece, Helen Carter, and his disabled nephew, Amos Bolin. Further, that the execution of Olson’s will and the execution of the codicil affirming it indicated a desire on his part that his estate should go to the life beneficiaries named in the will and ultimately to the descendants of the life beneficiaries. The trial court considered as significant the fact that the estate had been almost totally depleted of assets at the time of the death of Olson, thus thwarting his desire to care for the natural objects of his bounty, some of whom might be considered to have had special claims upon that bounty by reason of their disabilities. These findings are also supportive of the trial court’s finding that the undue influence of Anders was active in the procurement of the deeds.

The defendant also argues that the court’s findings and conclusions ignored the testimony of disinterested witnesses who were presented by defendant, the evidence offered by the defendant as to the West-port Bank’s Trust Committee Minutes which indicated that they had made a determination that Olson was capable of handling his financial affairs. In this phase of the defendant’s argument, he is clearly arguing as his brief asserts that the court’s findings and conclusions as to the existence of undue influence were against the weight of evidence and not supported by substantial evidence. Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976), is cited in support of the argument. Applying the rule of Murphy v. Carrón, and considering this record, this court cannot say there was not substantial evidence to support the trial court’s findings and in weighing the evidence, this court is far from a firm belief that the action of the trial court was wrong in finding the deeds were the result of the undue, influence of the defendant. All of the elements of undue influence sufficient to justify the setting aside of these deeds are present in this case. The defendant admits the existence of a fiduciary relationship. The trial court, upon substantial evidence, found that the defendant exerted undue influence over Olson and was active in the procurement of the deeds.

Defendant cites McCoy v. McCoy, 360 Mo. 199, 227 S.W.2d 698 (1950). In McCoy, there was “no evidence ... of participation ... of the grantees in the execution of the deeds.” (Emphasis added). McCoy, supra, at 706. Finding it unnecessary to their decision, the McCoy court did not resolve the question of whether or not there was a confidential relationship between grantor and grantees.

Also cited is Metter v. Janssen, 498 S.W.2d 581 (Mo.App.1973). There the court upheld the trial court’s decision to grant a directed verdict in favor of defendant on the ground that plaintiffs had not made a submissible case of undue influence. In Metter, a confidential or fiduciary relationship was not established. The defendant was the nephew of the decedent, a natural disposition of decedent’s property. The contestants called one witness, who was one of the plaintiffs. The case is inapposite.

ii.

Defendant claims that the trial court erred in failing to recognize a waiver of the Dead Man’s Statute and, thus, the court erred in not permitting the defendant to testify. This contention is based upon a letter offered by the plaintiff which purported to be a letter written by the defendant Anders. That letter is the letter to Rankin directing the execution of one of the deeds in question and bears a handwritten signature purporting to be that of Chester Anders. At the time the letter was offered in evidence, Rankin was on the stand; and plaintiff’s counsel asked him to identify the letter, which the attorney did, indicating that it had been in his file until the time his deposition was taken. The letter was, of course, addressed to that attorney. When the defendant’s wife testified as a witness in the defendant’s side of the case, the counsel for the plaintiff in his initial cross examination exacted from her the admission that she had written the letter purportedly written by her husband and that she had signed his name to it. Although the letter was purportedly written by Chester Anders, it was, in fact, a letter written by his wife.

The letter purports to relay to Rankin the directions of Olson as to the preparation of one of the deeds in question and purports to be a recital of statements made by Olson. The defendant’s wife unequivocally testified that she wrote the entire letter and signed her husband’s name to it. She was never asked on her direct or cross examination whether Carl Olson had made the statement to her or to her husband that is attributed to Olson in the letter. Her testimony is only that she wrote the letter at the direction of her husband.

Defendant argues that since the letter contains what purports to be a statement of the deceased Carl Olson that the offer by the plaintiff of the letter constitutes a waiver of the Dead Man’s Statute. The argument is that plaintiff, by offering this letter as evidence of the defendant’s activity in procuring the deeds constituted an admission of the defendant and that having introduced that admission of the defendant, the defendant could not thereafter be denied the opportunity to testify.

What defendant misconceives is the nature of the bar of the statute. The statute does not exclude evidence; it is directed to the competency of certain witnesses. To assert that a waiver would occur under these circumstances would, in effect, bar the offer of any evidence concerning transactions by any witnesses at the risk of waiving the statute. Here, the witnesses who testified about the letter were plainly not barred by the statute and could have testified fully concerning the origin of the letter as, in fact, the defendant’s wife did. In Stephenson v. Stephenson, 351 Mo. 8, 171 S.W.2d 565 (1943), a letter of the deceased, in which the plaintiff identified the handwriting of the deceased, was admitted in evidence. The court held that the plaintiff was competent to testify concerning the handwriting. The plaintiff’s own letter responding to the deceased’s letter and reciting facts which furnished the basis for plaintiff’s claim of an express trust was offered in evidence after being identified by a witness not a party to the transaction. The court held that plaintiff’s letter was likewise competent as evidence of the transaction and said, “The statute deals with the competency of the witness, and not with the admissibility of evidence.” Stephenson, supra, at 568. The fact that the letter may have implied an admission of activity on the part of the defendant in the instant case does not render the defendant a competent witness. A party protected by the statute waives it by offering the testimony of deceased in a prior hearing or by seeking to obtain the testimony of the party who is barred by the statute, not by offering evidence by witnesses not within the statutory bar.

The entire question of waiver is an afterthought. The defendant did not claim that the statute had been waived at the time the offer was made. In Tomlinson v. Ellison, 104 Mo. 105, 16 S.W. 201 (1891), the court held the refusal of the offer was proper where the party making the offer failed to call the court’s attention to the claim of waiver.

The defendant’s only citation, Martin v. Norton, 497 S.W.2d 164 (Mo.1973), does not assist him on the issue of waiver. There the waiver was clear because the testimony of the deceased in a different case was read to the court upon the specific theory that it constituted declarations against interest of the deceased party.

Defendant also complains that his offer of the defendant’s testimony as to the transactions with the deceased should have been permitted because the objection made by the plaintiff was insufficient. Counsel for the plaintiff had in opening statement and throughout the trial been careful to point out to the court that he did not wish to waive the protection of the Dead Man’s Statute. When the defendant took the stand and testified in his own behalf, the record is replete with objections by plaintiff’s counsel that they were objecting to any testimony by the defendant on the ground that conversations or transactions between the defendant and the deceased were covered .by the Dead Man’s Statute and that the defendant could not testify to any of those transactions. The court noted that the objection was valid. The court indicated that he would permit any questions which did not violate the Dead Man’s Statute, and the examination of the defendant continued with counsel for the plaintiff requesting that the witness not answer until he had had an opportunity to make an objection. After some quarreling between counsel, counsel for the defendant agreed that the same objection could be made to each question. Plaintiff’s counsel, in an excess of caution as to the possibility of waiver of the statute, refused the agreement and continued to object to each question put to the defendant on the ground initially stated of the Dead Man’s Statute. After some sparring, defendant’s counsel announced that he felt he had asked all the questions he could that would not conflict with the provisions of the statute and made an offer of proof in narrative form. The court, before an objection was made, overruled the offer of proof because of the Dead Man’s Statute, and, again, plaintiff’s counsel, in an excess of caution reiterated an objection that the offer of proof was in violation of the Dead Man’s Statute. How the plaintiff could have made any further or other objection is not apparent. The citation of the defendant on this point of Birdsong v. Estate of Ladwig, 314 S.W.2d 471 (Mo.App.1958), is not helpful because there the court was confronted with a situation where the witness was disqualified under both the so-called “transaction ” portion of the statute and under the “administration ” disqualification. The objection in Birdsong failed to specify the portion of the statute under which the objection was made, and under either objection, the witness could have testified to some facts. The objector stated he wanted his objection to “go along” but failed to restate it when the ground shifted. Here, the plaintiff clearly and unequivocally indicated to the court that he was relying upon the disqualification of the defendant under the “transactions” disqualification, and Birdsong is not in point.

