author: PER CURIAM. HOLMAN, Judge

text:
    STATE of Missouri, Respondent, v. James HARRINGTON, Appellant.
    No. 59139.
    Supreme Court of Missouri, En Banc.
    March 8, 1976.

      James R. Robison, Sikeston, for appellant.
    Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.
   PER CURIAM.

James Harrington was convicted of murder in the second degree by a jury in the Circuit Court of Scott County, Missouri, in connection with the death, on September 19, 1971, of one Kenneth Ellison in front of a beer tavern in Sikeston, Missouri. Following rendition of judgment and imposition of sentence, an appeal was perfected by James Harrington to the Springfield District of the Court of Appeals, where the cause was reversed and remanded. Upon application of respondent, the cause was transferred here by order of this Court. We determine the cause “the same as on original appeal.” Mo.Const. Art. V, § 10.

The first question on this appeal is whether defendant Harrington’s trial was rendered “fundamentally unfair” (State v. Aubuchon, 381 S.W.2d 807, 814 (Mo.1964)) by reason of the State’s failure to produce, prior to trial, the substance of oral statements made by him on September 20, 1973, in Chicago, Illinois, to agents of the Federal Bureau of Investigation. The following portion of this opinion, dealing with this question, was written by Chief Judge Billings in an opinion prepared for the Springfield District of the Court of Appeals, and is adopted here, with minor changes, without quotation marks.

Following his arrest in Chicago by agents of the Federal Bureau of Investigation, the defendant was advised of his Miranda rights and signed a written waiver of these rights. Agents Kempf and Gallagher then interviewed the defendant and reduced to writing the substance of his oral statements. The FBI document included the details of the defendant’s arrest, his denial of his identity, his waiver of rights, and his statement concerning the shooting of Kenneth Ellison and flight from Sikeston to Chicago. The statement indicated the shooting was accidental.

In an interview with the defendant on December 12, 1973, counsel appointed to represent him learned of the FBI interview and defendant’s statements as to the events surrounding the shooting. The record reflects that defendant’s counsel were advised by the prosecuting attorney that a copy of any statement made by the defendant to officers would be furnished without the necessity of a formal motion under Rule 25.-195 [Repealed October 9, 1973, effective July 1, 1974. See now Rule 25.32].

The defendant was arraigned in circuit court on January 10, 1974, and entered a not guilty plea to first degree murder. At that time counsel for the defendant filed a motion under Rule 25.195 seeking copies of “all written statements and transcriptions of all recorded statements and narrative reports of all verbal statements . given by the Defendant to, or in the presence of, any law enforcement officer, relating to the charges against Defendant, or the death of Kenneth Ellison.”

In ruling the defendant’s motion, the court, inter alia, said: “I am going to sustain the motion as nearly as I can understand it . . ..” Further, the judge added, directing his remarks to the prosecuting attorney, “Within the next two or three days, [Prosecuting Attorney] is to file the names of all the witnesses, and if you have any written statements made by the defendant, copies of those.” At that time the prosecutor advised the court and defense counsel: “There may be a statement by an FBI agent in Chicago of which I was given some indication. I have made some — I have attempted to contact the FBI agent. I do not know if a statement was given; I do not know. What I understand, they did have a conversation and the name and address, of course, as best I have, I have furnished.”

On January 18, 1974, defense counsel deposed the Sheriff of Scott County. The Sheriff stated that he had seen a copy of the FBI document in the possession of the resident FBI agent during the period between the defendant’s September arrest and his November extradition.

The prosecuting attorney wrote letters to the resident agent of the FBI at Cape Gir-ardeau and to Agent Kempf on January 18, 1974, requesting a copy of the defendant’s statement. The letters noted the prosecutor was in need of the statement in order to prepare for trial on January 31, 1974, and because the State had “been instructed by the court to provide the defense with any statements made by the defendant.” The letter to Agent Kempf also advised him the State would need his testimony at the trial.

The transcript shows that on January 22, 1974, Agent Kempf was endorsed as a witness on the State’s information. At a court proceeding on January 29, 1974, the prosecuting attorney advised the court the FBI had not given him the defendant’s statement. It is undisputed that defense counsel had, prior to that date, made repeated requests of the prosecutor for a copy of the statement. The requests continued throughout the afternoon of the day before the trial, but to no avail.

Agent Kempf testified he never received a request for the defendant’s statement from the prosecuting attorney of Scott County. He said he delivered the statement to the prosecutor in the latter’s Sike-ston law office the afternoon before the trial. The prosecutor testified he did not furnish defense counsel with a copy of the statement at that time, although defense counsel’s law offices were located within short walking distance of his own office, because it “was and is my position that this was not a statement of the defendant, that this was a police report . . ..”

The defendant’s trial commenced the next day, January 31,1974. Shortly before voir dire examination of the jury panel commenced, and pursuant to the judge’s direction, a copy of the defendant’s statement was furnished to his lawyers. The court overruled the defendant’s motion that Agent Kempf be excluded from testifying as to statements of the defendant, as well as the defendant’s motion for a continuance of the case, by reason of the State’s failure to earlier furnish a copy of his statement.

Agent Kempf’s testimony covered the circumstances of the defendant’s flight from the federal officers, his apprehension and denial of his identity, and his statement describing the shooting of the deceased.

The State, in this appeal, seeks to justify the earlier non-production of the defendant’s statement and seeks to distinguish State v. Scott, 479 S.W.2d 438 (Mo. banc 1972), relied upon by the defendant. Scott is not applicable, the State argues, because in that case various factors were present which are absent in the case at bar. The length of the officer’s testimony, the incriminating nature thereof, the contemporaneous note taking of the officer, and the physical possession of the notes by the officer are urged as reasons for the ruling in Scott. The State contends the prosecuting attorney made a diligent effort to obtain the FBI document, the defendant’s statements are not lengthy nor incriminating, and, in addition, the document was not within the purview and scope of Rule 25.-195. Besides, the State says, defense counsel could have journeyed to Chicago and deposed Agent Kempf prior to trial or submitted interrogatories to the agent.

