author: KELLY, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Murray HARRIS, Defendant-Appellant.
    No. 38749.
    Missouri Court of Appeals, St. Louis District, Division Three.
    March 7, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 10, 1978.
    Application to Transfer Denied May 9, 1978.

      See also 541 S.W.2d 686.

      Kent E. Karohl, Kirkwood, Thomas P. Howe, Clayton, David M. Korum, Kirk-wood, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Carson W. Elliff, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.
   KELLY, Judge.

Murray Harris, the appellant, was convicted by a jury in the Circuit Court of the City of St. Louis of “illegal delivery of a Schedule II Controlled Substance, phenme-trazine” and of “illegal possession of a Schedule II Controlled Substance, phenme-trazine” on September 19, 1974. The trial judge, having found that appellant had previously been convicted of a felony, — receiving earnings of a prostitute, — imposed sentences of seven and five years, respectively, in the custody of the Missouri Department of Corrections, said sentences to be served concurrently. Appellant has filed his appeal from that judgment.

The facts the jury could find from the evidence adduced at trial on behalf of the state are that on March 28,1974, at approximately 1:45 p. m. Mr. Harris was driving an automobile with three female passengers in it southwardly on Grand Avenue approaching the eastbound entrance to Interstate 44 in the City of St. Louis. At the same time and place Detectives Robert Hawkins and Gary Hayes were also proceeding southwardly over and along Grand Avenue in an unmarked police car when Detective Hawkins recognized Mr. Harris, whom he had met twelve years before. The automobile Mr. Harris was operating was in the lane immediately to the right of the lane in which the two detectives were riding in an unmarked police vehicle, and approximately one-half car length in front of the police vehicle.

Detective Hawkins pulled the police car up to the left of and within a few feet of the Harris automobile which was then stopped at a stop light while waiting for it to turn green. Mr. Harris was behind the wheel of his car, one of the female passengers was seated to his right in the front seat of the vehicle, and the other two female passengers were riding in the back seat. From this vantage point Detective Hawkins observed Mr. Harris reach to his side, pull up a hypodermic syringe containing an orangeish colored liquid, and hand it to one of the passengers in the rear seat. Detective Hayes testified that he too observed the appellant hand the syringe to one of the passengers in the rear of the Harris automobile.

At about this time the traffic light turned green and Detective Hawkins “dropped behind the Harris automobile” as it proceeded southwardly on Grand Avenue and sounded the siren on the police car. He continued following the Harris automobile for a short distance until both vehicles were able to find a place to come to a stop.

After both cars came to a stop, Detective Hawkins alighted from the police vehicle and walked up to the driver’s door where he identified himself as a police officer and asked everyone to get out of the car. After Mr. Harris and his three female passengers got out of the Harris car, Detective Hawkins advised them that they were all under arrest for violation of the Missouri Controlled Substance Law, and directed them to stand to the rear of the automobile. After Mr. Harris and his passengers did as they were directed, a search of the motor vehicle resulted in the seizure of a hypodermic syringe and an aspirin bottle wrapped in a cloth, containing a pinkish liquid in the back seat and two hypodermic syringes on the front seat, right next to where Mr. Harris had been seated, covered by a black suit coat, which was folded over the syringes. All of these hypodermic syringes when found contained an orange-colored liquid.

These items were seized and Joseph Stevens, a criminalist employed in the Crime Laboratory of the St. Louis Police Department, testified that he ran tests on the substances seized and identified the liquid substance in the syringes as phenmetrazine.

Appellant assigns seven Points as grounds for the outright reversal of his conviction, or, in the alternative, for reversal and remand for a new trial.

Because we find that appellant either did not preserve some of the Points for review on procedural grounds, or that there is no merit to his contentions, we affirm.

Appellant’s initial Point Relied On is that the trial court erred in failing to sustain his motion for judgment of acquittal at the close of all of the evidence because (1) the only physical evidence was the product of an unlawful and unconstitutional search and seizure without probable cause and was improperly admitted in evidence, and (2) the state wholly failed to prove that phenmetrazine is a Schedule II controlled substance.

Appellant has failed to incorporate into this record on appeal the testimony adduced in support of his motion to suppress the items seized from his automobile which, according to a minute entry contained in the transcript, was heard and overruled on May 6, 1974. In the absence of this evidence we are unable to review the first sub-point of this Point Relied On. It is the responsibility of the appellant to furnish to this court a complete transcript, containing those portions of the “record, proceedings and evidence necessary to the determination of all questions to be presented to the appellate court for decision.” Rules 81.12(b) and 81.-14(a) V.A.M.R. The question presented here is whether the physical evidence seized from appellant’s motor vehicle was the product of an unlawful search and seizure. To decide this question it is necessary that we have before us the record of the evidence offered by the appellant at the pretrial evidentiary hearing in support of his motion to suppress said evidence.

It is the responsibility of the appellant to furnish this court with an adequate transcript with which to review those trial errors he contends entitle him to a reversal of the judgment from which he appeals. Rule 81.12(a), V.A.M.R. His failure to furnish us with the requisite evidence in support of his motion to suppress said evidence leaves us with no alternative other than to rule this sub-point against him.

Appellant’s next sub-point is directed to an alleged failure on the part of the state to prove as a part of its case that phenmetrazine is a Schedule II controlled substance.

The state, to support this element of its case, introduced into evidence a document— State’s Exhibit No. 6 — consisting of a Certification by the Secretary of State of the State of Missouri that the pages annexed thereto contained a full, true and complete copy of “Lists of Controlled Substances and All Amendments Thereto Filed by the Division of Health of Missouri Currently in Effect as the same appears on file and of record in this office.” This Certification was dated February 7, 1974, and bore the signature of James C. Kirkpatrick, Secretary of State.

There were twenty-five pages annexed to this Certification. The first three pages consisted of a letter dated December 18, 1973, from Herbert R. Domke, M.D., Director, Missouri Division of Health, directed to James C, Kirkpatrick, Secretary of State, informing him that Methaqualone had, by order of October 4, 1973, been included in the Code of Federal Regulations, that the Division of Health did not object to the inclusion of this substance to the controlled substances list and therefore it was to be similarly controlled in Missouri, and that effective November 4, 1973, Methaqualone was to be added to the controlled substances list of September 26, 1973. In this same letter the Secretary of State was informed that on November 13,1973, an order amending the Code of Federal Regulations transferring Amobarbital, Secobarbital and Pentobarbital from Schedule III to Schedule II was published in the Federal Register; that the Division of Health did not object to this rescheduling and therefore these substances were to be similarly controlled in Missouri and changes effecting that rescheduling of the three substances to the controlled substances list of September 26,1973, should become effective on December 13, 1973. This letter concluded with a paragraph as follows:

“This information is submitted for filing with the controlled substance list and it is requested that this information be included with requests for certified copies of the controlled substances lists.”

The next page of this annexation is a second letter from Dr. Domke to the Secretary of State dated September 26, 1973, wherein is copied verbatim § 195.230 RSMo. and § 195.017, subsection 11, RSMo. The concluding paragraph to this letter reads:

“Therefore, the attached list has been prepared for filing and is hereby submitted.”

Attached to this letter is a document consisting of twenty-two pages under the heading “Schedules of Controlled Substances,” and on page 5 of this List, under Schedule II, appears “(3) Phenmetrazine and its salts.”

When the Assistant Circuit Attorney offered this Exhibit into evidence at trial, counsel for appellant interposed the following objection:

“Judge, I’m referring to State’s Exhibit 6, which is a copy from the section of the statute that is a list of the controlled substances and all the amendments thereto. Under Section 195.200, as I recall the statute, it says when something is published in the Federal Registry and if the State does not object thereto or order a hearing within thirty days, its automatically accepted by the State of Missouri. It refers to several drugs. And in this exhibit, which, of course, is a list of the controlled substances, it lists phenmetra-zine and its salts, as I read the exhibit,’ as a Schedule III Controlled Substance. There is nothing in there which shows that the Federal Register was changed. I think if you read the statute you will note that phenmetrazine, under Section [Chapter] 195, is a Schedule III Controlled Substance.
While I have no objection to the authenticity of this list, I do not think that the requirements of the statute were met, and I don’t think this follows statutory procedure.
* * * * * *
“As I said before, the Division of Health of the State of Missouri did not follow the provisions of 195, which has a certain requirement when a drug is to be changed from one category to another. I think there is here no question in the statute as it now reads to show that phenmetrazine to be a controlled substance in Schedule III, and that’s our only objection. The real objection is that there has been a failure to fulfill the requirements of the statute which would effectively make the drug a Schedule II, as contended by the prosecution.”

The trial court overruled this objection and received the Exhibit into evidence.

In his motion for Judgment of Acquittal Or, In the Alternative, For a New Trial, appellant raised this Point as follows:

“2. The State wholly failed to make a submissible case in failing to prove phen-metrazine was a Schedule II Controlled Substance, as alleged in the Amended Information; where, Section 195.-017(5)(6)(b) [(6)(2)(b)] provides that said substance is a Schedule II (sic) Controlled Substance; and where there is no proof that phenmetrazine was ever rescheduled under the provisions of Section 195.015(4), the only offer of proof in that regard being in respect of some other drug and its rescheduling and attached thereto as a part of Exhibit 6; there was no proof that the drug was designated rescheduled or deleted as a controlled substance under Federal law or that notice thereof was given to the Missouri Division of Health; that said Division similarly controlled the substance after the expiration of thirty (30) days from publication in the Federal Register of a final order designating or rescheduling the substance; or that said Division raised any objection to rescheduling or republishing the same as rescheduled.”