III.

The defendant asserts the trial court erred with respect to the parties to the suit. In that connection, appellant has briefed four separate points. To summarize, these points are: that the testamentary trustee, the Westport Bank, was the one party permitted to bring an action absent a showing the trustee was hostile, had an adverse interest or refused to act; that the contingent beneficiaries were indispensable parties under Rule 52.04; that the court erred in permitting the Westport Bank to intervene because the intervention was untimely; and the trial court erred in permitting the intervention of the Administrator Pen-dente Lite of Carl Olson on the grounds that it was not timely.

This entire procedural tangle can be quickly resolved. First, it is not clear that the trustee had any power to act as to the particular subject matter of this litigation. Although there was some small amount of personal property to which the testamentary trust could attach, there was no interest of the decedent in the record title to this real estate which could have furnished a basis for the creation of a trust imposing upon the Westport Bank the obligation to act as trustee. This is not a situation where a trustee has become charged with the administration of a trust as to certain property and an action is commenced with respect to that property. The entire argument of the defendant is premised upon this language in the defendant’s brief, “It is clear that in this matter the testamentary trustee named in the will of Carl Olson, had legal title to all the trust property immediately on the death of Carl Olson and had the duty to recover any properties which may belong to the trust.” (Emphasis added). That simply is factually wrong. The trustee could succeed to no legal title of Carl Olson for all the evidence in this case shows that the legal title to the property here in question had been conveyed by Carl Olson during his lifetime. The thrust of this suit is to set aside the legal title conveyed by those deeds and re-vest the legal title in Carl Olson. The point is without merit.

As to the joinder of the remainder-men as parties to this litigation, the trust instrument and the record in this case demonstrate that there were both living re-maindermen whose taking was contingent upon their survival of the life tenants and there was a possibility of the addition of further remaindermen who would be legally classed as unborn contingent remainder-men. The interests of both the living contingent remaindermen and the interests of the unborn contingent remaindermen depended entirely upon the success of the plaintiff’s suit. If the suit failed in its purpose of setting aside the deeds from Carl Olson to the defendant and Carl Olson jointly, then there would be no possibility of any remainderman receiving anything from this particular real property. Thus, the interests of the life tenants are parallel and supportive of the interests of both the living contingent remaindermen and the unborn contingent remaindermen. In such circumstances, the doctrine of virtual representation applies and the representation of these parties by the life tenants constitutes a sufficient answer to the defendant’s claim that they were not made parties to this litigation. Brown v. Bibb, 356 Mo. 148, 201 S.W.2d 370, 374 (banc 1947).

The last two points made by the defendant complain of the action of the trial court in permitting the intervention of the West-port Bank as a party defendant and the intervention of the Administrator Pendente Lite as a party defendant. As to the West-port Bank, the defendant asserts that the intervention was not timely because the Bank was guilty of laches or was somehow estopped by its delay in entering the litigation.

The timeliness issue is determined in two analogous cases: Matter of Estate of Anderson, 544 S.W.2d 35 (Mo.App.1976), in which, after a jury verdict in a proceeding to discover assets, a joinder of the administrator was made; and, in Grundel v. Bank of Craig, 515 S.W.2d 177 (Mo.App.1974), where the court held that the defect of parties plaintiff was waived by failure on the part of defendant to ask for dismissal on the specific ground there was a defect of parties plaintiff. Defendant here asserts by his motion to dismiss he raised the issue of parties plaintiff, but under the present Rule 55.27, it is necessary not only that the motion to dismiss be filed, but that it specify a defect in parties plaintiff if that is the ground for dismissal. Here, defendant filed a motion to dismiss on the ground the petition failed to state a cause of action and did not complain in any fashion to the trial court about the defect in parties plaintiff until after the court had made his initial findings of fact and conclusions of law and before the entry of final judgment.

It is argued the defendant was prejudiced because the Bank’s testimony concerning the condition of Carl Olson would have constituted admissions binding upon the plaintiffs. The latter of these two grounds is wholly without merit. The Trustee, if it were in fact a party, would have been a party only as to the quantum of legal title which a trustee possesses; and, even if the statements of the Bank were considered to be admissions, they could bind only the legal title and not the equitable title of the beneficiaries. A leading text writer has stated the rule that the power of the trustees to represent the beneficiary does not extend to declarations against interest nor to admissions. G. Bogert, Trusts & Trustees § 593 (2d ed. 1960). Significantly, cited as authority for the rule in that text is a Missouri case, Eitelgeorge v. Mutual House Building Association, 69 Mo. 52 (1878). Other authority is also cited by the text.

In any event, even if the bank’s statements concerning the condition of Carl Olson were considered as admissions, they were before the trial court as well as all of the testimony of the bank officials who observed him, and the trial court was in a better position to determine the weight and value to be given to that evidence either as an admission or as direct evidence of the condition of Carl Olson. This court does not have a firm belief that the judgment of the trial court was wrong on the finding of undue influence, and the point is denied.

The second point with respect to the joinder issue is the defendant’s claim that the intervention of the administrator pendente lite was untimely and that the administrator did not make the required showing of an impaired or impeded interest to justify the intervention. The burden of the defendant’s complaint is that the administrator has no proper function in the proceeding because he has no interest in real property or rent sufficient to justify his presence in the suit as a party. It is a sufficient answer to this argument to point out that the judgment for $12,000 for the property converted from real estate to personalty is directed by the court decree to be paid to the administrator and that, clearly, under Section 473.263 RSMo 1969, the administrator is obligated to take possession of personal property belonging to the decedent which would include the funds derived from the conversion of the real estate. So, too, to the extent that the rent constituted rent due at the death of the decedent, it would be personal property of the decedent and payable to the estate of the decedent. Wocet v. Seacat, 212 S.W.2d 449 (Mo.App.1948). Both the bank and the administrator were made parties under pleadings by which they agreed to be bound by the judgment of the trial court. The trial court properly proceeded to judgment against all of the parties for the salutary purpose of eliminating unnecessary litigation. The statutes relating to intervention are broadly remedial and are intended to facilitate the determination of all related disputes in one proceeding and thereby avoid a multiplicity of actions. State ex rel. Hughes v. Smith, 485 S.W.2d 646 (Mo.App.1972). The defendant is not prejudiced, for, by this judgment, he is protected from any further litigation by the contingent remaindermen, born or unborn, the trustee, the administrator, or the life tenants. The intervention ordered by the trial court thus benefited the defendant by removing any exposure he might have had to multiple litigation.

IV.

The defendant asserts that the trial court erred in two further aspects with respect to the decree as entered. He further claims error with respect to the trial court’s dismissal without prejudice of the claim for punitive damages. This claim of error may be of academic interest, but it has no practical reality in the framework of this litigation. The claim for punitive damages could only relate to the actions of the defendant with respect to the transactions specifically covered by the decree, the transfer of the nine properties upon which the suit was tried. Plaintiffs have a judgment with respect to that claim, and the dismissal without prejudice of the claim for punitive damages is as a practical matter a final judgment with respect to punitive damages arising out of the actions relating to real property. The plaintiff may not hereafter litigate the issue of punitive damages concerning the activities of Anders with respect to the real property for that would clearly constitute a splitting of his cause of action.