We are not impressed with the foregoing arguments. We are of the opinion that what was said in ruling Scott, supra, is equally applicable to the information sought in this case.

“ ‘We start with the premise that truth is best revealed by a decent opportunity to prepare in advance of trial. We have embraced that tenet with respect to civil litigation, and absent overriding considerations, it should be as valid in criminal matters. It is of no moment that pretrial inspection is not constitutionally assured. Cicenia v. La Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958). We are not limited to constitutional minima; rather we strive for practices which will best promote the quest for truth. It may be added that although Cicenia v. La Gay found the Fourteenth Amendment to be unoffended, yet it observed that “it may be the ‘better practice’ for the prosecution to comply with a request for inspection.” 357 U.S. at page 511, 78 S.Ct. at page 1301, 2 L.Ed.2d at page 1529.
“ ‘It is difficult to understand why a defendant should be denied pretrial inspection of his own statement in the absence of circumstances affirmatively indicating disservice to the public interest.
“ ‘If a suspect refused to give a statement unless assured a copy, it would be an injudicious prosecutor who would not agree. And if the suspect were then represented by competent counsel, that stipulation would be required. Why, then, should the State refuse a copy to the suspect who was unrepresented and uninformed?
“ ‘We must be mindful of the role of a confession. It frequently becomes the core of the State’s case. It is not uncommon for the judicial proceeding to become more of a review of what transpired at headquarters than a trial of the basic criminal event itself. No one would deny a defendant’s right thoroughly to investigate the facts of the crime to prepare for trial of that event. When a confession is given and issues surrounding it tend to displace the criminal event as the focus of the trial, there should be like opportunity to get at the facts of the substituted issue. Simple justice requires that a defendant be permitted to prepare to meet what thus looms as the critical element of the. case against him.
“ ‘The need for an opportupity to prepare to deal with a defendant’s statement must be evident. If voluntariness is in issue, the content of the confession may be revealing. Counsel would need time to explore thoroughly the truth of the factual assertions therein, to' inquire whether it contains anything more than the State knew at the time when defendant was apprehended, and to consider whether the content itself supports or negates the defendant’s claim of involuntariness. Pretrial inspection may be equally necessary even though defendant concedes he freely gave the statement. This is so because the impact of the statement upon guilt may turn upon how the facts are stated, or upon the absence of exculpatory facts which a defendant may claim were revealed to the interrogator or would have been revealed if the inquiry had been complete. In murder cases in which guilt is not disputed, the manner of expression or the omission of palliative circumstances may have additional significance because of their influence upon the jury’s determination as to punishment. Or the confession may contain prejudicial material which should be exscinded and as to which counsel should not be required to make a hurried decision in the courtroom. The possible situations may be multiplied. The virtue of the adversary approach to a trial lies precisely in the opportunity for a full and fair presentation, and hence where the State has had a unilateral examination of a defendant, he should be enabled, as far as feasible, to prepare to explore the completeness and fairness of a policeman’s or prosecutor’s development of the story in the confession.’ ” 479 S.W.2d at 442 (quoting from State v. Johnson, 28 N.J. 133, 145 A.2d 313, 315-16 (1958)).

The statement of the accused to the FBI agent that the shooting was accidental was contradictory to his trial theory of self-defense, and his account of the circumstances leading up to the shooting was at war with his trial testimony. Without the benefit of the defendant’s unilateral examination by the State, defense counsel were committed in their trial strategy to evidence in support of his self-defense plea. “ ‘Simple justice requires that a defendant [and his attorney] be permitted to prepare to meet what thus looms as the critical element of the case against him.’ ” State v. Scott, supra, 479 S.W.2d at 442.

We hold that under the circumstances of this ease the failure of the State to deliver a copy of defendant’s statement to his attorneys prior to trial was fundamentally unfair and resulted in prejudicial error. The case must be reversed and remanded for new trial.

We turn now to the question which caused us to transfer this case from the Springfield District of the Court of Appeals. It involves participation in the trial of the case by a private prosecutor, Attorney Robert A. Dempster, who was employed by Max Ellison, father of Kenneth Ellison, to help prosecute the defendant. We must deal with the question because we can anticipate such participation will be sought when the case is again brought to trial.

In State v. Camlen, 515 S.W.2d 574, 576 (Mo. banc 1974), this Court said:

“ . . .No prejudice has been demonstrated in the appearance of a private prosecutor, permitted by the trial court to assist in the prosecution. Attention is called, however, to the remarks in State v. Bockman, 251 S.W.2d 607, 609[6, 7] (Mo.1952), criticizing the custom of permitting employment of special prosecutors. The practice invites error from an excess of zeal which might well be avoided by leaving the conduct of a criminal prosecution entirely in the hands of the elected official upon whom such duty has been placed.”

We believe, and hold, that the practice of allowing private prosecutors,~employed-hy private personsr-to-paKt.icipat.e in the prosecution of criminal defendants, is inherently and fundamentally unfair, '"and that — ⅛ shourd n6T“b5^3ermttted-on retrial of this case or in any case tried after publication of this opinion in the Southwestern Reporter.

The reasons for such holding were persuasively stated by Chief Judge Billings in the opinion written for the Springfield District of the Court of Appeals, portions of which follow, and are adopted here, with minor changes, without quotation marks.