In his brief in this court, appellant argues that when Chapter 195 RSMo. was enacted in 1971 phenmetrazine and its salts were listed as a Schedule III Controlled Substance — Section 195.017, sub-section 6, sub-div. 2, par. b — and that when the State offered Exhibit No. 6 into evidence he objected to its admissibility on the grounds that there was no evidence that the drug phenmetrazine was ever rescheduled pursuant to the requirements of Section 195.015, sub-section 4 RSMo. Supplement 1971.

In support of this contention, appellant argues: (1) the statutes appearing in the Cumulative Supplement, 1973, p. 472, were certified to be true and correct copies of the existing laws of the State of Missouri on the 1st day of October, 1973, whereas “Exhibit Number Six, part two” purports to be the Schedules of Controlled Substances and bears the date of September 28, 1973; (2) there was no proof that the drug was rescheduled or redesignated under Federal Law, or that any other requirements for rescheduling were complied with by the Division of Health, i. e. by the Division of Health reporting the rescheduling to the General Assembly in accord with § 191.420 RSMo. 1969.

Respondent replies to this argument of the appellant that there is a strong presumption in favor of regularity in the Division of Health’s reclassification of phenme-trazine as a Schedule II controlled substance and the appellant failed to overcome this presumption by clear and convincing evidence.

With respect to appellant’s first argument, the statutes appearing in the Cumulative Supplement, 1973, are prima fa-cie evidence only of the laws of the State of Missouri as of that period. Section 3.090(2) RSMo. 1969, Protection Mutual Insurance Co. v. Kansas City, 504 S.W.2d 127, 130[2] (Mo.1974). The issue then is whether the state’s evidence overcame this prima facie evidence that phenmetrazine was, as listed in Section 195.017, sub-section 6, sub-div. 2, para, (b) Cumulative Supplement, 1973, or was, as the state contends, a Schedule II controlled substance.

Appellant makes no direct attack on the validity of the certificate under the seal of the Secretary of State to which the list of controlled substances and all amendments thereto filed by the division of health of Missouri currently in effect on file and of record in the office of the Secretary of State as of February 7, 1974, is annexed. This certificate, under the seal of the Secretary of State, was sufficient to make the document admissible in evidence under § 490.180 RSMo.1969. State v. Winters, 525 S.W.2d 417, 421[2] (Mo.App.1975).

Whether phenmetrazine is a Schedule II or a Schedule III controlled substance is a matter of law. State v. Winters, supra, l.c. 422[3]; State v. Carter, 475 S.W.2d 85, 90[5] (Mo.1972), and the court may take judicial notice of the law to the effect that phenme-trazine is a Schedule II controlled substance. Skaggs v. State of Indiana, 260 Ind. 180, 293 N.E.2d 781, 784[1] (1973).

The letter of September 26, 1973, to the Secretary of State from Dr. Domke was in compliance with the requirements of Section 195.017, sub-section 11, RSMo. Cum. Supp. 1973, that the division of health revise and republish the schedules of controlled substances semi-annually from September 28, 1971, and annually thereafter. The listing of phenmetrazine as a Schedule II controlled substance is evidence that at some time prior to that date said stimulant had been rescheduled from a Schedule III controlled substance to a Schedule II controlled substance in accord with the provisions of Section 195.015, sub-section 4 RSMo. Cum.Supp. 1973.

Notice that phenmetrazine was rescheduled from a Schedule III to a Schedule II controlled substance, effective October 28, 1971, by the Federal Director of the Bureau of Narcotics and Dangerous Drugs, under authority of 21 U.S.C. § 811, was published in 36 F.R. 20686 (1971). This action authorized the Missouri Division of Health to act under Section 195.015, sub-section 4 RSMo. Cum.Supp. 1973, and reschedule phenmetra-zine from a Schedule III controlled substance to a Schedule II controlled substance. State v. Winters, supra, 525 S.W.2d l.c. 421[1]. In the absence of any evidence that the division of health objected to this rescheduling, it became effective in this State 30 days after publication of the notice aforesaid. Appellant has not suggested that the rescheduling of phenmetrazine was changed by statute and we know of no statute invalidating this rescheduling.

In the absence of any evidence that the rescheduling of phenmetrazine as listed in the “Lists of Controlled Substances and All Amendments Thereto Filed by the Division of Health of Missouri Currently in Effect” and on file with the office of the Secretary of State as of February 7, 1974, as the certificate of the Secretary of State attests, was not legally accomplished, we hold that the trial court was not guilty of error in admitting Exhibit No. 6 into evidence and did not err in failing to sustain appellant’s motion for judgment of acquittal at the close of all of the evidence.

Appellant’s second Point Relied On, again with two sub-points, is that the trial court erred in failing to sustain his motion for judgment of acquittal at the close of all of the evidence because (1) Section 195.015 sub-section 4 RSMo. Cum.Supp. 1971 is unconstitutional because it constitutes an unlawful delegation of legislative authority to the division of health and (2) Sections 195.020 and 195.180 RSMo. Cum. Supp. 1973 are unconstitutional because “they operate together in an attempt to place upon the defendant the burden of proof of innocence and to remove from the State the burden of proof of each and every element of its case.”

Ordinarily in these circumstances we would determine whether this Point Relied On involved a question of constitutional construction and if we determined it did, we would be required to transfer the entire case to the Supreme Court because we would have no jurisdiction to decide these questions. Constitution of Missouri, 1945, Art. 5, § 11, Williams v. Williams, 498 S.W.2d 585, 587[3] (Mo.App.1973), (rev’d) other grounds, 510 S.W.2d 452 (Mo.banc 1974).

Appellant has failed to preserve these constitutional questions for review. To preserve these constitutional questions for review appellant was required to raise them at the earliest available opportunity and to state with specificity which sections of the Federal or State Constitutions he claims the statutes violate. City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, 376[6] (banc 1949); State v. Davis, 462 S.W.2d 178, 180[1] (Mo.App.1970).

When the first available opportunity to challenge the constitutionality of a statute arises for the purpose of preserving a question for review on appeal may still be open to question in this state. It has been held that where the question was raised for the first time in a motion to quash the information this requirement was satisfied. State v. Becker, 268 S.W.2d 51, 52[2] (Mo.App.1954). This same case in a later appeal, State v. Becker, 364 Mo. 1079, 272 S.W.2d 283, (Mo.1954), in denying the motion of the Attorney General to transfer the cause back to the St. Louis Court of Appeals, said l.c. 284[1]: “Defendant raised below at the first opportunity . . . that Section 563.280, supra, is violative of the due process provision of the State and Federal Constitutions . . .” In State v. Davis, 462 S.W.2d 178 (Mo.App.1970) the defendant was charged with failing to provide adequate support for his four children. At arraignment he pleaded not guilty and was granted leave to file preliminary motions. When the case was called for trial, approximately two months later, he filed a written motion to dismiss the information pursuant to the leave previously given and attacked the constitutionality of the statute under which he was charged. The trial court reserved its ruling on the motion to dismiss and ordered the trial to proceed. The cause was tried to the court without a jury and at the conclusion of the testimony of the trial court took the case under submission. Some seventy-eight days later, defendant, while the case was still under submission, filed an amended motion to dismiss in two counts. The first count repeated his claim the original motion to dismiss contained and the second Count moved to dismiss the information on the grounds that the statute under which the charge was brought violated the equal protection of the laws provision of the Fourteenth Amendment to the Constitution of the United States. The trial court overruled defendant’s amended motion to dismiss, found him guilty and sentenced him. Holding that defendant had met the requirement that the constitutionality of the statute under which he was being prosecuted be challenged at the earliest available opportunity, the court said, l.c. 180:

“Defendant’s attack on the constitutionality of § 559.353, under which he was charged, was raised by his motion and his amended motion to dismiss, filed (in effect) on the day he was arraigned and pleaded not guilty.”

In University City v. Diveley Auto Body Co., 417 S.W.2d 107, 109[5] (Mo.banc 1967) the Supreme Court held that a motion to dismiss was timely although no challenge of the constitutionality of the ordinance was raised in the municipal court and the first attack came in the circuit court at the close of the plaintiff’s case.

We conclude that appellant failed here to raise the constitutional issues at the earliest available opportunity. Appellant did not challenge the constitutionality of these statutes until after jury verdict, in paragraphs 4 and 5 of his Motion for Judgment of Acquittal or For New Trial. This court, in State v. Brown, 446 S.W.2d 498, 499[1] (Mo.App.1969) held that in a prosecution for failure to provide adequate support for six children under the age of sixteen years of age the appellant’s contention that the statute under which he was prosecuted, § 559.-353 RSMo. 1969, was unconstitutional, was not properly preserved in the trial court where no objection on constitutional grounds was made to a question propounded to the prosecuting witness, and mother of the children, whether she had any children by the appellant, and where, at the conclusion of her testimony, his counsel did not move to strike her testimony that appellant was the father of the children involved.

The holding in University City v. Diveley is inapposite here because in Diveley the attack was made during a trial de novo on constitutional grounds and at the close of plaintiff’s case. Furthermore, the case the court relied on as authority for this holding — Village of Bel-Nor v. Barnett, 358 S.W.2d 832 (Mo.1962) — demonstrates that the defendant raised the constitutional issue in the Chairman’s Court of the Village of Bel-Nor when the Village concluded its evidence. Here, defendant did not raise the constitutional question in his motion for directed verdict at the close of the state’s case. In fact, he put on evidence and thereafter, renewed his motion for directed verdict at the close of all of the evidence on the same grounds stated in the motion filed at the conclusion of the state’s case, and did not raise the point until filing his post-verdict motions. We hold defendant failed to raise the constitutional issues at the earliest available opportunity and did not therefore preserve those issues for review.