The other and more significant claim of error by the defendant is the assertion that the trial court erred in allowing attorney fees to the plaintiff. In this, the defendant is correct. The general rule concerning the allowance of attorney fees is almost too well known to require citation. As it was stated in Rook v. John F. Oliver Trucking Company, 505 S.W.2d 157, 161 (Mo.App.1973), the rule is:

“Unlike the English courts, attorneys’ fees in this state are ordinarily ‘ “recoverable only when called for by contract or provided by statute, or as an item of damage when their incurrence involves the wronged party in collateral litigation, or occasionally, when a court of equity finds it necessary to adjudge them in order to balance benefits.” ’ Arnold v. Edelman, 392 S.W.2d 231, 239 (Mo.1965), quoting from Duncan v. Townsend, 325 S.W.2d 67, 71 (Mo.App.1959); Edwards v. Smith, 322 S.W.2d 770, 777 (Mo.1959); Watkins v. West, 297 S.W.2d 568 (Mo.App.1957); 22 Am.Jur.2d, Damages, § 165.”

The plaintiff seeks to justify the award of attorney fees on the ground that the acts of the plaintiff have created a fund from which others will benefit, and they are thereby entitled to attorney fees. The law, of course, provides for the allowance of attorney fees where a plaintiff has created a fund from which others will share. German Evangelical St. Marcus Congregation of St. Louis v. Archambault, 404 S.W.2d 705, 708 (Mo.1966). If the judgment in this case were personal to the defendants and the remaindermen so that it was ready for immediate distribution, the argument of the plaintiffs would have validity. The judgment of the court in this instance directs the payment of the money judgment to the estate of Carl Olson and, by the setting aside of the deeds, the legal title to the real estate not yet conveyed by Anders will vest in the trustee of the testamentary trust in the estate of Carl Olson. Neither these plaintiffs nor the contingent remaindermen will take any immediate benefit from this litigation. The plaintiffs may have a claim against the trustee for the creation of the funds which the trustee will receive. But, that issue is not in this case and need not be reached or decided here. In any event, Section 484.130 RSMo 1969 preserves a lien on the fund created, and the remand of this case will permit the attorneys to take appropriate action to enforce the lien.

Plaintiff seeks to justify the award of attorney fees by citing Johnson v. Mercantile Trust Company National Association, 510 S.W.2d 33 (Mo.1974). The cited case deals with the “collateral litigation” exception as to attorney fees and has no application here. No case is cited, nor can any be found where, in a case such as the instant case, attorney fees have been allowed.

The judgment of the trial court should be modified by deleting from the judgment the attorney fees and costs and, as modified, is in all other respects affirmed. The cause is remanded to the trial court with directions to amend its decree in accordance with the directions herein.

All concur.

      . Kingsley v. Burack, 536 S.W.2d 7 (Mo.banc 1976), cited by defendant is factually inappo-site; there the verified motion to dismiss specifically raised the lack of necessary parties.

      . City of Bridgeton v. Norfolk & W. Ry. Co., 535 S.W.2d 99 (Mo.banc 1976), is factually distinguishable, for the intervention sought was after final judgment.


source: Caselaw Access Project

author: Robert R. WELBORN, Special Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Clarence BENNETT, Defendant-Appellant.
    No. KCD 28857.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1977.
    Application to Transfer Denied Jan. 9, 1978.

      Ollie R. Mack, Tofle, Mack & Oxenhan-dler, Columbia, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., WELBORN and HIGGINS, Special Judges.
   Robert R. WELBORN, Special Judge.

On a jury trial, Clarence Bennett was found guilty of tampering with a motor vehicle. §§ 560.175, 560.180, RSMo 1969. He has appealed the judgment, and sentence, entered on the verdict, to three years’ imprisonment.

The sole question on this appeal is the sufficiency of the state’s evidence identifying appellant as the person who committed the offense.

At around 9:30 A.M., November 10, 1975, employees at the Boone County Hospital looked out a window and saw a man squatting beside a green 1974 AMC Hornet, owned by a hospital employee and parked on a parking lot at the hospital some 100 feet from where the women were. The Hornet auto was equipped with a citizen’s band radio. The man squatting by the car was apparently trying to unlock it. One employee, Laura Campbell, saw the man throw something that looked like a wire under the Hornet. He went back to an El Camino pickup truck, sat in the truck for a while and then returned to the Hornet, pulled a long object which looked like a wire from under the Hornet and again tried to enter the vehicle. He made another trip to the pickup and again returned to the Hornet and unsuccessfully attempted to enter it. He returned to the pickup, sat there a few minutes and then drove off, toward the north of the parking lot. As he did so, the pickup was stopped by two police vehicles, one entering the parking lot from the east and the other from the west. According to Ms. Campbell, she watched the man for about ten minutes. “He was already there when I went to the window and we observed him up until the police had caught him.”

Police had gone to the parking lot in response to a telephone call from Deana McDonald, another hospital employee who had seen “a fellow by a green car * * * fiddling with the lock * * Ms. McDonald went to the parking lot, went up to the back of “his truck,” an El Camino, and took its license number. She saw the man get into the truck before she went outside. After calling the police, she returned to the window and saw two police cars come on the parking lot and an officer walked up to “his truck.”

Officer Logan of the Columbia Police Department went to the hospital parking lot in response to a radio call. He entered the lot from the west, saw an El Camino type vehicle exiting from a parking place and come toward the police car. The police car blocked the forward movement of the pickup and the officer and driver of the pickup got out of their vehicles and approached each other. At some point the officer placed the pickup driver under arrest and took him to the police station for booking.

At Bennett’s trial, Ms. Campbell, Ms. McDonald and Officer Logan testified, but none could identify Bennett as the man they saw on the parking lot. The defendant in his case called Ms. Campbell and Ms. McDonald and showed them photographs of Bennett taken at police headquarters at the time of his booking. Ms. McDonald said that she could not say that the person pictured was the man she saw because she did not recall that he had a mustache as Bennett did in the photograph. Ms. Campbell could not identify the person pictured as the man she saw because the man she saw had longer hair than that shown in the picture.

The jury returned a verdict of guilty and fixed the punishment at three years’ imprisonment.

On this appeal, the sole contention is that the state failed to produce an identification of appellant as the person who tampered with the vehicle. Appellant does not question the sufficiency of the evidence of tampering and admits that he was the person arrested on the parking lot, but contends that the state’s evidence did not exclude the reasonable theory that someone else tampered with the vehicle and the police arrested the wrong man. Appellant relies upon the inability of the eyewitnesses to the offense to identify him at the trial. He also relies upon discrepancies in the testimony of those witnesses between their testimony at the trial and at the preliminary hearing in that at the preliminary hearing the women described the pickup as a bluish vehicle whereas at the trial Ms. Campbell described it as brown and Ms. McDonald said she could not recall the color of the vehicle.

The difficulty with this argument is that it ignores the state’s evidence by witness Campbell that she saw the person tampering with the Hornet get into his pickup truck and start to drive away and saw the pickup stop between two police cars. As above recited, she saw the tamperer “up until the police had caught him.” It also ignores the testimony of witness McDonald that after getting the license number of the truck, she returned to the window and the man she saw was in the pickup truck, starting to drive away ánd the police came and one of them walked up to the truck. This evidence was sufficient to permit the jury to find beyond a reasonable doubt that the person arrested, admittedly Bennett, was the same person that the witnesses saw tampering with the automobile on the parking lot.

The absence of more direct testimony by the state’s witnesses was not destructive of the state’s case. State v. Stockdale, 415 S.W.2d 769, 771[2-5] (Mo.1967); see State v. Hamilton, 149 Me. 218, 100 A.2d 234, 240-241 (1953); Brown v. State, 98 Ga.App. 350, 105 S.E.2d 785, 786[1-3] (1958).

The inability of the witnesses to recognize appellant from the police photographs went merely to the weight and credibility of their testimony, matters for the jury. The same is true as to the discrepancies between the trial and preliminary hearing testimony.

Appellant’s argument that the state’s evidence showed only presence on the parking lot and opportunity to commit the offense is not valid. The state’s evidence, if believed, showed that the person arrested was the person who had tampered with the automobile.