The Legislature of this State long ago enacted statutes which spell out the qualifications for public prosecutor [§ 56.010, RSMo 1969] and mandatorily direct that the prosecuting attorney “shall commence and prosecute” the criminal actions in his county [§ 56.060, RSMo 1969]. Authority is granted for the appointment of assistant prosecuting attorneys [§ 56.240, RSMo 1969] and further assistance from the state’s attorney general is made available [§ 27.030, RSMo 1969]. Provision is found for the court to appoint an attorney to prosecute if the prosecuting attorney is disqualified [§ 56.110, RSMo 1969] or sick [§ 56.120, RSMo 1969] and to fix the fee of such appointees, taxable as costs [§ 56.130, RSMo 1969]. Further, the prosecuting attorney and assistant prosecuting attorney are specifically barred by statute from accepting employment by a defendant in a criminal case “during the term of office” [§ 56.360, RSMo 1969].

Conversely, the private prosecutor need not be a resident of the county, his compensation comes from private sources rather than public funds, he is not subject to disqualification, and he is free to represent the defendant in the next criminal case on the docket.

In considering similar statutory enactments, the Supreme Court of Wisconsin declared in Biemel v. State, 71 Wis. 444, 37 N.W. 244, 245-48 (1888): who is the officer provided by the laws of the state to initiate and carry on such trials, shall be unprejudiced and unpaid except by the state, and that he shall have no private interest in such prosecution. He is an officer of the state . . . . ‘The prosecuting officer represents the public interests, which can never be promoted by the conviction of the innocent. His object, like that of the court, should be simply justice; and he has no right to sacrifice this to the pride of professional success.’ . . . [The prosecutor has a duty to present evidence favorable to the defendant]. This method of presenting a case is not that favored or pursued in civil cases, where the paid attorneys of the respective parties conduct them. And criminal cases are not likely to be so presented if the prosecution is permitted to be conducted by the paid attorneys of parties who from passion, prejudice, or even an honest belief in the guilt [sic] of the accused, are desirous of procuring his conviction.”

“We think public policy, and the fair, just, and impartial administration of the criminal law of the state, make it the duty of the courts to exclude the paid attorneys of private persons from appearing as prosecutors.
* * * * * *
“We think it is quite clear from the reading of our statutes on the subject, as well as upon public policy, that an attorney employed and paid by private parties should not be permitted either by the courts or by the prosecuting attorney to assist in the trial of such criminal cases. The laws have clearly provided that the district attorney,

In a later Wisconsin case, State v. Peterson, 195 Wis. 351, 218 N.W. 367, 369 (1928), the Court said:

“In an early day in England private parties prosecuted criminal wrongs which they suffered. They obtained an indictment from a grand jury, and it became the duty and the privilege of the person injured to provide a prosecutor at his own expense to prosecute the indicted person. Our scheme of government has changed all this. It is now deemed the better public policy to provide for the public prosecution of public wrongs without any interference on the part of private parties, although they may have been injured in a private capacity different from the general public injury that accrues to society when a crime is committed. So under our system we have private prosecution for private wrongs and public prosecution for public wrongs. Our scheme contemplates that an impartial man selected by the electors of the county shall prosecute all criminal actions in the county unbiased by desires of complaining witnesses or that of the defendant.”

This Court has recognized the_ inherent vice and potential prejudice arising from the participation' of privately retained prosecutors in the prosecution of_criminal defendants, but, nevertheless, has yet .to strike down a conviction because of a private prosecutor’s participation. The decisions have cast the burden on the defendant to allege and prove prejudice. We have come to believe that, by reason of the public policy enunciated by the Legislature, such a burden is unwarranted.

We are not unaware that in most jurisdictions private prosecutors continue to participate in public prosecutions and text authorities proclaim such practice to be the general rule. 63 Am.Jur.2d Prosecuting Attorneys § 9 (1972); 27 C.J.S. District & Prosecuting Attorneys § 28 (1959). The reasons advanced are many and diverse but the underlying assumption is that the prosecuting attorney will retain control and management of the case and presupposes the trial court will keep a watchful eye on the private prosecutor throughout the proceedings.

In “Private Prosecution — The Entrenched Anomaly”, 50 North Carolina Law Review 1171 (1972), the author discusses the conflicting roles of public and private prosecutors. Mention is made of the drastic change of the role of the public prosecutor since the inception of the doctrine permitting participation by private prosecutors. “From his sole function as procured advocate for a prosecution, the duties of the public prosecutor have taken on new dimensions. He is not an advocate in the ordinary sense of the word, but is the people’s representative, and his primary duty is not to convict but to see that justice is done. The prosecutor is an officer of the state who should have no private interest in the prosecution and who is charged with seeing that the criminal laws of the state are honestly and impartially administered, unprejudiced by any motives of private gain. It is his duty to show the whole transaction as it was, regardless of whether it tends to establish a defendant’s guilt or innocence.

“Conversely, a privately retained attorney owes his client individual allegiance, and once employed he must not act for an interest even slightly adverse to that of his client in the same general matter. Therefore, in view of the ethical and judicial restrictions imposed on the public prosecutor and the generally recognized loyalties of the private advocate, ‘private prosecutor’ is a contradiction in terms. The high standard of impartiality demanded of a prosecutor realistically cannot be expected of the private advocate.” 50 N.Car.L.Rev. at 1173 (footnotes omitted).

Our Court recognized this contradiction in State v. Moreaux, 254 Mo. 398, 409, 162 S.W. 158, 161 (1914), when the view was expressed that “they [special prosecutors] are usually employed by private individuals solely to secure a conviction, and their zeal and energies are bent to accomplish that end. This is not the sole purpose of a criminal prosecution, but a result which may, and if the accused is shown to be guilty should, follow a fair and impartial trial, always best afforded the accused when the prosecution is conducted by the state’s accredited representative, who, no matter how vigorously he may prosecute, does not, or at least should not, under his oath, lose sight of the fact that the accused is entitled to a fair trial.”