Appellant next contends that the trial court erred in failing to sustain his motion for judgment of acquittal at the close of all of the evidence as to “Count I or Count II or both” because each charge involves the same act or incident and the element of possession was common to both Counts, thereby constituting a violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 19, of the Missouri Constitution. The thrust of this argument is that each Count with which he is charged involved the same act and therefore he was charged and convicted twice of but one offense. He argues that § 195.020 RSMo. Cum.Supp. 1973, purports to establish numerous crimes: possession, dispensing, manufacturing, having under control, selling, prescribing, etc. of one of the scheduled controlled substances. His contention is that the act of delivering the syringe and its contents to one of the passengers in the Harris car at a time when he also had two syringes containing phenmetrazine lying on the car seat at his side and covered with a coat constituted but one crime.

This Point, like the preceding one, was not preserved for review because it was not raised until appellant filed his after-trial motions. We rule this Point against appellant.

Points Relied on IV and V are directed against Instructions No. 5 and No. 6 given and read to the jury. He attacks these Instructions from seven different angles.

Appellant’s initial attack against these two Instructions — Instruction No. 5 being the verdict-director for Count I and Instruction No. 6 the verdict-director for Count II — is that it was error to read them to the jury because Exhibit No. 6 was erroneously admitted into evidence and therefore there was no evidence to support the required finding that phenmetrazine was a Schedule II controlled substance and that Section 195.015, sub-section 4 RSMo. Cum. Supp. 1973 constituted an unconstitutional delegation of legislative authority. This Point is without merit because, as we have already ruled, Exhibit No. 6 was properly admitted and appellant failed to preserve the constitutional questions by timely objections.

Appellant further contends that the trial court erred in reading these Instructions to the jury because they failed to conform with the requirements of MAI-CR 14.10 in three ways:

1) both instructions failed to incorporate into the Instructions the clause “. unless you find and believe from the evidence by a preponderance thereof that the (violation) was lawful as submitted in Instruction No._
2) in failing to omit the general converse, and
3) in failing to give and read to the jury an affirmative defense instruction as required by MAI-CR 14.10.

The evidentiary basis for each of these contentions is the evidence adduced from the defendant during cross-examination by the Assistant Circuit Attorney in the defendant’s case that he was familiar with the substance phenmetrazine and had used it for his weight for “like a year” on prescription from a doctor.

Because of the presence of this evidence in the record, appellant contends that the Notes on Use to MAI-CR 14.10, paragraphs 6(a) and 6(b), have been violated.

Paragraph 6(a) to the Notes on Use following MAI-CR 14.10 requires where there is substantial evidence to support a defense, a separate instruction covering the defense must be given, whether requested or not, and paragraph 6(b) requires that the State’s verdict-director in such cases must include a clause that “Unless you find and believe from the evidence by a preponderance thereof that the (violation described) was unlawful as submitted in Instruction No.______”

The trial court, pursuant to Rule 20.02(f) V.A.M.R., after the conclusion of the evidence, held an Instruction Conference. During this conference the trial court, in chambers, informed counsel of the Instructions it proposed to read to the jury and inquired of appellant’s trial counsel if he “had anything on the Instructions.” Appellant’s counsel responded: “The defendant, at this time, objects generally to the Instructions.” The trial court then overruled said objection.

Having chosen to interpose a general objection to the trial court’s instructions at this stage of the trial it became incumbent on appellant’s counsel to make specific objections in his Motion for New Trial following the verdict of the jury if he was to preserve any error in the giving or refusal to give any instructions, for review in this court. Rule 20.03 Y.A.M.R.

Although we have scoured appellant’s Motion for New Trial we have found no specific allegation of error to support any of the contentions he now espouses.

Paragraphs 3 and 5 of appellant’s Motion for New Trial are the only paragraphs in his Motion for New Trial which we have found approach a statement of the Points now under consideration. Paragraph 3 of appellant’s Motion for New Trial reads:

“The court erred in giving and reading to the jury Instruction 5, where the evidence therein was illegally seized. There was no showing that the drug was a Schedule II Controlled Substance Under Chapter 195. There was no showing that the defendant was aware of the character of the drug or that he intentionally or knowingly distributed the same. There was no proof that the same was not subject to an exception, excuse, proviso, or exemption contained within the law, particularly where the defendant testified in answer to the State’s question that he had a legal prescription for the drug mentioned in evidence as a diet pill, contrary to § 195.180.”

Paragraph 5 is a verbatim repetition of this paragraph, the only difference being the insertion of the numeral 6 for the numeral 5 when reference is made to the Instruction under attack.

As we comprehend these allegations of error they are directed to the question whether there is sufficient evidence in the record to support the giving of these verdict-directors, not whether they are in violation of the requirements of the Notes on Use following MAI-CR 14.10. Nowhere do we find any reference to MAI-CR 14.10 and the Notes on Use; nor is there any allegation that the appellant was entitled to an instruction on the defense of lawful possession by reason of a prescription. Rather, they are all directed at alleged failure of proof. Initially, the complaint is that the Instruction should not have been read because it was based upon illegally seized evidence, which, if the logic of this assignment is followed, means that the evidence should have been suppressed and would not therefore support the giving of the Instruction. The next ground is that there was “no showing” that the drug was a Schedule II controlled substance; that defendant was aware of the charactér of the drug; or that he intentionally or knowingly distributed the drug; and finally, “There was no proof that the same was not subject to an exception, excuse, proviso, or exemption contained within the law . . . ” None of these speak in terms of the failure to give an affirmative defense instruction or a modification of MAI-CR 14.10 as required by the Notes on Use relied upon.

We rule this Point against appellant because it was not properly preserved for review in this court.

In Point V, appellant’s attack against Instruction No. 5, alone, is three pronged:

1) that § 195.020 RSMo. Cum.Supp. 1973, does not proscribe the mere delivery of phenmetrazine,
2) there is a fatal variance between the charge in the information and the Instruction, and
3) the Instruction, as given, deviated from MAI-CR 14.10 by failing to submit the charge against the defendant in language permitted and required by MAI-CR 14.10.

The thrust of appellant’s argument in support of the first attack is that Count I of the substitute information upon which he was tried charged that he did “dispense and deliver” the phenmetrazine to Naomi Jef-fords whereas the Instruction required the jury to find only that “he delivered” the drug. He argues that the word “deliver” does not appear in § 195.020 RSMo. Cum. Supp. 1973 and MAI-CR 14.10 does not permit the use of the word “deliver” in the Instruction. From this, he concludes that the Instruction authorized a conviction where there is no offense.

He further argues that there is a fatal variance between the charge and the submission because the substitute information charged him conjunctively with dispensing and delivering and the Instruction only required a finding of delivery.

His third argument is that the Instruction as given constitutes a deviation from the approved Instruction in that the word “delivered” or “delivery” does not appear in the approved Instruction, and it is therefore error.

Again, our study of the appellant’s Motion for New Trial fails to reveal any assignments of error on these grounds. Therefore, if we are to review these assignments of error we would do so only under Rule 27.20(c) as “plain error,” and then only if we concluded that manifest injustice or a miscarriage of justice had resulted therefrom.

We are of the opinion that “plain error” is not present in this case and that no error was committed by the use of the word “delivered” in the Instruction.

Section 195.010(11), as enacted, L.1971, p. 237, defined “dispense” to mean “to deliver a narcotic or controlled dangerous drug to an ultimate user or research subject by or pursuant to the lawful order of a practitioner including the prescribing, administering, packaging, labelling, or compounding necessary to prepare the substance for such delivery . . . Deliver means the actual, constructive or attempted transfer from one person to another of a controlled substance whether or not there is an agency relationship and includes a sale.” Section 195.010(8), as enacted L.1971, p. 237, defined “deliver” to mean “the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.” We are of the opinion that the word “dispense” includes “deliver.” The difference between the two is that when one dispenses a controlled substance he or she “delivers’! it “to an ultimate user or research subject, by or pursuant to the lawful order of a practitioner . . . ” as that term is defined in subsection 27 of the statute. See State v. Rollins, 449 S.W.2d 585, 590[4] (Mo.1970).

A similar argument was made by the appellant in State v. Gordon, 536 S.W.2d 811 (Mo.App.1976), but then the argument was directed to whether the appellant was sentenced under the proper statute. Appellant contended that there was no punishment provided for “distributing” a Schedule I or Schedule II controlled substance in § 195.200, sub-section 1, sub-div. (5) and therefore he should have been sentenced under the provisions of sub-div. (2) of the statute. To resolve this problem we there referred to the definitions contained in § 195.010 and concluded that the term “deliver” included the term “distribute” and ruled that there was no merit to his contention.

The variance between the wording of the instructions and the wording of the statute is not, in this case, fatal, for the reason the sense of the instructions was not destroyed by the insertion of the word “deliver” in-lieu of the word “dispense.” The former is included within the latter.

With respect to appellant’s argument that the wording of the substitute information and the Instructions must be the same, there is no requirement that they be precisely the same. State v. Barnes, 517 S.W.2d 155, 167[18] (Mo.App.1974). The one was, as we have noted, included within the other, and we believe that is sufficient.

It is not every deviation from an approved Instruction which requires reversal, and although deviations should be discouraged in all cases, even where a deviation is error the question whether it is prejudicial error remains to be judicially determined. Rule 20.02(e); State v. Billingsley, 534 S.W.2d 484, 485[2] (Mo.App.1975); State v. Vernor, 522 S.W.2d 312, 316[6] (Mo.App.1975). We conclude that even if this insertion of the word “delivered” for the word “dispensed” is a deviation and as such constituted error, it was harmless error because the Instruction as given did not tend to confuse or mislead the jury in its deliberations on the issues in this case. State v. Adams, 531 S.W.2d 763, 764[1] (Mo.App.1975); State v. Billingsley, supra, l.c. 486[4]; State v. Vernor, supra, l.c. 316[7].