Because the question here is essentially factual, there is no need to distinguish the numerous cases cited and relied upon by appellant. There is no question that mere presence at the scene of a crime (State v. Gastaldi, 386 S.W.2d 392 (Mo.1965)) or opportunity to commit an offense (State v. Walker, 365 S.W.2d 597 (Mo.1963)) is not sufficient for a finding of guilt. However, the state’s evidence here did go beyond such proof and was sufficient to admit of the jury’s finding of guilt.

Judgment affirmed.

All concur.


author: SWOFFORD, Presiding Judge.

text:
    In re the MARRIAGE OF Nancy W. DUBOC, Respondent, and Robert Miller Duboc, Appellant.
    No. KCD 28927.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1977.

      John C. Thurlo, Michael H. Maher, Kansas City (Swanson, Midgley, Gangwere, Thurlo & Clarke, Kansas City, of counsel), for appellant.
    S. Preston Williams, David Lee Wells, North Kansas City, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   SWOFFORD, Presiding Judge.

This appeal stems from a suit for dissolution of marriage in which the court below entered a judgment in favor of respondent (wife) and against the appellant (husband) for temporary maintenance in the sum of $3,500.00 per month and for suit money and temporary attorney’s fees.

The husband complains only of that part of the order awarding temporary maintenance. He asserts two points on appeal, upon the strength of which he seeks a mandate either reversing the award or reversal and order for a new trial upon the issue of temporary maintenance. In support of this position he argues in substance that: One, the award for temporary maintenance was not supported by “any evidence” of reasonable need in accordance with Section 452.-315.(5) RSMo 1973 Supp.; and two, that the wife failed to sustain her burden of proof of establishing her need for temporary maintenance and her inability to provide such maintenance, and, thus, the award to her was an abuse of the trial court’s discretion. These two points are so similar in purport that they can and should be considered together in the light of the record evidence.

The parties were married in March, 1950, and there were children born of the marriage, two of whom were unemancipated females living at home at the time of the hearings on the issue of temporary maintenance, namely Carol Duboc, age 12 years, and Ann Duboc, aged 17 years. The family resided in a five-bedroom home located on approximately an acre of land at 601 West 55th Street in Kansas City, Missouri. The marriage had fallen on bad times for two or three years preceding the hearing. The wife had over this period filed suit for divorce (dissolution) on perhaps two occasions, which suits she had subsequently dismissed. This period culminated in the filing of the underlying suit for dissolution in this proceeding on March 22,1976, on which date the wife moved from the home taking the younger girl, Carol, with her. The husband remained in the home. On April 2, 1976, the wife and Carol returned to the home on advice of her counsel and because she did not want Ann, who had then returned from her trip, to be left alone. From that date until the time of the hearings now under review, April 9 and April 20, 1976, the husband and wife both continued to occupy the home, although under circumstances of complete estrangement.

The wife testified that the expense of the family living for the year 1975 was averaging $3,500.00 per month, not including tuition for the girls at a private school or insurance, and that such sum was necessary for her and the children’s temporary maintenance in the home. She stated that this figure would be higher if she and the girls lived elsewhere in rented quarters. Her statements in this regard, while not broken down into specific items of cost, were not challenged by cross-examination, nor in the testimony of the husband, and were at least tacitly conceded at the hearings. This unchallenged testimony was all of the evidence before the court below as to the maintenance needs of the wife and children.

As to the other factor of the ability of the parties to meet these expenses, now called into question for the first time, the evidence is unchallenged. The wife held certain shares of stock in her own name in three companies, Sears-Roebuck, Kimberly-Clark and Stewart-Warner, which at the time of the hearings the husband stated were worth $13,196.00. She also had a savings and loan account of $22,500.00. The source of these assets does not appear in the record. The wife, except for a few weeks immediately following the marriage in 1950, had never been gainfully employed and was unskilled in any trade, profession or business. At the time of the hearings she had owned an interest in a tennis shop for a short period of time, which business was operating at a loss.

The husband was an executive officer of and shareholder in the Western Casualty and Surety Company, and the wife testified, without objection, or cross-examination, that his 1975 income tax return declared an income of $200,000.00. Although the husband testified in the court below, he was not asked about the extent of his ownership in Western or his other assets or investments because his counsel made the following objection:

“MR. THURLO (Counsel for husband): If the Court please, I’m going to object to that line of questioning because this gets into matters which might have to do with the division of marital property upon a decree of dissolution being entered, if one is. It is not germane to any issue before the court on these temporary motions.
Now in order to foreclose, I think, inquiry into the respondent’s financial circumstances- — I will stipulate with my client’s permission, that he is financially able to pay $2500.00 a month or $8500.00 a month, whichever it is the petitioner now is asking for temporary support and he further is financially able to pay the sum which is, I understand, is being requested as temporary suit money so that I see absolutely no relevance to going into his financial affairs or his property holdings at this time.
MR. SHAPIRO (Counsel for wife): I agree, Your Honor.
THE COURT: All right.
MR. SHAPIRO: I’ll withdraw the question.
THE COURT: All right.” (Emphasis added)

By like token, in the light of this colloquy and agreement, the wife’s individually held assets of stock and savings were properly disregarded in determining the temporary maintenance for the wife and children in this case, since those also may ultimately be impressed with the necessity of division as marital property.

In this posture of the record the court had these limited areas in which to exercise its discretion: One, the needs of the wife and children to maintain their accustomed standard of living during the pendency of this litigation; two, her personal ability to meet these needs from her own individual wages, salary or product of her work; three, the husband’s ability to meet such maintenance needs from his wages, salary or product of his work.

While the record lacks the specificity typically found in proceedings of this kind, the parties by failure to bring forward any specific facts and by tacit, if not unqualified, agreement on these issues, left the court below with little choice other than to enter the order appealed from. Trial courts historically are clothed with broad discretion in determining the amount to be awarded as maintenance, and this court reviews the record only to determine if a manifest abuse of such discretion appears. Fugate v. Fugate, 510 S.W.2d 705, 707[5] (Mo.App.1974); Forrest v. Forrest, 503 S.W.2d 80, 83[5] (Mo.App.1973). This standard of review, while still valid and applicable, has been further defined (and refined) in all court-tried matters in Murphy v. Carron, 536 S.W.2d 30, 32 [1-3] (Mo.banc 1976), which standards are applicable in dissolution of marriage proceedings. In re Marriage of Theodore Leonard and Bobby Leonard, 538 S.W.2d 736, 737[1] (Mo.App.1976). This record meets the standards of Murphy v. Carron, supra, and thus, the dis-cretional judgment of the trial court should be disturbed in this case only if this court has “a firm belief that the decree or judgment is wrong”. No such “firm belief” finds any support or nourishment in this record.

The judgment for temporary maintenance is affirmed and the cause is remanded for further proceedings.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Gary MERRITT, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28979.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1977.
    Richard J. Yocum, Asst. Public Defender, St. Joseph, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

      Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from denial, after evidentiary hearing, of motion under Rule 27.26 to vacate and set aside or correct judgments of conviction and consecutive sentences of four and five years following guilty pleas to burglary, second degree, and robbery, first degree. Appellant’s questions go to whether his guilty pleas were voluntarily entered, asserting: (I) that he was not advised of his Sixth Amendment rights to remain silent, to appeal, and collateral consequences of conviction; (II) that the court “used untried cases to enhance punishment”; (III) that he was “operating under a false impression or misapprehension” that if he went to trial “the prosecutor would file under the habitual criminal statute and defendant would get a mandatory life sentence if convicted of the robbery.”

On April 1, 1974, Gary Merritt, with counsel, pleaded guilty to burglary, second degree, at which time the court ascertained that defendant was 20 years of age, educated to the eighth grade, a resident of the state penitentiary on a prior plea of guilty to burglary, second degree, and his understanding of the elements and consequences of a jury trial. In addition, defendant recited facts proving his guilt of the burglary charge to which he had pleaded guilty. Defendant also denied that he was offered any threats or other inducements leading to a guilty plea. The court deferred sentencing pending consideration of a presentence investigation.