The distinction between the roles of a public prosecutor and a private prosecutor is recognized in Supreme Court Rule 4, Code of Professional Responsibility. Rule 4, EC 7-13 points out that the responsibility of a public prosecutor differs from that of the usual advocate, noting that it is the public prosecutor’s duty to seek justice, not merely to convict. Reasons are spelled out why the public prosecutor has this special duty. Rule 4, DR 7-103(B) further amplifies the duty and obligations of the public prosecutor in criminal litigation. On the other hand, Rule 4, EC 5-1, EC 5-14, EC 5-21, and EC 7-1, concerning the duties and obligations of a lawyer to his client, demand complete .loyalty to the client and his 'cause, free from the interests or desires of others.

The modern day prosecutor wields the power of the State’s investigatory force, decides whom to indict and prosecute, decides what evidence to submit to the court, negotiates the State’s position in plea bargaining and recommends punishment to the court. The entry of a private prosecutor into a criminal prosecution exposes all of these areas to prejudicial influence. We consider such exposure intolerable.

The judgment is reversed and the cause remanded.

SEILER, C. J., and MORGAN, BARD-GETT, FINCH and DONNELLY, JJ., concur.

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

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

HOLMAN, Judge

(dissenting).

I respectfully dissent. My dissent is based on the point which rules that privately employed attorneys may no longer assist prosecuting attorneys in this state.

In the first place this ruling is contrary to the general rule in this nation. In 27 C.J.S. District & Pros. Attys. § 28a, p. 711, it is said that, “ . . . special prosecutors, privately employed, are permissible if agreeable to the prosecuting attorney; and provided the district or prosecuting attorney retains control and management of a criminal prosecution, ...” and at § 29(l)(c), p. 725, it is stated that, “By the great weight of authority the court may, in its discretion, permit the prosecuting attorney to have the assistance of counsel employed by the prosecuting witness or other persons interested in securing a conviction; but such appointment, it has been held, can be made only on the request or consent of the prosecuting attorney, which, however, may be presumed from the fact of participation and assistance without objection.”

Likewise, in this state the practice has long been approved. In the early case of State v. Hamilton, 55 Mo. 520, 521 (1874) this court stated that, “There is no law in this State to prevent the employment of counsel to assist the Circuit Attorney in carrying on a prosecution. It is very often necessary to promote the ends of justice that it should be done. When counsel are engaged and take part in the conduct of a case, the peculiar position or attitude that they shall assume in reference thereto, is primarily a matter to be arranged between themselves, under the supervision and control of the trial court. It was within the discretion of the court to permit the assistant counsel to conclude the argument in the case, if the prosecuting officer waived his right to do so, and we will not attempt to revise that discretion here. . . . ”

Also, in State v. Finley, 245 Mo. 465, 150 S.W. 1051,1054 (1912) the court stated that, “Error is also assigned in the trial court’s action in permitting special counsel to conduct the examination of witnesses for the state. This assignment must also be disregarded. State v. Stark, 72 Mo. 37; State v. Coleman, 199 Mo. 120, 97 S.W. 574. The information must be preferred by the prosecuting attorney; but after that is done we see no reason why a special counsel may not conduct the trial in the same manner as the public prosecutor. He is under the eye of the court, and must conform to all the rules of the court and laws which regulate the conduct of the prosecuting attorney.” And in the more recent case of State v. Matthews, 111 S.W.2d 62, 65 (Mo.1937) Judge Westhues stated that, “If parties interested in a prosecution feel that the prosecuting attorney, elected by the people, is unable to cope with the legal talent employed by the defendant, they ought in justice be permitted to employ additional counsel at their own expense. Lawyers, after all, are sworn officers of the court and while conducting a trial are under the direct control of the trial court. How, then, can the employment of counsel in a criminal prosecution be legally prejudicial to a defendant? We see no good reason for departing from our previous rulings.”

Other cases of like import are: State v. Stark, 72 Mo. 37[1] (1880), State v. Robb, 90 Mo. 30, 2 S.W. 1[3] (1886), State v. Orrick, 106 Mo. Ill, 17 S.W. 176[8] (1891), State v. Taylor, 98 Mo. 240, 11 S.W. 570[1] (1889), State v. Coleman, 199 Mo. 112, 97 S.W. 574[9] (1906), State v. Barnes, 325 Mo. 545, 29 S.W.2d 156[9] (1930), State v. Boyer, 232 Mo. 267,134 S.W. 542[6] (1911) and State v. McCracken, 341 Mo. 697, 108 S.W.2d 372[2] (1937). While the principal opinion does not mention that any cases are being overruled thereby it seems clear that the decision overrules all of the cases (and no doubt others) that have been heretofore cited.

Great reliance seems to be placed on S.C. Rule 4-E.C. 7-13 which specifies the duties of a prosecuting attorney and his responsibilities to the defendant as well as to the public. I do not think that rule should affect this decision. When a lawyer is employed to assist the state he is probably bound by that rule. If not, it is clear that the prosecuting attorney is in absolute charge of the case and he will see to it that the rule will not be violated in connection with the prosecution of the case. The private attorney does not become the prosecuting attorney but is merely employed to assist him.

Of course, no one wants to see an innocent man convicted of a crime. By the same token good citizens do not desire to see a guilty man acquitted. Conviction of the guilty is necessary if we are to have any substantial enforcement of laws. Many courthouses have the motto inscribed thereon that, “Obedience of law is liberty.” The defendant is entitled to a fair and just trial. The state and the public are also entitled to fair and just treatment. The defendant has always been awarded many advantages in the trial of a criminal case and recent decisions have added to them. Some of these advantages are: (1) the state must prove its case beyond a reasonable doubt, (2) the defendant is presumed to be innocent, (3) the defendant is entitled to twice as many peremptory jury challenges as the state in felony cases, (4) the defendant may refuse to testify and the state cannot comment thereon, (5) if he does testify his cross-examination is restricted, (6) there are restrictions upon the use of confessions and lineups, (7) the verdict must be unanimous as distinguished from three-fourths in civil cases, and (8) prior to trial the prosecutor must disclose all of his information to the defendant which might aid him. And the decision today will add one more restriction upon the prosecution.