The next alleged error for disposition is that the trial court was guilty of plain error in failing to submit to the jury MAI-CR 2.70.

MAI-CR 2.70 is a mandatory Instruction which the trial court is required to submit whether or not it is requested by either party in the case of a multi-count indictment or information. It provides:

“The defendant is charged with a separate offense in each Count submitted to you. Each offense and the evidence and law applicable to it should be considered separately. Any evidence which was or has been limited to one of the offenses charged or one purpose should not be considered by you as to another offense charged or for any other purpose.
“You may find the defendant guilty or not guilty on any or all of the Counts submitted against him (or you may find him not guilty by reason of a mental disease or defect excluding responsibility)-
“You should render a separate verdict as to each Count submitted against the defendant.”

Admittedly appellant has not preserved this in his Motion for New Trial, and for that reason requests that- we consider it as “plain error.”

Although by this time no omission of this kind should be tolerated, there is ample authority that where, in a case of this kind, the testimony with respect to the two offenses joined in a single indictment or information is distinct, where the trial court gave a separate converse Instruction on each of the Counts, and where the jury was given four verdict forms — two on each Count, one for not guilty and one for guilty — there was no room for the jury to intermingle the evidence and there was therefore no plain error in the failure of the trial court to submit MAI-CR 2.70. State v. Boyington, 544 S.W.2d 300, 304[6] (Mo.App.1976); State v. Johnson, 537 S.W.2d 816, 820[14] (Mo.App.1976).

The testimony here with respect to the two Counts was distinct. As to Count I, the police officers testified that they observed the appellant passing a syringe with what proved to phenmetrazine to a young female passenger in the back seat of appellant’s automobile in broad daylight. With respect to Count II, the testimony was that there were two syringes concealed in the folds of a coat belonging to the appellant which was found immediately adjacent to where he had been seated as he was operating his automobile over and along South ■ Grand Avenue. The jury was read separate Instructions with reference to each Count, and each Instruction had a proper converse paragraph. The jury was also furnished four verdict forms; two for each Count; one for a finding of guilt on Count I, one for a finding of not guilty on Count I, one for a finding of guilt on Count II, and one for a finding of not guilty on Count II.

We have also studied the argument of the Assistant Circuit Attorney and have discerned that he, in his argument, referred to Instructions Nos. 5 and 6 and the fact that they were referable to separate Counts. He also argued the specific evidence he concluded supported a conviction on each Count. The jury returned separate verdict forms signed by its forelady, wherein it declared that it found appellant guilty of each Count, and also returned unsigned the two not guilty verdict forms.

We conclude that under these circumstances there is no evidence of manifest injustice nor miscarriage of justice and we rule this Point against appellant.

Appellant’s final Point is that the trial court erred in overruling his objections to the prosecutor’s cross-examination of the defendant beyond the scope of his direct examination and thereby permitted prejudicial evidence to be admitted.

The evidence of which appellant complains under this Point relates to questions directed to the appellant as to whether he was familiar with and had previously used phenmetrazine, and whether syringes had ever been kept in his house.

When cross-examination outside the scope of a defendant’s direct examination constitutes prejudicial error has troubled the appellate courts. Cross-examination on matters beyond the scope of a defendant’s direct examination is generally prohibited because it is considered to be violative of § 546.260 RSMo.1969, the statute which removed the common law prohibition against a defendant testifying in a criminal cause or prosecution and specifically provided that where a defendant testified in his own behalf he “shall be liable to cross-examination, ‘as to any matter referred to in his examination in chief, . . .’” State v. McClinton, 418 S.W.2d 55, 59[5] (Mo.1967). The case law of this state is clear, however, that when a defendant chooses to offer himself as a witness in his own case and in doing so merely testifies to a general denial of the charge during his examination in chief, the prosecution is not limited to a mere reiteration of matters covered on direct, but may cover all matters within the purview of the examination in chief. State v. Holland, 530 S.W.2d 730, 734[7] (Mo.App.1975). In general, the cases hold that the permissible extent of cross-examination in a criminal case where the defendant testifies is largely a matter of discretion with the trial court. State v. Richardson, 515 S.W.2d 557, 562[6] (Mo.banc 1974). Whether cross-examination in such case is error, has generally been decided on a case by case basis. State v. McClinton, supra, 418 S.W.2d l.c. 59[6],

Here appellant’s testimony in chief consists of four pages of the transcript on appeal. After identifying himself and stating his occupation, his testimony related to the occurrence of March 28, 1974 on South Grand Avenue and the arrest which took place there. He denied knowledge that there were any syringes or narcotics in his car and that he handed a syringe to Naomi Jeffords at that time as the police officers had testified they had observed. On cross-examination the following colloquy took place:

“Q. . . . You testified there was some syringes in the car; is that right?
A. In her baby bag.
Q. Are you familiar with syringes?
A. I have never used a syringe in my life.
Q. Have you ever had a syringe in your house or over at 5417 Arsenal?
MR. HOWE: Wait a minute. That’s outside the scope of the direct testimony. I would object to that.
THE COURT: Overruled.
A. I have a brother.
Q. Have you ever had a syringe in your house?
A. I’m not going to answer the question.
Q. My question is: Have you ever had any syringes in your house, over at 5417 Arsenal?
THE COURT: Do you understand the question, sir?
A. Yes. The question is, has there been syringes in my house. Yes, sir.”

We believe, when viewed in context, there is no abuse of discretion here which would warrant a reversal.

Appellant, in his examination in chief, testified to the presence of syringes in the baby diaper bag of Ms. Jeffords which, according to his testimony, he first became aware of when the police detectives seized them during the search of his automobile. No objection was lodged when appellant was asked if he was familiar with syringes; it was not until he was asked if he ever had a syringe in his house on Arsenal Street that an objection was made. After the objection was overruled, he refused to answer the question and even his answer after the Court’s inquiry is equivocal and did not clearly constitute an answer to the question.

When an improper question is asked but not answered, there generally is no prejudicial error. State v. Holland, supra, l.c. 733[4]. Immediately after the last answer quoted hereinabove, the line of inquiry was directed by the Assistant Circuit Attorney to the contents of the syringes found in appellant’s car at the time of the arrest. Any error occasioned by the posing of the question did not ripen into prejudicial error because the question was never unequivocally answered.

We rule this Point against the appellant.

Judgment affirmed.

GUNN, P. J. and WEIER, J., concur.

APPENDIX

“INSTRUCTION NO. 5

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:

First, that on March 28,1974, in the City of St. Louis, State of Missouri, the defendant delivered a drug known as phenmetra-zine, and

Second, that defendant was aware of the character of the drug, and intentionally and knowingly delivered it, then you will find the defendant guilty under Count I of delivery of a Controlled Substance.

However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.

(MAI-CR 14.10, by the State)

INSTRUCTION NO. 6

As to Count II, if you find and believe from the evidence beyond a reasonable doubt:

First, that on March 28, 1974, in the City of St. Louis, State of Missouri, the defendant had in his possession a drug known as phenmetrazine, and

Second, that the defendant was aware of the character of the drug and intentionally and knowingly had it in his possession, then you will find the defendant guilty under Count II of the possession of a Controlled Substance.

However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.

(MAI-CR 14.10, by the State)”

      . This same case was before this court once before. See: State v. Harris, 541 S.W.2d 686.

      . For the instructions given see Appendix at the end of this opinion.


source: Caselaw Access Project

author: FLANIGAN, Judge.

license: Public Domain

text:
    Ronald Bruce ROGERS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10637.
    Missouri Court of Appeals, Springfield District.
    March 30, 1978.
    James F. DeNeen, Joplin, for movant-ap-pellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

Movant Ronald Bruce Rogers appeals from a denial, after evidentiary hearing, of his Rule 27.26 motion to set aside a judgment and sentence for murder in the second degree. The slaying took place on July 15, 1976.

The original information charged movant with the offense of capital murder. On the date of the offense the statute defining capital murder was § 559.005 (RSMo Supp.1975).

On November 30, 1976, movant and his attorney William Fleischaker appeared before the Circuit Court of Jasper County. On that date the state filed an amended information which reduced the charge to murder in the second degree. Defendant entered a plea of guilty to the reduced charge and was sentenced to life imprisonment.

The hearing on the Rule 27.26 motion was held on February 9, 1977. Thereafter the court made findings of fact and conclusions of law, as required by Rule 27.26(i), and denied the motion.

On this appeal movant asserts that he was entitled to relief on his motion (and that the trial court erred in denying same) because movant’s attorney Fleischaker was “inadequate,” thereby tainting the plea. Movant bases his complaint of counsel’s inadequacy on three grounds, each of which is particularized in a “point relied on.” Those points are: (1) counsel failed to inform the sentencing judge of “mitigating circumstances”; (2) counsel failed to file an application for change of venue; and (3) counsel failed to advise movant that a life sentence was “a real substantial possibility.”

Inasmuch as the judgment and sentence are based upon a plea of guilty, the issue of counsel’s adequacy is material only to the extent that it bears on the voluntariness and understanding of the plea. Barylski v. State, 473 S.W.2d 399, 401[1] (Mo.1971); Bennett v. State, 549 S.W.2d 585, 587[4] (Mo.App.1977).