On May 13, 1974, the court, after consideration of the presentence investigation, and that the burglary was a second offense, sentenced defendant to four years’ imprisonment less 77 days’ jail time.

On May 31, 1974, Gary Merritt, with counsel, pleaded guilty to robbery, first degree, at which time the court again ascertained defendant’s understanding of the elements and consequences of a jury trial, and the absence of promises or other inducements to waiver of a jury trial, and his knowledge and understanding of the consequences of a recommendation by the State of a five-year sentence on a guilty plea. In addition, defendant recited facts proving his guilt of the robbery' charge to which he had pleaded guilty. The court recognized that defendant had been “in trouble before,” denied defendant’s request for concurrent sentences, accepted the State’s recommendation, and sentenced defendant to five years’ imprisonment consecutive to the sentence imposed on the burglary charge on May 13, 1974.

The motion to vacate, as amended, alleged that movant’s sentences were imposed “by the use and consideration of untried crimes”; that movant’s guilty pleas were the products of “coercion and duress” in that “the prosecutor threatened to try mov-ant under the habitual criminal statute” if he did not plead guilty; that he was under the impression that trial “under the habitual criminal statute was a mandatory life sentence”; that he was not informed of the range of punishment, Fifth and Sixth Amendment rights and right of appeal following conviction.

Movant was accorded a hearing July 23, 1976. He took the position that he was entitled to relief on grounds that at the time he pleaded guilty to robbery he was threatened by the prosecuting attorney “that he would get a life sentence under the habitual criminal act, and the state has not produced Mr. England to rebut that claim”; and that as to the burglary, “he wasn’t apprised of all of his rights * * *.” Movant also testified that he was “stoned” on drugs to the point he did not know what he was doing.

The court found defendant was not under the influence of drugs at the time of his guilty pleas; that he pleaded guilty to burglary and robbery because he was guilty; that he did not believe movant’s story of threats.

Movant had the burden to prove his grounds for relief. And appellate review is limited to whether the trial court’s judgment in denial of relief is “clearly erroneous.” Rule 27.26(f) and (j), V.A.M.R.; Crosswhite v. State, 426 S.W.2d 67, 70 (Mo.1968); State v. Taylor, 529 S.W.2d 427 (Mo.App.1975). Cf. Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976), with respect to review of cases under Rule 73. Weight and credibility of the evidence is peculiarly within the province of the trial court, Shoemake v. State, 462 S.W.2d 772, 775 (Mo.banc 1971); and a trial court’s finding that a guilty plea was voluntarily entered in discredit of movant’s claims of coercion and misunderstanding is permissible in absence of evidence to the contrary. State v. Taylor, supra, l.c. 430[2, 3].

Application of the above principles in the circumstances of this case impels a conclusion that no error of law appears; that the findings, conclusions and judgment of the trial court are not clearly erroneous; and that judgment should be affirmed under Rule 84.16(b). Baysinger v. State, 552 S.W.2d 359 (Mo.App.1977).

Judgment affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. Robert J. GRADO, Appellant.
    No. KCD 29096.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1977.

      Clayton A. Chittim, Robert A. Simons, Kansas City, for appellant.
    Atty. Gen. John D. Ashcroft, Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment of conviction and sentence to three years’ imprisonment entered on jury verdict finding Robert J. Gra-do guilty of assault with intent to kill without malice. § 559.190, RSMol969.

At around midnight August 1, 1975, following the conclusion of the annual Mexican Fiesta at the Guadalupe Center in Kansas City, a number of persons had gathered on 23rd Street between Madison and Belle-view. Among them were Anthony Rios and his brother Daniel. A pickup truck drove up and the appellant, Robert Grado, and his father got out. According to the state’s evidence at the trial, Grado wanted to find out who had “jumped” his brother and he started toward the group uttering profane epithets. According to Anthony Rios, he and several others moved away in order to avoid a confrontation, but appellant followed them and began to berate Anthony’s brother. According to Anthony, “Since he was directing all these comments to my brother, I felt maybe I could reason with him and I looked at him, I said, ‘Robert, what seems to be the problem here,’ you know, ‘they told you already nobody jumped on your brother.’ And he looked at me and he pulled out his gun and he said, ‘Take this, Big Boy.’ And he shot me.” The bullet struck Anthony in the left wrist. As he started to run, appellant fired again and struck Anthony in the back and a third shot struck him in the hip. Anthony was taken to a hospital and police were called to the scene of the shooting, but appellant departed before they arrived. The state’s evidence was that only appellant fired a gun.

The appellant’s version of the incident was that he had gone to the Center to look for his mother and brother who had attended the Fiesta. Daniel Rios, with whom appellant had had an altercation over a pool game in June, started pointing his finger at appellant and told him he wanted to fight. Appellant told Rios that he “wasn’t looking for no trouble with anyone.” Anthony Rios told appellant: “If you got any problems, take them out on me.” Danny pulled a gun when he was about 15 feet from appellant and started walking toward him. Appellant pulled his gun and started running. He fired two or three shots as he ran to his truck and he and his father left in the truck. According to appellant, he heard three or four shots fired from the other gun.

According to appellant, at the time of the difficulty over the pool game, Danny said he would kill him and appellant started carrying a gun because of that threat. Appellant said that at the time of the shooting, “I was trying to get away from him and at the same time trying to protect myself.”

The foregoing demonstrates the antipodal version by the state and by the defendant of the occurrence. Other witnesses supported the version of the side by which they were called. The issue of self-defense was submitted and the jury returned the verdict previously noted.

On this appeal, appellant’s first assignment of error involves the trial court’s rulings on objections made to the examination by the prosecutor of appellant concerning consultation with an attorney prior to his arrest and to argument by the prosecutor on that score.

In his cross-examination, appellant stated that he went home after the occurrence, but did not call the police. “I wanted an attorney before I said anything.” A question about appellant’s concern in that regard was objected to and the objection sustained, with instruction to the jury to disregard the question.

On further cross-examination, appellant said that he stayed home on August 2 and 3. On August 4, he called and checked around about a lawyer. He did not get in touch with a lawyer until the next day, August 5. On August 6, Appellant turned himself in to the police department. This interrogation appears:

“Q Did you have an occasion to talk to any police officers at that time?

“A Just the one on the phone that called me.

“Q Did you ever tell them that this was self-defense and that you were actually shot at?

“A I never made a statement.

“Q You never told them any of this story that you are telling here on the stand today?

“A No, sir.”

No objection to this questioning appears in the transcript.

In his closing argument, the prosecutor argued: “I submit to you that the first time self-defense came into the mind of this defendant in this case is when he talked to his lawyer on Monday morning, and that’s when he went down.” An objection, “ * * * [Tjhat’s not in evidence,” was sustained. Out of the hearing of the jury, the defense counsel elaborated: “I think that’s a very damaging and prejudicial statement, I request that the jury be discharged. That the first time he thought of self-defense came up after he talked to me, there’s no evidence of that and that’s very damaging and prejudicial.” The court denied a request for a mistrial, but did instruct the jury to disregard the prosecutor’s statement.

Relying upon the decision of this court in State v. Roth, 549 S.W.2d 652 (Mo.App. 1977), appellant here contends that the trial court erred in allowing the prosecutor to argue that it should infer appellant’s guilt from (1) the fact that he consulted counsel before surrendering to the police, (2) the fact that he did not inform the police of his intention to assert the defense of self-defense and (3) the fact that he made no statement in advance of trial “all in violation of appellant’s rights under the Fifth and Sixth Amendments of the United States Constitution.”