Many prosecuting attorneys are very able. In many areas, however, young attorneys are elected to that office just to enable them to obtain experience. It is not unusual to elect a man prosecuting attorney who has never actually tried a case. And yet he will often have to match his ability with highly skilled criminal lawyers. Under the principal opinion when that situation develops a private attorney could not be employed to assist the prosecution.

The practice of employing private counsel is rarely used in this state. I see no necessity for this court, however, to decree that the practice is absolutely outlawed. There are no doubt a few cases from time to time where assistance is necessary and desirable. This practice which has been approved in this state for more than a century should not be disturbed.


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    Ex parte William Clyde HOUSTON, Jr., Petitioner, v. Wm. J. HENNESSEY, Jr., Respondent.
    No. 36657.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Nov. 10, 1975.

      Arthur M. Schwartz, Denver, Colo., Tier-ney, Mushkin & McGuire, Thomas W. Tier-ney, Kansas City, for petitioner.
    Andrew J. Minardi, Assoc. County Counselor, Prank J. Kaveney, Clayton, for respondent.
   STEWART, Judge.

This is a proceeding in habeas corpus. Petitioner was found guilty of criminal contempt of the Circuit Court of St. Louis County by violating a temporary injunction of that court. The court sentenced petitioner to confinement in the county jail for one year and fined him $2500. For the reasons hereafter set out our writ heretofore issued is quashed.

A proceeding entitled Gene McNary v. William Clyde Houston, Dar’s Inc. d/b/a Spanish Lake Cinema et al, was commenced in the Circuit Court of St. Louis County. The petition in that action alleged that petitioners and others were displaying a movie entitled “Deep Throat” which was obscene and in violation of § 563.280 and prayed injunctive relief in accordance with § 563.285.

After an adversary hearing the court found the film to be obscene and in violation of § 563.280 and issued a temporary injunction enjoining petitioner and others “from . . . exhibiting showing or displaying to the public . the film ‘Deep Throat’, as viewed by the court, and any and all copies and duplicate originals thereof, and any and all other films entitled, ‘Deep Throat’, that publish and display substantially the same characters, scenes and dialogue contained in the film ‘Deep Throat’, as viewed by the court in this cause, and that lie within the . definition of obscenity as set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), . . .”

Neither petitioner nor the other persons enjoined sought relief from the temporary injunction. They filed no motion to dissolve the injunction and did not seek to have it modified or clarified.

On November 8,1974, some 50 days after the temporary injunction had been issued, a motion picture entitled “Deep Throat” was exhibited at the Spanish Lake Cinema under the management of petitioner. The following day contempt proceedings were initiated by the plaintiff in the injunction proceeding. An attachment and citation for contempt was issued ordering petitioner and others to show cause why they should not be adjudged in contempt for violation of the temporary injunction.

An evidentiary hearing on the show cause order was had which included a viewing of the film. At the conclusion of the hearing the court found beyond a reasonable doubt that petitioner had knowingly displayed a film entitled “Deep Throat” which contained substantially the same characters, scenes and dialogues contained in the film “Deep Throat” which was the subject of the temporary injunction. The court adjudged petitioner guilty of criminal contempt and placed him in the custody of respondent under a commitment order.

Upon application, this court issued a Writ of Habeas Corpus and admitted petitioner to bail. Respondent made a verified return to the writ in which he alleged that he held petitioner pursuant to the Commitment Order which followed the Judgment and Order entered by the court. Copies of the latter two documents were incorporated into the return. Petitioner’s answer to the return was not under the oath of the petitioner as required by Rule 91.28, thus the allegations of the return must be taken as true. Gugenhine v. Gerk, 326 Mo. 333, 31 S.W.2d 1, 2 (banc 1930). We must accept as true the fact that the film “Deep Throat” which is the subject of this action is obscene within the definition of Miller v. California, supra. The recent opinion of the Supreme Court in McNary v. Carlton, et al, 527 S.W.2d 343 (Mo.1975), is not apposite here.

Petitioner’s only direct attack upon the Judgment and Order of the court finding him guilty of contempt is that the court erred in overruling petitioner’s motion to disqualify the judge. The other contentions of petitioner are directed only at the temporary injunction. With respect to these contentions his “Points Relied On” do not fully comply with Rule 84.04(d). From his argument it seems that he assails that part of the injunction which enjoins the display of all other films which are “substantially the same” as the “film Deep Throat as viewed by the court”, as “unconstitutionally vague”, “overbroad on its face” and “an unconstitutional prior restraint of protected speech”. Petitioner focuses primarily upon the term “substantially the same”. The factual issue of whether the film shown on November 8 was substantially the same as that which was first viewed by the court is not before us for determination. That the two films were substantially the same is conceded by the pleading in this proceeding.