At least one answer to point (1) is that it has no factual support. Each of the “mitigating circumstances” to which mov-ant alludes was brought to the attention of the sentencing judge on November 30, 1976 and prior to the sentencing. Among the trial court’s findings in denying the Rule 27.26 motion is the following: “The court states that it was indeed aware of movant’s so-called mitigating facts and circumstances surrounding the homicide and made its decision to impose a life sentence based on all facts presented.” This court has reviewed the record of the guilty plea hearing and the record of the motion hearing. The quoted finding is not “clearly erroneous,” Rule 27.26(j), and indeed is fully supported by those records. Point (1) has no merit.

With respect to point (2), attorney Fleischaker, testifying on behalf of movant at the motion hearing, stated that he and movant had discussed at length the matter of applying for a change of venue. Fleisch-aker pointed out to movant that such an application might not be successful. Fleischaker and movant also discussed the fact that if the application were successful, the case might be sent to a county where the atmosphere might be less favorable to movant than that of Jasper County in view of the “racial factor.” Fleischaker further stated that he and movant decided not to apply for a change of venue and that the decision “was a strategic one, based on the fact that at least in the defense of his case we hoped we might get some racially prejudiced people on the jury.” Fleischaker also testified that movant did not want to undergo a trial on the charge of capital murder and he was willing to enter a plea of guilty to murder in the second degree in order to avoid such a trial.

In Beeman v. State, 502 S.W.2d 254 (Mo.1973), an accused entered a plea of guilty to a charge of first degree murder and was sentenced to life imprisonment. In a subsequent proceeding under Rule 27.26 he claimed his plea was tainted by counsel’s failure to obtain a change of venue. Counsel had in fact made an oral application for a change of venue which was denied, the judge suggesting that a formal application be made. Counsel conducted an investigation into the matter but failed to file a formal application.

At p. 256 the court said:

“Whether the matter should have been further pursued by counsel after the court’s denial of the oral application for a change of venue and after counsel’s investigation revealed no existing prejudice, was a matter of trial tactics and a matter resting within his conscience. ... In this situation, in which it appears that trial by jury was not contemplated and a plea of guilty was intended, it is difficult to see how or in what manner failure of counsel to obtain a change of venue from the inhabitants of Miller County could possibly have prejudicially affected appellant’s rights. Appellant has failed to show resulting prejudice. . . . There is no claim that the Judge of the Circuit Court of Miller County was prejudiced against him, or that he could not obtain a fair hearing of his plea of guilty in that county; no proof of prejudice resulting from the failure of counsel to obtain a change of venue.”

The trial court, in the case at bar, found that “the matter of change of venue was discussed between movant and his attorney, not only as to the possible success of such a motion, but also if successful the problem of where the case would be transferred; that the movant was aware of the problems involved and agreed as a matter of strategy not to apply for such a change. The decision not to apply for a change of venue was not manifestly wrong and should not be the basis for setting aside this conviction. Mace v. State of Missouri, 452 S.W.2d 130 (Mo.1970). Again, the movant was a very intelligent and aware individual, and the court would consider it highly unlikely that he would have just gone along with his attorney in this regard without question.”

There is no merit in movant’s contention that he was not given effective representation, and that his plea was thereby tainted, on the basis of counsel’s failure to apply for a change of venue. The trial court’s finding in this respect is not “clearly erroneous.” Point (2) has no merit.

With respect to point (3), attorney Fleischaker testified, and the trial court found, that Fleischaker fully informed mov-ant with respect to the statutory range of punishments for murder in the second degree. It is true that Fleischaker told mov-ant that it was Fleischaker’s opinion that “the judge would give him something less than life.” Fleischaker also stated: “I told him, however, that it was totally within the realm of possibility that the judge would give a life sentence. I was as surprised as [movant] when the judge took the action he did but I certainly had told [movant] of the possibility that that might take place.” Movant himself testified that Fleischaker had informed him that a life sentence was within the statutory range.

On the day of the sentencing, and prior to the entry of the plea, movant had executed a “plea form” on which he acknowledged that Fleischaker had “made no promises or statements as to what the court would do on a plea.” Under questioning by the court, prior to the acceptance of the plea, movant reiterated that fact. The court also informed movant pf the range of punishments.

The trial court found, and the record supports the finding, that prior to the entry of the plea movant was fully informed of the range of possible punishments. Although movant and his counsel may have indulged in ho'peful speculation that the actual punishment would be something less than a life sentence, the trial court properly found that there was no “specific assurance,” emanating from attorney Fleisehaker or from anyone else, that a lesser punishment than a life sentence would be imposed. See State v. Rose, 440 S.W.2d 441, 445[5] (Mo.1969); Mick v. State, 487 S.W.2d 452, 454[1, 2] (Mo.1972); Abrams v. State, 521 S.W.2d 177, 180[4-7] (Mo.App.1975). As stated in Abrams, “A disappointed hope of a lesser sentence than that actually received does not render a plea involuntary.”

Mr. Fleischaker had informed movant of the statutory range of punishments and had told him that a life sentence was “totally within the realm of possibility.” Movant complains of counsel’s failure to inform him that such a sentence was “a real substantial possibility.” The advice which was given was accurate and adequate. That advice was not rendered inadequate by counsel’s mere expectation, also communicated to movant, that a lesser sentence would be imposed nor by counsel’s omission to characterize, by mathematical odds or appropriate adjectives, the likelihood of the actual sentence. Point (3) has no merit.

The judgment is affirmed.

All concur.

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1969, V.A.M.S.

      . In State v. Duren, 547 S.W.2d 476 (Mo. banc 1977) the court held, at p. 480, that § 559.005, defining “capital murder,” and § 559.009 (RSMo Supp.1975) “failfed] to provide a constitutionally acceptable procedure in Missouri for imposition of the death penalty.” However, the court also held that § 559.011 (RSMo Supp.1975) “is a viable statute” and that prosecution may be had under § 559.005 with punishment as specified in § 559.011. See also State v. Keet, 547 S.W.2d 481 (Mo. banc 1977) and State v. Burkart, 548 S.W.2d 550 (Mo. banc 1977). Section 559.011 provided, in essence, that if the death penalty for capital murder be held unconstitutional, as it was in Duren, all killings included in the definition of capital murder would be deemed murder in the first degree, requiring, when construed with § 559.-009, para. 3., a punishment of life imprisonment plus non-eligibility for probation or parole until service of a minimum of 50 years of the sentence.
      The statutes mentioned above in this footnote were repealed in 1977. (H.B. No. 90 § A, effective May 26, 1977). For current murder statutes see § 565.001 et seq. (RSMo Supp.1977).

      . Rule 30.04 and § 545.490 provide that, in a county such as Jasper County, the defendant seeking a change of venue must prove the truth of his allegations of prejudice by competent evidence and the state is authorized to offer rebutting evidence. When that procedure is followed, the granting of a change of venue is a matter within the discretion of the trial court and its ruling is not to be disturbed on appeal unless an abuse of discretion is demonstrated. State v. Parcel, 546 S.W.2d 571, 574[11] (Mo.App.1977). See also State v. Odom, 369 S.W.2d 173 (Mo. banc 1963).

      . The victim was a black man; movant is a white man.

      . “Appellant’s second point is that his plea of guilty was induced by fear of an unconstitutional punishment, to wit, the death penalty, amounting to coercion so as to render the plea involuntary, and he was thereby deprived of due process and equal protection of the laws. ‘It is now well settled that a plea of guilty is not invalid merely because it is entered to avoid the possibility of a death penalty. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747. And that is so, even though defendant is unwilling to admit participation in the crime. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162.’ ” Beeman v. State, 502 S.W.2d 254, 25512, 3] (Mo.1973).


author: TITUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James Delbert FINGERS, Jr., Defendant-Appellant.
    No. 10661.
    Missouri Court of Appeals, Springfield District.
    March 31, 1978.

      John D. Ashcroft, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    J. Miles Sweeney, Johnson & Sweeney, Springfield, for defendant-appellant.
   TITUS, Judge.

Defendant was initially charged with having committed the felony (§ 556.020) of robbery in the first degree. §§ 560.120 and 560.135. He was represented by appointed counsel and admitted to bail. When defendant was arraigned on the robbery charge April 22, 1976, in the Circuit Court of Greene County, his trial was set for June 7, 1976, but defendant did not appear for trial. Thereafter the 24-year-old defendant was charged with failure to appear at the robbery trial as denounced by § 544.665-1(1). With different appointed counsel and jury waived, defendant was court-tried and found guilty of failure to appear. Defendant’s motion for a new trial was denied and he was sentenced to imprisonment for a term of four years with credit of 267 days spent in prison or jail awaiting trial.

On appeal, defendant’s first point relied on is: “The [trial] court erred in allowing defendant’s attorney [appointed to represent him on the robbery charge] to testify about conversations between himself and defendant on May 25, 1976 since such conversations were privileged communications between attorney and client.” Albeit this point is written heedless of the requirements of Rule 84.04(d), we will consider it in light of the following background and that portion of § 491.060 which reads: “The following persons shall be incompetent to testify: ... (3) An attorney, concerning any communication made to him by his client in that relation, or his advice thereon, without the consent of such client; . . .” (Our emphasis).

From the time of arraignment on April 22 (when defendant was advised of his trial setting for June 7) until May 25, defendant’s counsel did not see or hear from defendant. During this period counsel wrote to defendant on May 14 and May 19 and several times contacted defendant’s wife and defendant’s bondsman in an effort to converse with defendant or ascertain his whereabouts. Defendant had not paid the bondsman who, as could be expected, was also interested in finding defendant.