This case is readily distinguishable from Roth. Roth holds that a prosecutor may not argue that guilt may be inferred from the post-arrest silence of a defendant, particularly one who has received Miranda warnings. Here the prosecutor’s argument was not aimed at post-arrest silence but at pre-arrest activity of the defendant. His argument basically was that if, as appellant testified, he was the innocent victim of an assault, why had he not reported the assault to the police. In the cross-examination of appellant, there was an objected to question about a statement following the arrest of appellant, but no such reference appears in the argument and the assignment of error relates to the argument.

Furthermore, contrary to the situation in Roth, the defense objection to the argument was sustained. A mistrial was not ordered, but in view of the objection voiced, the trial court is not to be faulted for failure to invoke the drastic remedy of a mistrial.

Roth is not here controlling and appellant has not demonstrated that the trial court’s ruling calls for a reversal of his conviction.

Appellant next objects to the trial court’s ruling sustaining the state’s objection to testimony sought to be elicited from David Grado concerning an encounter with the Rioses shortly before the shooting involved in this case.

David Grado, brother of appellant, was the first witness for the defendant at the trial. When he was asked whether or not anything unusual happened to Albert Tino-co at the Fiesta, the prosecutor objected on the grounds of immateriality. Counsel for the defendant stated that he wished to show that, shortly before 12:00 A. M., Albert Tinoco had been arrested for an assault on David Grado which had occurred in June; that, after the arrest of Tinoco and before appellant had arrived on the scene, the Rios brothers threatened David. According to the offer of defense counsel, David Grado had left the Fiesta before his brother arrived.

The prosecutor objected to testimony going into the reason for Tinoco’s arrest. He stated that he would have no objection to testimony of the fact of the arrest.

When defense counsel again asked whether or not anything unusual happened to Tinoco, the witness replied that Tinoco “was arrested for assault charge.” A prosecution objection to testimony as to the reason for the arrest was sustained whereupon defense counsel repeated the offer to prove that the arrest was for an assault on the witness some two months before. The state’s objection to going into the reason for the arrest was sustained. Defense counsel then asked the witness who was with Tinoco at the time of his arrest. The witness replied that the Rios brothers were. The witness was asked the time of the arrest and he said shortly before midnight. The witness was then asked whether he left the Fiesta after Tinoco was arrested and he said that he did. Counsel asked no questions of the witness concerning hostility toward him exhibited by the Rios brothers at the scene.

On this appeal, the complaint of appellant is that the trial court excluded evidence which would have shown that the “group with whom the melee started and which surrounded the alleged victim was in a dangerous, aggressive and belligerent mood” and that such evidence bore upon the appellant’s claim that he was apprehensive about his personal safety and acted in response to what he considered an immediate threat upon his life.

The difficulty with this contention lies in the fact that the trial court’s ruling now complained of did not exclude evidence of hostility of the “group” or the Rioses exhibited toward David before appellant arrived. The trial court’s ruling excluded only testimony of David as to the reason for Tinoco’s arrest. No effort was made to elicit testimony from the witness as to what occurred between him and the Rioses following Tino-co’s arrest. Such inquiry was not precluded by any ruling on the part of the trial court so that there is no basis for the claim of error now asserted.

Appellant’s- final assignment of error is based upon the admission into evidence of a statement made by the victim to the police. As part of the defendant’s case, a police officer who took a statement was called as a witness to testify to a portion of the statement which was believed to contradict the testimony of the victim at the trial. After that portion of the statement had been offered, the state upon cross-examination of the witness was permitted to introduce the entire statement with deletion of some objectionable portions, and have it read to the jury. The statement was generally consistent with the testimony of the victim at the trial. Appellant now contends that there was no proper evidentiary exception to the hearsay rule which permitted the use of the victim’s prior consistent statement.

When a witness has been impeached by a prior inconsistent statement, the party who called that witness may “put other portions of the same statement in evidence to show the context and circumstances of the entire statement.” Thomas, “Rehabilitating the Impeached Witness with Consistent Statements,” 32 Mo.Law Rev. 472, 491 (1967). “The trial court has a broad discretion in determining the extent to which additional portions of a statement may be read into evidence to show the context of and circumstances under which the impeaching portion was made for the purpose of minimizing its impeaching force.” State v. Beishir, 332 S.W.2d 898, 903[6, 7] (Mo.1960).

In this ease, the trial court, when the state sought to make use of the statement, should have limited the state to the use of the portion which would have tended to show the context and circumstances of the portion used for impeachment purposes. The trial court accepted the state’s erroneous position that simply because the defendant had employed a portion of the statement the state had a right to place the entire statement in evidence.

However, any error in the trial court’s ruling here was harmless beyond a reasonable doubt because the defendant placed in evidence the portions of the statement which showed an unprovoked attack with a gun by appellant upon Rios. The portion read by the defendant started with Rios’ telling Grado that no one had jumped his brother and Grado’s responding by saying: “Take this, Big Boy,” pulling out a pistol and shooting Rios in the wrist and relates the firing of the other two shots which struck Rios. The portion of the statement upon which the defendant relied for impeachment dealt with the activity and remarks of one of the group who was with Rios and related to what that person said and did after Rios had been struck by the third bullet and had hidden under a car. The portion added by the state dealt primarily with the preliminary actions of the appellant before the shooting. However, in view of the portion read by the defendant, he is in no position to assert prejudice by reason of the addition of that portion offered by the state.

Judgment affirmed.

All concur.


author: TURNAGE, Presiding Judge.

text:
    Darryl K. THREAT, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29149.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1977.
    Application to Transfer Denied Jan. 9, 1978.

      James T. Cook, Michael W. Manners, Pa-den, Welch, Martin & Albano, P.C., Independence, for appellant.
    John D. Ashcroft, Atty. Gen., Jeffrey W. Schaeperkoetter, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   TURNAGE, Presiding Judge.

Darryl Threat filed his motion under Rule 27.26 to vacate the judgment and sentence imposed upon him for armed robbery, first degree. The court held an evidentiary hearing and made findings,, of fact and conclusions of law which denied relief. This appeal follows.

Threat now contends his judgment and sentence should be vacated because he was denied effective assistance of counsel both at the trial and appellate level. Affirmed.

After his conviction Threat filed a direct appeal to this court and the conviction was affirmed. State v. Threat, 530 S.W.2d 41 (Mo.App.1975).

Threat now contends his trial counsel failed to give him the representation to which he was entitled because prior to trial his counsel failed to interview a police officer concerning a statement the officer’s report indicated Threat had made. The statement was written on the report as: “I’ve got me on this one. It was stupid.” Threat denied to his counsel he had made any statements to any police officer.

When the officer testified a hearing was held to determine the voluntary nature of the statement, and, after the court determined it to be voluntary, the court allowed the officer to testify concerning it. It appeared the police report contained a typographical error since the statement should have read: “You’ve got me on this one. It was stupid.”

In its findings of fact the court found Threat’s trial counsel succeeded in having the court hold a full evidentiary hearing on the voluntary nature of the statement but was unsuccessful in keeping the statement from the jury. Counsel testified on this 27.26 motion that it made little if any difference whether he had talked to the police officer prior to the trial in the efforts he made to keep the statement out of evidence.

Failure of counsel to talk with a police officer about a statement when the defendant denied making any statement was considered in Barker v. State, 505 S.W.2d 448 (Mo.App.1974). The court stated the test was whether or not an improper conviction had been obtained as a result of the trial not being fair.

The trial court found Threat had a fair trial and the failure of his counsel to interview the police officer prior to trial did not deprive him of a fair trial. This finding is amply supported by the evidence and is, therefore, not clearly erroneous. Rule 27.-26(j).