I

We shall first discuss petitioner’s contention that the court should have sustained petitioner’s Motion to Disqualify Judge. The motion sought a change of judge pursuant to Civil Rule 51.05 and Criminal Rule 30.12. Constitutional courts of common-law jurisdiction have inherent power to punish for contempt. The proceeding is sui generis. One court may not try a contempt against another court. Although contempts are labeled civil and criminal they are not civil actions nor prosecutions for offenses in the ordinary meaning of those terms. It has been said that no change of venue will lie. Osborne v. Pur-dome, 244 S.W.2d 1005 (Mo. banc 1951). A reading of the authorities indicates that in contempt proceedings, the term “change of venue” has not been used in the technical sense but also includes the term “disqualification of the judge”. It is apparent that neither Rule 51.05 which provides for change of judge in civil cases, nor 30.12 providing for change of judge in criminal cases, is applicable here. Rule 35.01 which governs proceedings in criminal contempt provides for disqualification of judges only in those instances where the contempt involves disrespect to or criticism of a judge. In such instances the judge may not preside except with the consent of the defendant. This proceeding does not involve disrespect to or criticism of the judge.

“The right to a change of venue, including objections to the judge, is a statutory privilege . . . ” Erhart v. Todd, 325 S.W.2d 750, 752[1] (Mo.1959). Absent a specific rule or statute, litigants in a contempt proceeding have no right to disqualify a judge. Petitioner cites no rule or statute granting him the privilege.

There is language in some of the cases to the effect that where by the nature or facts of the case the judge cannot give the accused an impartial trial, that judge should not sit but should call for another judge. Dictum in those cases states that failure to grant a change would deprive the accused of due process. The authority given for the dictum is State ex rel. McAllister v. Slate, 278 Mo. 570, 214 S.W. 85 (Mo.banc 1919). The question in McAllister was the right of the State to disqualify a judge in a criminal case. It was not a contempt proceeding. This case is governed by the general rule that, absent a special rule or statute, a petitioner in a contempt proceeding has no right to disqualify the judge.

We feel that judges are to be accorded the same presumption granted all public officers that they will faithfully carry out the duties of their offices. State ex rel. Heimburger v. Wells, 210 Mo. 601, 109 S.W. 758, 761 (1908). We are confident that judges will not undertake to preside in matters in which they will have a personal interest or where they can not be impartial.

Neither the nature of this case nor the facts distinguish it from any other case when the contemnor has violated an order of the court so as to indicate that the court could not give the accused an impartial trial. The accused on the day before the proceedings began assured the court he would be ready for trial. The motion seeking to disqualify the court came only after the case was to have commenced; it contains no allegation as to when the alleged prejudice became known to the petitioner. The court granted a request for a jury trial. Subsequently, although petitioner announced that he would stand upon his motion to disqualify the judge, he asked the judge to try the case without a jury. In personally requesting the court to try the case petitioner stated, “I am not trying to imply that I am doubtful of getting a fair [sic] trial from your Honor than from a Jury.” Under the circumstances in this case the court did not improperly deny the petitioner’s request to disqualify the judge.

II

The contentions of petitioner that the temporary injunction was unconstitutionally vague, overbroad and an unconstitutional prior restraint of protected speech are almost identical with those of petitioners in Walker et al. v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967). In Walker the State trial court had enjoined petitioners from engaging in mass sit-ins and kneel-ins and in mass parades without a permit in violation óf a city ordinance. The petitioners did not seek direct relief from the temporary injunction. After being cited for contempt petitioners “sought to attack the constitutionality of the injunction on the ground that it was vague and overbroad, and restrained free' speech.” The court expressed the opinion that the breadth and vagueness of the injunction and the underlying ordinance would be subject to substantial constitutional question. The court held, however, that the trial court that issued the injunction, as a court of equity, had jurisdiction over the petitioners and over the subject matter of the controversy; and that an order issued upon pleadings properly invoking its jurisdiction must be obeyed until it is dissolved or modified by proceedings directly attacking the injunction.

The general rule is best stated in Howat v. State of Kansas, 258 U.S. 181, at 189, 42 S.Ct. 277 at 280, 66 L.Ed. 550, at 559 (1922):

“An injunction duly issuing out of a court of general jurisdiction with equity powers, upon pleadings properly invoking its action, and served upon persons made parties .therein and within the jurisdiction, must be obeyed by them however erroneous the action of the court may be, even if the error be in the assumption of the validity of a seeming but void law going to the merits of the case. It is for the court of first instance to determine the question of the validity of the law, and until its decision is reversed for error by orderly review, either by itself or by a higher court, its orders based on its decision are to be respected, and disobedience of them is contempt of its lawful authority, to be punished.”

Walker and Howat have been cited with approval by this court in Mechanic v. Gru-ensfelder, 461 S.W.2d 298 (Mo.App.1970). In the latter case petitioners sought to raise the question of the vagueness of the injunction for the first time in a Habeas Corpus proceeding, after they had been found guilty of contempt. The court held that if petitioners were of the opinion that portions of the order were too vague the way to attack those portions was through the judicial process, not through willful disobedience of the injunction.

The principal purpose of criminal contempt is to protect the authority of the court’s decrees; it is aimed at the intentional defiance of its orders. It is 'intended to protect the judicial system and not to aid litigants. Mechanic v. Gruensfelder, supra. There seems to be a growing tendency to open defiance of the orders of our courts. In instances of open disobedience of an order, where the litigants do not initiate proceedings, the court should do so. It is not within the province of litigants to forgive a criminal contempt of the court.

The Circuit Court of St. Louis County acting as a court of equity had jurisdiction over the person of petitioner; jurisdiction to issue a temporary injunction; its jurisdiction was duly invoked by the pleadings in the case; the petitioner had knowledge of the temporary injunction; approximately 50 days elapsed without an attack being made upon the temporary injunction by petitioner before he knowingly displayed a film entitled “Deep Throat” which was substantially the same film which was the subject of the temporary injunction. The Judgment and Commitment Order were properly entered. Our Writ of Habeas Corpus heretofore issued is quashed and petitioner is remanded to the custody of respondent.

SMITH, C. J., and KELLY, J., concur.