On May 25, after first making telephone contact, defendant and his father appeared at the lawyer’s office where the three of them conferred. Defendant’s objections that any testimony by counsel relative to this meeting would violate the attorney-client privilege were overruled because, so the trial court opined, the presence and hearing of a third person (defendant’s father) destroyed the attorney-client privilege.

Defendant’s attorney on the robbery charge testified under subpoena, in substance, that during the May 25 conference he iterated that defendant’s trial was set for June 7; that he did not tell defendant or defendant’s father he would seek a continuance (although, in fact, he subsequently did) but rather told them “that in my opinion the court would not grant us a continuance;” and, contrary to suggestions otherwise, he denied having indicated “to defendant or his father that [defendant] need not show up for the trial date on June 7, 1976.” While substantive matters concerning the case were admittedly discussed at the meeting on May 25, what advice was given on these matters and what was said by anyone regarding them was not asked of nor revealed by the lawyer.

It is too general and inaccurate to say that all communications between counsel and client are privileged. To be privileged the communication must relate to attorney-client business and not to extraneous matters. In re Busse’s Estate, 332 Ill.App. 258, 75 N.E.2d 36, 40[5] (1947). It is likewise overly broad to declare that the attorney-client privilege is destroyed because the attorney-client communications were made in the presence and hearing of third persons. There is no destruction of the privilege by' reason of the presence of a third person if the circumstances surrounding or necessitating the presence may be such that the communication still retains its confidential character and the attending privilege. Jayne v. Bateman, 191 Okl. 272, 129 P.2d 188, 191[2] (1942). If the third person present is the confidential agent of either the attorney or the client the privilege is not destroyed. McCaffrey v. Estate of Brennan, 533 S.W.2d 264, 267-268[5] (Mo.App.1976); 81 Am.Jur.2d, Witnesses, § 188, at p. 224; 97 C.J.S. Witnesses’ § 290, at pp. 819-820. However, the presence of third persons, be they relatives or friends of the client, who are not essential to the transmission of information or whose presence is not reasonably necessary for the protection of the client’s interests, will belie the necessary element of confidentiality and vitiate the attorney-client privilege. Hearn v. Rhay, 68 F.R.D. 574, 579[9] (E.D.Wash.1975); McCormick on Evidence 2d Ed. (Hornbook Series) Ch. 10, at p. 189.

That the cause was set for trial on June 7 and that defendant’s attendance on that date was expected, were routine matters not in the nature of confidential communications arising from the attorney-client relationship. United States v. Hail, 346 F.2d 875, 882[6] (2d Cir. 1965), cert. denied 382 U.S. 910, 86 S.Ct. 250, 15 L.Ed.2d 161. These were facts concerning which defendant had been advised in open court and matters of public record that could be readily ascertained by any interested person. United States v. United Shoe Machinery Corporation, 89 F.Supp. 357, 359[5] (D.Mass.1950). Recounting that defendant had been told the trial was scheduled for June 7 and that counsel did not believe a continuance could be obtained did not breach any confidence which the privilege is designed to protect. Furthermore, the presence of defendant’s father at the May 25 conference under the circumstances shown, served to invalidate the attorney-client privilege. There was no suggestion that the father was a confidential agent of the defendant, that his presence was reasonably necessary or intended to aid or protect the defendant’s interests, or that the father’s attendance at the conference was required for any reason which would instill confidentiality into the meeting.

Defendant’s second point: “The [trial] court erred in admitting State’s Exhibits 5 & 8, which were letters sent from [defendant’s attorney on the robbery charge] to appellant for the reason that such letters were privileged communications between attorney and client and for the further reason that there was insufficient foundation to show that defendant had received them or they had ever been mailed; and lacking such foundation, they were irrelevant to the issue of appellant’s alleged intention to not appear.”

Exhibit 8, a letter dated May 19 written by the attorney for defendant and addressed to defendant at his Springfield address (with a copy to the bondsman), contained a reminder that the trial on the robbery charge was set for June 7. The writing also advised defendant of the forthcoming docket call and stressed the importance that defendant contact the lawyer. Exhibit 5, a letter written by counsel under date of June 8, was addressed to defendant, with copies to the circuit clerk and to defendant at his mother’s address. The letter advised that because of defendant’s failure to appear at the robbery trial the court had issued a capias warrant for defendant’s arrest and forfeited his bond, that the prosecutor had filed a felony complaint charging defendant with failure to appear and that there would be no trial resetting on the robbery charge until defendant was in custody. Counsel also correctly advised of the range of punishment for failure to appear and said if defendant desired to voluntarily surrender or had any “good or legal reason” for failure to appear he should advise the attorney at once.

We hold that the admission of Exhibits 5 and 8 into evidence did not permit disclosure of privileged communications between attorney and client. To be privileged, writings which constitute a communication between attorney and client must equate to the general requirements of other privileged communications. Therefore, when the letters contained mere recitations of facts accessible to others or ascertainable from the public court records and constituted a simple transmission of these matters and where the attorney’s knowledge derived from sources other than the defendant, the communications were not privileged. Cranston v. Stewart, 184 Kan. 99, 334 P.2d 337, 341[6] (1959); 97 C.J.S. Witnesses § 2831, at p. 807; 81 Am.Jur.2d, Witnesses, § 203, pp. 236-237.

As to the last portion of defendant’s second point we find no reversible error. Even assuming, arguendo, that the trial court erred in admitting the two letters into evidence because “there was insufficient foundation to show that defendant had received them or they had even been mailed,” it is firmly established that admission of improper evidence is generally harmless if the facts attempted to be shown are fully and properly provided by other acceptable evidence. State v. Starkey, 536 S.W.2d 858, 864[4] (Mo.App.1976); State v. Kennedy, 513 S.W.2d 697, 700[4] (Mo.App.1974). As previously demonstrated, the matters contained in the two letters were otherwise fully and properly provided by other evidence and the information contained in Exhibit 8 was proved to have been relayed to defendant in his tete-a-tete with counsel on May 25.

Defendant’s third point: “The court erred in admitting State’s Exhibit 5 and also in admitting the testimony of [defendant’s bondsman on the robbery charge] as to his conduct and defendant’s conduct after June 7,1976, these things being irrelevant in view of the fact that defendant was charged with failure to appear on June 7th only.” We disagree with this assertion. As previously noted a copy of Exhibit 5, supra, was sent to defendant in care of his mother’s St. Louis address on the day after defendant failed to appear on the robbery charge. The mother telephoned the attorney the day after the letter had been posted and acknowledged its receipt. Defendant’s father testified defendant had been residing with his mother “until just the day before [the bondsman first] came” to St. Louis seeking defendant after his failure to appear. The bondsman recounted that he ultimately located defendant in a St. Louis cafe a short distance from the mother’s home. This evidence and the testimony of the bondsman relative to his efforts to locate defendant subsequent to his failure to appear at the robbery trial “tended to establish that defendant’s failure to appear was deliberate and willful, the result of a plan or design to evade incarceration. We consider it relevant .... [c]f. State v. Musick, 101 Mo. 260, 271-272, 14 S.W. 212, 214-215 (1890).” State v. Adams, 532 S.W.2d 524, 530[17] (Mo.App.1976).

Defendant’s fourth point: “The court erred in returning a verdict against defendant since there was insufficient evidence to prove defendant guilty beyond a reasonable doubt, in that: A. He did not leave the state. B. He communicated with his attorney close to the date of trial. C. His failure of communication with his bondsman could be explained by the dispute over the bond premium. D. There was evidence that defendant’s attorney directed defendant to leave town and not to return until instructed to do so.”

This final point presents nothing for appellate review because it is proffered shorn of all citation of authority. In such a case the point is deemed to have been waived or abandoned. State v. Halliburton, 531 S.W.2d 554, 556[5] (Mo.App.1975). Another reason the point has not been preserved is that it was not contained in the motion for new trial. State v. Perryman, 520 S.W.2d 126, 132[15] (Mo.App.1975). Albeit the point and its parts are not for consideration on appeal, we make the following abbreviated observations. The assertion that defendant did not leave the state has no factual foundation and proof cannot be bottomed solely on statements appearing in an appellant’s brief. State v. Robinson, 484 S.W.2d 186, 188[8] (Mo.1972); Gonseth v. K & K Oil Company, 439 S.W.2d 18, 25[12] (Mo.App.1969). The fact that defendant communicated with his attorney close to trial date and failed to communicate with his bondsman for whatever reason, does not constitute any justification for his failure to appear when his case was set for trial. While defendant’s father stated that counsel had advised defendant to leave Springfield and not to return until instructed otherwise, this assertion was diametrically opposed to the testimony of the attorney. It is apparent the trial court chose to believe the lawyer’s account. In a court-tried criminal case determination of the credibility of witnesses is a matter for the trial court and it is not within the province of an appellate court to pass on their credibility. State v. Hall, 525 S.W.2d 364, 365[2, 3] (Mo.App.1975).

The judgment is affirmed.

All concur.

      . References to statutes and rules are to RSMo, V.A.M.S., and to Missouri Supreme Court Rules of Civil Procedure, V.A.M.R.

      . Sec. 544.665-1(1): “In addition to the forfeiture any security which was given or pledged for his release, any person who, having been released pursuant to sections 544.040 to 544.-665, or upon a recognizance or bond pursuant to any other provisions of law, willfully fails to appear before any court or judicial officer as required shall be guilty of an offense and punished as follows: (1) If arrested for or charged with a felony, by a fine of not more than five thousand dollars or imprisoned for not more than five years;”.


author: PRITCHARD, Judge.

text:
    Avis L. HULET, Appellant, v. H. T. MARTENSEN, Jr., Respondent.
    No. KCD 28094.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.