Threat further contends counsel who represented him on appeal failed to raise the question of the State supplying an inaccurate report to the defense, i. e., the report containing the typographical error as set out above. Appellate counsel likewise testified and stated he was fully aware of this problem but did not consider it worthy to brief and present on appeal. Again, an identical situation was presented in Boyer v. State, 527 S.W.2d 432, 437[10] (Mo.App.1975). In that case the court stated counsel was entitled to rely upon his own judgment and was under no duty to brief all assignments which may have been possible.

Likewise the court in this case found the failure to raise this point on appeal did not result in any manifest injustice to Threat. The findings of fact and conclusions of law are not clearly erroneous and the judgment is affirmed. Rule 27.26{j).

All concur.


author: SMITH, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Delmar COOPER, Defendant-Appellant.
    No. 37642.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 1, 1977.

      Stephen C. Moore, Asst. Public Defender, Clayton, for defendant-appellant.
    Paul Robert Otto, Asst. Atty. Gen., John D. Ashcroft, Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., St. Louis, for plaintiff-respondent.
   SMITH, Judge.

Defendant appeals from his conviction by a jury of robbery first degree by means of a dangerous and deadly weapon and his sentence of life imprisonment imposed by the trial court pursuant to the second offender act, Sec. 556.280 RSMo 1969.

No attack is made on the sufficiency of the evidence so a brief review of the facts will suffice. The evidence supporting the verdict established that defendant entered a drug store and at gunpoint forced the pharmacist to fill two shopping bags with money and controlled substances. The defendant then ordered the pharmacist’s teenage son to carry the bags to the pharmacist’s car and told the boy he was to accompany defendant in his escape. As soon as defendant left the store, the pharmacist obtained a shotgun and ran to the parking lot, where he fired one shot, wounding defendant. When the police arrived defendant was lying on the ground with his gun in close proximity.

Defendant’s first two points relate to alleged comments on the evidence by the trial court. We have carefully reviewed both occurrences and find neither to be a comment on the evidence nor prejudicial to defendant. We find no error of law and conclude that an extended discussion of the points would have no precedential value.

Defendant’s remaining points deal with the trial court’s finding that defendant was subject to the provisions of the second offender act. Initially defendant contends that the prior conviction used to invoke the statute was fatally defective because his guilty plea in that case was based upon ineffective assistance of counsel. This contention is based in turn upon an alleged conflict of interest in that his lawyer also represented a co-defendant who was going to testify against defendant. We do not find this case governed by State v. Cox, 539 S.W.2d 684 (Mo.App.1976). There is nothing in the record before this court to show that the co-representation had any effect upon defendant’s decision to plead guilty, that he was unaware of and did not consent to the dual representation, or that he was in any way prejudiced by such representation. We did not hold in Cox that such dual representation as a matter of law established ineffective assistance of counsel. We held only that under the rather peculiar facts there present Cox was denied effective assistance of counsel. We do not find comparable facts here.

Next movant contends that there was insufficient evidence to support application of the second offender act because no evidence was adduced that defendant had been “subsequently placed on probation, paroled, fined or imprisoned” for the offense for which he had earlier been convicted. See Sec. 556.280 R.S.Mo.1969. Defendant’s contention is correct. There was no such evidence and the trial court made no finding of punishment. The state argues that we may presume punishment from the conviction. We cannot. Punishment is an element that must be proved to make the second offender act applicable. State v. Kent, 375 S.W.2d 40 (Mo.1964) [12].

We are confronted with a novel situation on remand. The trial court, although determining the second offender act was applicable, nevertheless submitted the question of punishment to the jury for an “advisory opinion.” The jury assessed punishment at 30 years. The jury was not instructed that its opinion was advisory only, and for all practical purposes the matter was handled, as far as the jury was concerned, as if the second offender act did not apply. Under State v. Hill, 371 S.W.2d 278 (Mo.1963) [7-9], we remand the cause for an evidentiary hearing on the issue of former conviction and punishment of defendant. If at such hearing sufficient evidence is adduced to establish the applicability of the second offender act, the trial court may again set and pronounce sentence pursuant to that statute. If the evidence fails to establish the applicability of the second offender act, then the court shall set and pronounce sentence as provided in cases where the jury has determined punishment, and shall treat the advisory finding of the jury as such a determination.

Judgment reversed and cause remanded for further proceedings in accordance with this opinion.

CLEMENS, P. J. and DOWD, J., concur.


text:
    Irvin J. KOPF, Appellant, v. STATE of Missouri, Respondent.
    No. 38791.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 1, 1977.
    Brady, Devereaux & Stokes, Michael D. Stokes, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   SMITH, Judge.

Movant appeals from the action of the trial court denying without evidentiary hearing his motion to vacate conviction and sentence under Rule 27.26. This was movant’s second 27.26 motion. The original appeal from his conviction is State v. Kopf, 481 S.W.2d 7 (Mo.1972); the appeal from denial of his first 27.26 motion is Kopf v. State, 523 S.W.2d 114 (Mo.App.1975).

The present motion asserts lack of jurisdiction of the court in the original trial because of lack of venue and ineffective assistance of counsel because of failure to raise the venue issue. We affirm for the following reasons:

(1) The venue issue could and should have been raised on appeal from the conviction. State v. Leigh, 423 S.W.2d 690 (Mo.1968).

(2) If cognizable at all under Rule 27.26, the matter could have been raised on the original 27.26 motion and successive motions do not lie. Rule 27.26(d).

(3) The record of the original trial reflects direct testimony by a St. Louis City police officer that the offense occurred at 1974 Arsenal in the City of St. Louis. See Eichelberger v. State, 524 S.W.2d 890 (Mo.App.1975). Venue was established, and any claim to the contrary is frivolous. Counsel is not ineffective for failing to raise frivolous points.

Judgment affirmed.

CLEMENS, P. J. and DOWD, J., concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri, Respondent, v. Matthew MAYO, Appellant.
    No. 37978.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Nov. 1, 1977.

      William J. Shaw, Public Defender, Frank Anzalone, Asst. Public Defender, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Chief Counsel, Walter 0. Theiss, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Noel L. Robyn, Asst. Pros. Atty., Clayton, for respondent.
   NORWIN D. HOUSER, Special Judge.

Matthew Mayo, convicted by a jury of manslaughter, § 559.140, RSMo 1969, and committed to the department of corrections for 1 years, has appealed.

From the state’s evidence the jury could have found these facts: John Connors, while a visitor at Mayo’s house, was wearing a pair of sunglasses for which he had paid $10. Mayo asked to see them. Connors took them off and handed them to Mayo. Mayo refused to return them to Connors and refused to pay Connors $3 for them, an amount Connors agreed to accept. Connors left Mayo’s house, sought out Con-nor’s cousin, Steven Trust, and told him Mayo had taken his sunglasses. Trust said, “We are going down there [to Mayo’s] and get them.” Connors, Trust and two Moody brothers drove to Mayo’s. Connors, Trust and Tom Moody went up onto the porch of Mayo’s house and Connors knocked on the door. Mayo answered the door, carrying a gun in his right hand, down at his side. Tom Moody left the porch and returned to the car parked in front of the house. Trust asked Mayo what the problem was. Connors said all he came for was his glasses. Mayo answered there was no problem. Mayo then “pulled the gun up,” “put the gun up to [Trust’s] head.” When Trust saw the gun he said “F_you” and started to turn, to go down the porch steps. The gun was fired. The bullet entered Trust’s head just above the right eye, inflicting a wound from which he died several hours later. Mayo made an oral statement to Officer Duane France that Trust came to his house to collect money owed Trust for narcotics; that Mayo told Trust he did not have the money; that when Trust began threatening Mayo and Mayo’s family with bodily harm Mayo shot Trust in self-defense. The officer found Trust lying on the ground at Mayo’s house, with an automatic revolver in his waistband. Officer France testified that the weapon was not ready for firing; that there was no bullet in the chamber. He further testified that there were four cartridges in the clip; that to fire the gun you grab the top of the weapon, pull it back to put the bullet in the chamber, then pull the trigger. Officer France’s written report stated that when the gun was examined there was a cartridge in the chamber. Officer Leslie DuBose testified that the gun removed from Trust’s waistband was loaded — that there was a bullet in the chamber; that Mayo told DuBose that Trust had made numerous threats to harm him and his family and that he shot Trust in self-defense when Mayo saw Trust’s hand go for his belt.