      . All statutory references are to RSMo 1969, dicated. V.A.M.S. and V.A.M.R., unless otherwise in-

      . Osborne v. Purdome, supra; State v. Norman, 193 S.W.2d 391, (Mo.App.1946); 17 C.J.S. Contempt Sec. 66 p. 168.

      . Osborne v. Purdome, supra; State ex rel. Wendt v. Journey, 492 S.W.2d 861, 864 (Mo. App.1973).

      . There is an indication that counsel of record expected petitioner’s counsel from Colorado to be present at 2:00 on the day which petitioner requested the case set for trial. It appears from colloquy between court and counsel that the latter attorney was in court but had to return to Colorado because of a death in the family. He, however, did not enter his appearance and made no formal written request for a continuance.


author: KELLY, Judge.

text:
    Bernice BURCKHARDT, Appellant, v. GENERAL AMERICAN LIFE INSURANCE CO. et al., Respondents.
    No. 35586.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Dec. 9, 1975.
    Rehearing Denied Jan. 23, 1976.

      Mogab, Hughes & Green, Inc., Richard L. Hughes, St. Louis, for appellant.
    Kortenhof & Ely, Joseph M. Kortenhof, Frank E. Strzelec, St. Louis, for respondents.
   KELLY, Judge.

Bernice Burckhardt, plaintiff-appellant (hereinafter plaintiff), appeals from the action of the trial court sustaining separate motions of defendant-respondents, General American Life Insurance Company (hereinafter General American) and McDonnell-Douglas Corporation (hereinafter McDonnell) to dismiss her Second Amended Petition for failure to state a claim and entering judgment dismissing her petition. We reverse and remand.

Plaintiff’s Second Amended Petition was in three counts. In Count I General American is the sole defendant. Plaintiff alleged that she is the widow of Andrew Burck-hardt who, during his lifetime, had been an employee of McDonnell; that in the fall of 1968 General American began negotiations with McDonnell to enter into a group life insurance contract whereby optional additional life insurance benefits would be provided for salaried employees of McDonnell. She further alleged that although all of the terms of the group policy had not been finalized, in March of 1969 General American and McDonnell agreed to offer optional additional life insurance benefits to McDonnell’s salaried employees; that General American, in conjunction with its agent, McDonnell, prepared and submitted to her husband, Andrew Burckhardt, and other salaried employees of McDonnell, an “offering brochure” outlining the terms and conditions of the optional additional life insurance and further advised her husband and other salaried employees of McDonnell that to become members of the insurance group, membership had to be accepted by April 7, 1969, the effective date of the “new program.” The “offering brochure,” a memorandum dated March 14,1969, was attached to plaintiff’s petition, marked “Exhibit ‘A’ ” and incorporated by reference into the Second Amended Petition. This document, on a McDonnell letterhead, reads as follows:

“Memo No. JHG-150

14 March 1969

To: All Salaried Employes of MCAIR, MCAUTO, MDAC-ED and MDC Corporate Offices-St. Louis

From: J. H. Cinnater

Subject: Optional Additional Life Insurance Plan and Enrollment Therein

1. As a salaried employee, you are eligible under this new program, which becomes effective 7 April 1969, to purchase an additional amount of life insurance and accidental death and dismemberment benefits equal to the amount provided at no cost to you, by your basic program. Purchase of this additional insurance will also make you eligible for post-retirement life insurance. Your additional life and accidental death and dismemberment benefits cannot be more or less than the amount of your basic life insurance.
3.Your contribution of 66$ per thousand per month prior to retirement will be deducted in equal payments from each of the first two paychecks of the month.
3. If you retire under the McDonnell Douglas Retirement Income Plan, you will be entitled to post-retirement life insurance, provided you enroll in the additional insurance of the plan during this period. Upon retirement, 80% of the additional life insurance benefit prior to retirement will be continued; on the first anniversary of your retirement, 60% of this benefit will be continued; and beginning with the second anniversary of your retirement, 50% will be continued, which is your Lifetime Continued Amount. Your accidental death and dismemberment benefit ceases at retirement or at age 65 whichever occurs first. At retirement, your contribution of $1.50 per thousand per month based on Lifetime Continued Amount will be deducted from your monthly pension check.
4. You are urged to purchase the additional insurance made available to you.
5. The attached enrollment card should be completed indicating authorization of the deduction or rejection and returned to your supervisor promptly. No enrollment card received after 7 April 1969, will be accepted without evidence of insurability, unless you were on an authorized leave or vacation during the enrollment period. Your additional life insurance will be equal to the amount of basic life insurance shown on the enrollment card.
6. The beneficiary for your additional life insurance will be the same as on your basic life insurance. .
(signed) J. H. Cinnater
J. H. Cinnater Treasurer”

Exhibit “B”, the enrollment card, reads as follows:

MDC 245 17 APR 701”

Appellant further alleged that her husband accepted General American’s offer and thereby became a member of the insured group by signing and returning Exhibit “B” — the enrollment card — to General American or its agent McDonnell before he died and paid the required premium to General American’s agent, McDonnell; that Andrew Burckhardt died on April 13, 1969; and that she, as beneficiary under the terms of her husband’s optional additional group life contract has performed all conditions precedent to payment under the terms of the group insurance contract, “the terms of which are set out in Exhibits ‘A’ and ‘B’; ” that she has often demanded that General American pay her the principal sum due under the contract, but General American has refused and continues to refuse to pay all or any part of the $20,000.00 insurance proceeds. She prayed judgment against General American for $20,000.00 together with her costs.