      Jerry Conkling, Kansas City, for appellant.

      John C. Monica, Kansas City, for respondent; Shook, Hardy & Bacon, Kansas City, of counsel.
   PRITCHARD, Judge.

This is an appeal from the decree of the trial court dissolving a partnership. Because appellant attacks certain aspects of the finding of facts and the decree, it will be here paraphrased:

The parties entered into a partnership agreement in 1958, which provided that the partners were to be equal and profits and losses would be shared equally by them. The partnership continued until May 31, 1972, at which time it was dissolved. Each partner contributed equally in money and property, and was entitled to draw equal amounts. Appellant drew $2,563.00 more than respondent from 1958 to 1962; and from 1962 to May 31, 1972, appellant drew $16,463.00 more than respondent. The net worth of the partnership assets as of May 31, 1972, was $115,778.00. Each partner took a musical instrument and removed it, they being of equal value and should be set off as the property of the partner possessing same. A truck owned by the partnership on May 31, 1972, remains as a partnership asset. Appellant has now converted many partnership assets to her own use, and has continued the partnership business after its dissolution. Respondent is entitled to recover from appellant 50% of the value of the partnership as of the date of dissolution, and 50% of appellant’s excess draws from 1958 to May 31, 1972, and interest at 6% from May 31, 1972, in the amount of $11,896.35. Judgment was entered for respondent against appellant consisting of: $67,402.00, which is 50% of the value of the partnership assets as of the date of dissolution, and 50% of appellant’s excess draw, plus interest, $11,896.35, a total of $79,-298.35.

During the pendency of this appeal, the suggestion of the death of respondent was filed, and Geraldine Martensen as executrix of his estate was ordered substituted.

The business of the partnership consisted of the selling and renting of musical instruments, appellant being the managing partner. It was dissolved by respondent on or about May 31, 1972, by his notification to appellant that he was dissolving it, he then demanding an accounting. Appellant does not question the computations of dollar amounts found by the trial court, but only certain procedures which were employed or which she says were improperly not used. Point I is “The trial court erred in failing to provide for distribution of partnership assets in accordance with Section 358.400 RSMo 1969.” The point does not say why and wherein the court erred, but as nearly as may be gleaned from the argument, the complaint is that the court erred: in failing to find the extent of partnership liabilities to creditors other than partners; in failing to distribute the truck found to remain a partnership asset; in failing to distribute the inventory, bank deposits and other partnership property; and in failing to apply partnership assets in satisfaction of the partnership liabilities in accordance with § 358.400(2), RSMo 1969.

As noted, the court found the net worth of the partnership to be $115,778.00. That amount is not questioned by appellant. Adverting to the testimony of respondent’s C.P.A. witness, William E. Mangold, it is found that in computing the net worth of the partnership, he took into account assets and liabilities, the latter figure including the extent of partnership liabilities to creditors other than partners. Appellant’s account witness, Jesse Wallace, likewise testified that in arriving at net worth, the accounts payable were subtracted from assets. From this testimony, it is obvious that the trial court found these liabilities.

The court did not expressly distribute the truck, but found “that the truck owned by the partnership on May 31, 1972, remains a partnership asset.” Again, the testimony of Mangold shows that the truck was included as an asset (cost $2,000.00, less depreciation $843.00, equalling $1,157.00). The court divided the net worth, as, found, between the parties equally, and this necessarily included the value of the truck; Because the court gave a money judgment to respondent rather than ordering its liquidation as by sale of assets, there was error in not setting off the truck to appellant, respondent having received an accounting (by judgment) of his one-half interest therein.

The court did not err in failing to distribute the inventory, bank deposits and further partnership property for the reason that appellant, after respondent’s notification of dissolution and demand for an accounting, continued the business and appropriated to herself respondent’s interest, and her overdraws. In such case, a money judgment, in lieu of winding up the partnership by sale or distribution of assets, is proper. See Schoeller v. Schoeller, 465 S.W.2d 648, 654-655 (Mo.App.1971); and Smith v. Kennebeck, 502 S.W.2d 290, 293[3] (Mo.1973); where, as here, there was not a valid winding up of the partnership, but instead a continuation of the business without plaintiff’s consent. Cited and quoted is Crane and Bromberg Law of Partnership § 86: “ ‘The situation changes if the business is not wound up, but continued, whether with or without agreement. In either case, the noncontinuing partner (or his representative) has a first election between two basic alternatives, either of which can be enforced in an action for an accounting. He can force a liquidation, taking his part of the proceeds and thus sharing in profits and losses after dissolution. Alternatively, he can permit the business to continue (or accept the fact that it has continued) and claim as a creditor (though subordinate to outside creditors) the value of his interest at dissolution. This gives him a participation in all values at dissolution, including asset appreciation and good will, and means he is unaffected by later changes in those values. If he takes the latter route, he has a second election to receiver in addition either interest (presumably at the local legal rate) or profits from date of dissolution.’ ” See also Annotations, 80 A.L.R. 12, 75; 55 A.L.R.2d 1391, 1420; and 1 Rowley on Partnership, § 42.3, p. 811, et seq. The state of Kansas, where this partnership business was conducted, accords with the rule that a personal judgment for the value of a partnership interest, where the business is continued after dissolution, may be given. Apple v. Smith, 106 Kan. 717, 190 P. 8, 10 (1920). Although the dissolution here occurred before Kansas adopted the Uniform Partnership Act in 1972, the right to have as an ordinary creditor an amount equal in value to the interest of a retiring partner, with optional interest, was codified in § 56-342, K.S.A. [L.1972, ch. 210, § 42; July 1], The comparable Missouri statute is § 358.420, RSMo 1969. Moreover, under Kansas law, respondent was entitled to one-half the amount of overdraws taken by appellant, Lord v. Anderson, 16 Kan. 185 (1876).

Lastly, under Point I, appellant contends that the court erred in failing to apply partnership assets in satisfaction of partnership liabilities in accordance with § 358.400(2), RSMo 1969. As noted, the court in arriving at the partnership’s net worth took into account its liabilities. It is apparent that § 358.400 applies only to situations calling for winding up of a partnership after dissolution, and that statute has no application where after dissolution the remaining partner continues the business without authority. Stein v. Jung, 492 S.W.2d 139 (Mo.App.1973), cited by appellant, does not aid her as defendant Jung elected to receive a division of profits after dissolution and during the winding up of that partnership.

By Point II, appellant asserts that the trial court erred in restricting the accounting and evidence adduced thereon to the determined date of dissolution. Apparently, the parties are in agreement that the dissolution date was on or about May 31, 1972. At trial, appellant herself objected to any post dissolution evidence. She now says that there was error in not receiving evidence during the life of the partnership down to and including the winding up of the business, citing again Stein v. Jung, supra. Because the business was continued solely by appellant after dissolution, evidence occurring thereafter was not relevant since respondent elected to receive his share and interest thereon as of the date of dissolution, not profits occurring thereafter. Besides, the record shows that the court permitted appellant’s evidence of her financial condition after the dissolution on several occasions. Point II is without merit.

Appellant contends that the court erred in entering a personal judgment against her (Point III). Under the cases above cited as to Point I, the entry of the judgment was proper. The Kennebeck case, supra, holds that the non-continuing partner may permit the business to continue and claim as a creditor, though subordinate to outside creditors. By so electing, respondent remains liable for unpaid partnership liabilities under § 358.360. That section is no bar to respondent’s election right. Point III is overruled.

Lastly, by Point IV, appellant contends that the court erred in awarding respondent interest against her upon his interest in the partnership and upon the amounts found to be her overdraws. Again, the Kennebeck rule governs. See also Turner v. Otis, 30 Kan. 1, 1 P. 19, 25 (1883), holding that a partner who continues the business after dissolution and is found to have wrongfully obtained property, is liable for interest on the amount charged to him.

No erroneous declaration or application of the law appears. Murphy v. Carron, 536 S.W.2d 30, 32[1-3] (Mo. banc 1976).

The judgment is affirmed, except that it is modified and remanded with directions to set off the partnership truck to appellant.

All concur.


text:
    V. S. DiCARLO GENERAL CONTRACTORS, INC., et al., Plaintiffs-Respondents, v. KANSAS CITY AREA TRANSPORTATION AUTHORITY OF the KANSAS CITY AREA TRANSPORTATION DISTRICT et al., Defendants-Respondents, and Sharp Bros. Contracting Company and L. D. White Construction Company, Inc., Individually and d/b/a Sharp/White, a joint venture, Defendants-Appellants.
    No. KCD 28235.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.

      Thomas J. Leittem, John H. Altergott, Jr., Jeffrey A. Dunn, Kansas City, for defendants-appellants.
    Norman 0. Sanders, Kansas City, for plaintiff s-respondents.
    Before WELBORN, Special Judge Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
   ROBERT R. WELBORN, Special Judge Presiding.

This action began as a suit for declaratory judgment and injunction brought by Y. S. DiCarlo General Contractors, Inc., and Vernon L. Brown as joint venturers (DiCar-lo), seeking to have their bid on a construction project by the Kansas City Area Transportation Authority (KCATA) declared to be the lowest and best bid on the project, to require KCATA to enter into a contract for the job with DiCarlo and to enjoin the KCATA from contracting with any other bidder on the project. Other bidders, including Sharp Bros. Contracting Company and L. D. White Construction Company; Inc., a joint venture d/b/a “Sharp/White,” were parties defendant as was Mary H. Hayes, Director of the Department of Human Relations of the City of Kansas City.