Mayo’s mother testified she heard Connors threatening to go get his big brother and come back and kill “all of you black mother_”; that later that evening Connors returned to her house with Trust and another man; that Trust had a gun in his bosom; that she called her son and told him “the fellow had a gun on him”; that she did not know whether her son had a gun or not; that she did not see her son with a gun.

Mayo’s first point is that the court erred in giving Instruction No. 8 on justifiable homicide and refusing appellant’s proffered instruction on the right to act upon appearances; that No. 8 was an incomplete statement of the law of self-defense in this case because it ignored one of his primary defenses — his right to act reasonably in good faith.

Given Instruction No. 8 was MAI-CR 2.40, paragraph 2 of which reads:

“ * * * (If) the defendant had reasonable cause to believe and did believe that he was in immediate danger of death or serious bodily harm and had reasonable cause to believe and did believe that it was necessary for him to act as he did to protect himself from such danger, then you are instructed that he acted in lawful self-defense and must be acquitted.”

The court refused to give optional paragraph 5 of MAI-CR 2.40, which reads:

“If the defendant had reasonable cause to believe and did believe that he was in immediate danger of death or serious bodily harm and that it was necessary for him to act as he did, it is of no consequence that the appearances later turned out to be false. If he acted in lawful self-defense, as submitted in this instruction, he must be acquitted even though there was (no purpose on the part of [name of victim] to kill him or do him serious bodily harm) (and) (no immediate danger that it would be done) (and) (no actual necessity to use the force which he did).”

In refusing optional paragraph 5 the court reasoned that there was no evidence upon which Mayo could base an apprehension of death or great bodily harm that later turned out to be false. If the victim had brandished an unloaded cap pistol paragraph 5 would have to be given, the judge said, because the appearance of danger from a loaded pistol later turned out to be false, but here the appearance of danger from a loaded pistol did not turn out to be false.

Mayo argues that when Trust’s hand went toward his belt he may have been intending merely to scratch his stomach, or pull a gun as a threat with no intention to harm Mayo, and that under a false appearances instruction Mayo would have been entitled to act “as long as he had a reasonable fear.”

“The appearances doctrine operates to justify a person to act in self-defense although it later proves the appearances were false,” State v. Minnis, 486 S.W.2d 280, 283[1] (Mo.1972), but optional paragraph 5 on appearances that later turn out to be false is to be given only in cases where it applies to the facts — where the evidence justifies it. State v. Demaree, 362 S.W.2d 500, 503[3] (Mo. banc 1962). The evidence does not justify the giving of an instruction on false appearances, because there were none. There was no appearance of any supposed danger other than that on which the given instructions were based. This is not a case of apprehending a danger which did not in fact exist. Instruction No. 8 does not ignore, deny or withdraw appellant’s right to act on appearances. Under Instruction No. 8 appellant was entitled to act “as long as he had a reasonable fear.” Under Instruction No. 8 if in truth Mayo was warned that Trust had a gun on him; if he saw Trust’s hand go toward his belt; if he believed Trust was going after his gun to do him immediate harm; if he shot Mayo in fear and from a belief that it was necessary to do so to protect himself from immediate harm, and if his beliefs and fear were reasonable, then Mayo acted in lawful self-defense. The danger Mayo apprehended did not later turn out to be false. Under the evidence favorable to Mayo, Trust truly did have a gun; a very real, potentially lethal, loaded .45 automatic pistol, in his waistband.

Mayo further argues that the pistol was not in firing condition (based on Officer France’s testimony that there was no cartridge in the chamber) and therefore the jury may have believed Trust did not present an immediate danger to Mayo. One officer testified there was a cartridge in the chamber; the other officer testified to the contrary, after making a written report that there was a cartridge in the chamber. A cartridge is transferred from clip to chamber by pulling the top part of the weapon back, which would take only an instant. Whether there was a cartridge in the chamber or not, the gun was in fact a deadly weapon, capable of being fired almost instantly. As both parties agree, there was no obligation on Mayo’s part, prior to acting in self-defense, to inspect Trust’s weapon to determine if in fact it was loaded and in firing condition. He was entitled to act upon reasonable appearances and reasonable beliefs. Instruction No. 8 gave him that entitlement.

Mayo’s second point is that the court erred in not declaring a mistrial when Officer France testified that at one point during Mayo’s interrogation at the police station Mayo refused to talk any further and refused to make a written statement; that this reflected on Mayo’s constitutional right to remain silent, and tended to infer to the jury that his exercise of that right indicated a consciousness of guilt.

On direct examination the state’s attorney elicited from Officer France in detail the facts surrounding Mayo’s admissions that he shot Trust, including the times and places when and where Mayo made the statements; reading him his rights including the right to remain silent; circumstances showing that Mayo’s statements at the-police station were made voluntarily; the reason Trust came to appellant’s house; the threats; the reason Mayo thought Trust had a gun; the movement of Trust’s hand toward his belt; all the circumstances upon the basis of which Mayo claimed that he shot in self-defense; the exact words he used, etc. All of this came in without objection. On cross-examination of Officer France, Mayo’s counsel covered much of the same territory relating to the oral statements made by Mayo both at the scene of the shooting and later at the police station. Finally Mayo’s counsel asked Officer France whether he took a written statement from Mayo, to which the officer answered “No.” The question “Why not?” was answered, “He didn’t want to talk any more.” Mayo’s counsel repeated the question why Officer France didn’t take a written statement and again the answer was, “He didn’t want to talk any more.”

Appellant’s second point is without merit. The testimony now objected to was elicited not once but twice by appellant’s own counsel on cross-examination of the state’s witness France in answer to questions asked by appellant’s counsel. Appellant may not be heard to charge prejudice on account of testimony produced by appellant’s own counsel. Any objection to the testimony of the police officer with respect to appellant’s unwillingness to talk was waived. State v. Cooksey, 499 S.W.2d 485, 488[1, 2] (Mo.1973); State v. Barron, 465 S.W.2d 523, 526[1] (Mo.1971).

Mayo’s third point raises the question whether the state proved that a specific victim died as a result of the criminal agency of the defendant, the claim being that there was no evidence that Mayo caused the death of Steven Trust. Dr. Eugene Tucker, deputy county medical examiner, examined the body of a person and testified as to the cause of that person’s death, but Mayo claims Dr. Tucker did not indicate that the body he examined was that of Steven Trust; did not identify any photographs of Trust as pictures of the person he examined, and in referring to his autopsy report did not identify it as the report on the autopsy of Steven Trust.

The following circumstances and testimony sufficiently establish the identity of the victim as Steven Trust, prove his death and the cause of death': Officer John Easley, assigned to attend the autopsy of Steven Trust, took photographs marked State’s Exhibits 10 through 15, with the exception of one photograph (Exhibit 13) in which Officer Easley appears. These photographs were taken at the morgue during the postmortem examination, which was conducted by Dr. Tucker. John Connors identified his cousin, Steven Trust, as the person portrayed in State’s Exhibits 10, 11, 12 and 13. Dr. Tucker testified that one of the state’s exhibits pictures him handing to a police officer a bullet which he had taken from the brain of the victim he examined, and that the cause of death was gunshot wound of the head. Officer Easley testified that that exhibit shows Dr. Tucker giving Officer Easley a bullet from the body of the victim, which he earlier testified was Steven Trust.

Judgment affirmed.

SIMEONE, C. J., and ALDEN A. "‘VTOCKARD, Special Judge, concur.