Upon trial to the court, a decree was entered setting aside the award of the contract to Sharp/White and ordering KCATA to reconsider the bids and determine which contractor was the “lowest responsive bidder” and to enter into a contract with such contractor. Sharp/White have appealed.

KCATA is a governmental entity, organized by way of a compact between the States of Missouri (§ 238.010, et seq., RSMo 1969) and Kansas (KSA 12-2524, et seq. (1975)) to provide mass transit in the greater Kansas City area. KCATA planned to construct a general offices and central services facility in Kansas City. 80% of the funding for the project was to be provided by the Urban Mass Transit Authority (UMTA) of the United States Department of Transportation. The project was advertised for bids to be received and opened at 2:00 P.M., February 5, 1975. Among the requirements of the bidding proposal was that contractors submit in their bid documents evidence of intention to comply with affirmative action goals for employment of minority workers on the project. The KCATA affirmative action program involved setting aside for minority subcontractors eight designated areas of work on the project. Bids were required to include as part of the bid documents an affidavit from the bidder, setting out the name of the minority subcontractor with which the contractor would contract for various areas of the job and the estimated dollar value of the work in such areas so to be awarded.

UMTA had designated the Department of Human Relations of the City of Kansas City as its monitoring agency for compliance with federal minority regulations. That agency was also in charge of the locally ordained minority hiring program. Mary Hayes Walker was the Director of the Department of Human Relations.

Four general contractors submitted bids on the project (UMTA Project No. IT-03— 0020). The bids were opened and the gross amounts of each bid read as follows:

J. E. Dunn, Jr. & Associates $9,825,200.00
Sharp/White $9,696,727.00
DiCarlo/Brown $9,487,700.00
Thomas Construction Company $9,320,000.00

The bids were studied by the architects and turned over to KCATA. Upon concluding that the Thomas bid was the lowest bid, the bid materials submitted by Thomas to evidence affirmative action compliance were referred to Ms. Hayes to determine whether or not Thomas’s bid was responsive to the requirement that the contractor submit an adequate Affirmative Action Assurance Plan. Ms. Hayes determined that the Thomas bid was unresponsive because Thomas had designated as a subcontractor for the electrical work, one of the set-aside areas, a non-minority contractor. Thomas requested permission to substitute a minority contractor, but after discussion with the architects, after receiving an opinion of an assistant city counselor and after discussion with KCATA attorneys, Ms. Hayes concluded that substitution after submission of the bid was not permissible.

KCATA, nevertheless, passed a resolution for award of the contract to Thomas. UMTA refused to concur in the award because the bid was not responsive to the affirmative action requirement.

KCATA then submitted the DiCarlo Affirmative Action Assurance to Ms. Hayes. She found the information submitted by that bidder unresponsive because the listed electrical subcontractor was a non-minority contractor.

Ms. Hayes examined the Sharp/White program and found it responsive. UMTA was so advised and on March 20, 1975, UMTA informed KCATA that UMTA would concur only in an award of the contract to Sharp/White, or alternatively that all bids should be rejected and the project readvertised. On the same date the KCA-TA commissioners passed a resolution for the award of the contract to Sharp/White.

DiCarlo filed its lawsuit on March 13, 1975. By its original petition it attacked the refusal of Hayes to find the DiCarlo bid responsive. Subsequently, DiCarlo filed an amended petition alleging deficiencies in Sharp/White’s proposal. Two individual DiCarlos joined the action as taxpayers.

Dunn as a contractor and taxpayer asked the court to enjoin issuance of any contract except to Dunn. Sharp/White moved to dismiss plaintiffs’ petition and Dunn’s counterclaim on the ground that the court had no jurisdiction of the cause and that the parties plaintiff had no standing to sue. The motion to dismiss was overruled.

By their answer Sharp/White restated the position that plaintiffs as unsuccessful bidders had no standing to sue. They also attacked the claim of plaintiffs as taxpayers and asserted that the UMTA was a necessary party to the litigation.

KCATA filed a general denial and also attacked plaintiffs’ standing to sue. Ms. Hayes also filed a general denial.

On July 15, 1975, KCATA signed a contract with Sharp/White for construction of the building.

This case came to trial on July 21, 1975. On that date, Sharp/White filed a counterclaim against DiCarlo, Dunn and Thomas, charging tortious interference with proposed and existing contractual relations of Sharp/White. It alleged damage of at least $80,000 per month by reason of rising construction costs. The trial court sustained objection to trial of the counterclaim and ordered it tried separately.

The case proceeded to trial. On August 13, 1975, the trial court entered its judgment in which it found, among other things, that the action of Ms. Hayes in “rejecting” the bids of Thomas and DiCarlo was illegal, arbitrary and beyond her authority, that the right to refuse bids was given exclusively to KCATA and that Ms. Hayes’s actions prevented KCATA from selecting the lowest and best bidder. The court voided the contract with Sharp/White and remanded the matter to KCATA to determine which of the four bidders was the lowest responsive bidder and for execution of a contract with such contractor. ¡1

On August 28, 1975, Sharp/White filed a voluntary dismissal, without prejudice, of its counterclaim. On August 29, 1975, Sharp/White filed notice of appeal to this court.

The respondent Thomas has filed a motion to dismiss the appeal on numerous grounds, one of which is that the cause has become moot. In support of that motion, Thomas has presented the following additional facts, not contested by appellant.

Contemporaneously with the action in the Jackson County Circuit Court, the unsuccessful bidders filed a protest with the Comptroller General of the United States, complaining of the rejection of their bids and the acceptance of the Sharp/White bid. On August 11, 1975, the Deputy Comptroller rendered a decision in which he concluded that the Thomas bid had been improperly rejected. He recommended that Thomas be allowed to substitute an acceptable electrical subcontractor, and if thereafter the Thomas bid is found responsive and Thomas responsible, UMTA should advise KCATA that the contract with Sharp/White be terminated and that an award be made to Thomas.

This recommendation was followed. On August 18, 1975, UMTA withdrew its concurrence in the contract award to Sharp/White and concurred in the award of the contract to Thomas which had been voted by the KCATA commissioners on August 15. Appellants acknowledged that at the time of the filing of their brief (November 26,1976), the project was 85% complete. Respondent estimated that the stage was 95% at the time of its motion (January 24, 1977). Unquestionably the project has now been substantially, if not finally, completed.

On the basis of these facts, Thomas moved for dismissal of the appeal on the grounds of mootness. Appellants acknowledge that a decision now cannot alter the fact that the project has been built. Appellants would have the appeal decided in order to “allow Sharp/White the opportunity to sue those of the plaintiffs and other defendants, as it chooses, for breach of contract, tortious interference with contractual relations, and other relief.”

In the case of State ex rel. Myers v. Shinnick, 19 S.W.2d 676, 678[1, 2] (Mo.1929), the court stated:

“Courts are not organized and maintained for the purpose of vindicating the actions of parties in bringing lawsuits or to settle abstract propositions of law, where no relief can be granted. That some relief is sought which may be granted is the only reason the courts recognize for the prosecution of causes. If no relief can be granted, either because it appears that such relief has already been obtained, or because the situation has so changed that the relief sought cannot be granted, the court will not go through the empty formality of determining whether or not the relief asked for might have been granted, if it had not already been granted or could have been granted but for changed conditions. The case is then said to be ‘moot.’ ”

In Koch v. Board of Regents, 265 S.W.2d 421 (Mo.App.1954), an injunction was sought to declare void a contract entered into by the Board of Regents for the restoration of a building on the campus of Northwest Missouri State College which had been partially destroyed by fire. The trial court sustained motions to dismiss the petition. The plaintiffs appealed. Defendants moved to dismiss the appeal on the grounds that the matter had become moot because, after the appeal had been taken, the contract had been fully performed and all payments thereunder had been duly paid. This court sustained the motion to dismiss the appeal because the cause had become moot.

That is the situation in this case. There can be no grant of effectual relief as sought by appellants in this cause.

Appellants’ argument that favorable determination of the appeal would permit an action for damages does not negative the mootness of the case now before this court in which no such relief is sought. That a party might, if successful on appeal, bring another action for damages does not avoid mootness. In Personal Finance Co. of Missouri v. Day, 158 S.W.2d 197, 198[1] (Mo.App.1942), the court stated:

“The fact that the taxation of cost is involved and defendant says he wishes to bring suit for malicious prosecution in case he is able to have the decree of the lower court reversed does not make the controversy any the less moot. See authorities first cited.”

This ease was transferred to the Supreme Court which agreed with the opinion in the Court of Appeals. The court stated: “The motion to dismiss should be sustained for the reasons stated in the opinion of the Kansas City Court of Appeals reported in 158 S.W.2d 197.” Personal Finance Co. of Missouri v. Day, 349 Mo. 1139, 164 S.W.2d 273, 274[2] (1942).

In the case of Morrison v. State, 252 S.W.2d 97, 100[2] (Mo.App.1952), this court, in refusing to dismiss a cause as moot, considered the possibility that decision of the cause might clarify the right of the parties in a future suit for damages. There were other considerations in that case, including public interest and possibility of recurrence of the question, recognized reasons for refusing to dispose of an appeal for mootness. The court stated that it reached its conclusion on the authority of People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769 (1952). However, the Illinois court did not consider the effect on future damage suits between the parties in concluding that the case before it was not moot. 104 N.E.2d 772-773. Possible future damage suits are too conjectural to require determination of a case in which no grant of relief is possible.

The motions of Thomas and KCATA to dismiss the appeal for failure of appellants’ brief to comply with the rules are overruled. The motion of Thomas for damages for a frivolous appeal is overruled. The motions of Thomas and KCATA to dismiss the appeal for mootness are sustained.

Appeal dismissed.

All concur.