Count II of plaintiff’s Second Amended Petition pled, in the alternative, and incorporated by reference all of the allegations of Count I except those contained in paragraph 5 of that Count. Plaintiff then further averred that in March of 1969 General American, acting through and in conjunction with McDonnell, its agent, and pursuant to the provisions of a draft “master” agreement with McDonnell “dated November, 1968,” offered optional additional life insurance to salaried employees of McDonnell by the “offering brochures,” Exhibit A, which set out the terms of the insurance; and directed the employees accept or reject the offer by signing Exhibit B, the enrollment card. A copy of the “draft” master agreement was attached to the petition as “Exhibit ‘C’ ” and incorporated by reference therein. Plaintiff further alleged that pursuant to the provisions of the “offering brochure” her husband accepted the offer by signing and returning the enrollment card to General American’s agent, McDonnell; that the return to work clause in the draft master agreement was never communicated to her husband nor was it mentioned in the “offering brochure; ” that General American and McDonnell, with full knowledge of the fact that her husband was then in poor health and not working, nevertheless failed and neglected to advise him that the draft of the master agreement contained a return to work clause requiring group members to return to work before becoming eligible for life insurance benefits under the contract, or that the “offering brochure” was not consistent with the draft master contract in this respect, or that although he could become a member of the insured group by accepting General American’s offer and paying the required premium, the policy benefits would nevertheless not take effect until he had returned to work; that thereby General American is estopped to raise the return to work clause as a defense to its obligation to make payment of the group benefits to plaintiff. She further alleged full performance of all conditions precedent to receiving payment under the terms of the policy, her demand for payment on a number of occasions, and the refusal of General American to pay all or any part of the principal amount of the policy, to-wit: $20,000.00, and seeks judgment in that amount from General American.

Count III of the Second Amended Petition alleged that plaintiff was the widow of Andrew Burckhardt; that he was a salaried employee of McDonnell who died on April 13, 1969; and that she was the third party beneficiary under an agreement between McDonnell and Mr. Burckhardt, the terms of which are set out in the “offering brochure” and the enrollment card which were attached to her Second Amended Petition as “Exhibits ‘A’ and ‘B’ ” and incorporated therein by reference; that McDonnell, acting as the alleged agent of General American, but in reality an undisclosed principal, “subsequently” prepared and submitted to plaintiff’s husband a proposal outlining the terms and conditions of an offer to provide life- insurance benefits for him; that McDonnell advised “decedent” that he was to accept or reject the offer by signing the enrollment card; that Mr. Burckhardt accepted McDonnell’s offer by signing and returning the enrollment card to McDonnell before he died and paid the required premium to McDonnell and that thereby McDonnell became obligated to plaintiff in accordance with the terms of the agreement in the sum of $20,000.00; that she has performed all conditions precedent to receiving payment under the policy and has demanded payment but McDonnell and General American have refused to pay all or any part of the principal amount of the policy in the amount of $20,000.00. She prayed judgment on this Count against both General American and McDonnell, jointly and severally, in the amount of $20,000.00 together with her costs.

Both defendants, General American and McDonnell, filed separate motions to dismiss Counts I, II and III of Plaintiff’s Second Amended Petition for the reason that they “fail to state a claim or cause of action upon which relief can be obtained.” The trial court sustained the motions of each of the defendants. Plaintiff filed a Motion to amend this order of the trial court or in the alternative for a new trial. The motion to amend sought to have the trial court indicate whether it was its intent to sustain the motions of defendants with or without prejudice, and if it was intended to be without prejudice to allow the plaintiff adequate time to file another amended petition. The alternative motion for new trial was on the grounds that if the order was intended to be with prejudice it deprived the plaintiff of her constitutional right to a jury trial and deprived her of her property without due process of law. These motions were argued, submitted and overruled.

On appeal plaintiff asserts that the trial court erred in sustaining the motions of each of the defendants to dismiss Counts I, II and III of her petition because “on the face of the petition all three Counts clearly state a cause of action.” The respondents contend that the trial court properly dismissed Count I of plaintiff’s petition because it is based upon plaintiff’s contention that the memorandum and enrollment card constituted the contract of insurance between plaintiff’s ■ decedent and General American, a contention, they say, that is contrary to Missouri law. With respect to the trial court’s action in sustaining their motion to dismiss Count II of plaintiff’s petition, both defendants take the position that the action of the trial court was correct because the doctrine of estoppel, relied on by plaintiff in Count II of her petition, cannot be used to create insurance coverage where it would not otherwise exist under Missouri law and because McDonnell is not the general agent for General American. With respect to Count III, the defendants contend that the trial court’s action was correct because plaintiff’s contention that McDonnell was an undisclosed principal of General American is a mere conclusion and not supported by any pleaded facts and because McDonnell was not, in fact, an undisclosed principal.

By reason of the posture in which this case comes to this court, prior to disposition of the opposing contentions here, we conclude that it is essential that we set forth the basic principles underlying the results we have reached.

This appeal emanates from a judgment of the trial court dismissing plaintiff’s petition for failure to state a claim for which relief can be had. The trial court’s ruling on a motion of this nature is ordinarily confined to the face of the petition and any exhibits referred to and incorporated therein by attaching the exhibits to the petition. McDonough v. Aylward, 500 S.W.2d 721, 722[1] (Mo.1973) Rule 55.33 and Rule 55.14. A party may plead in the alternative or hypothetically, either in one count or in separate counts, and when two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency' of one or more of the alternative statements. A party may also state as many separate claims as he has whether based on legal or equitable grounds or on both. Rule 55.12. The petition under scrutiny by reason of the attack lodged against it in the motions to dismiss for failure to state a claim must be construed liberally and favorably to the plaintiff, giving her the benefit of all inferences fairly deducible from the facts stated therein. Jaime v. Neurological Hospital Ass’n of Kansas City, 488 S.W.2d 641, 643[2] (Mo.1973). The facts alleged in the petition should be assumed to be true. Hunt v. Dallmeyer, 517 S.W.2d 720, 723[4] (Mo.App. 1974). If the facts pleaded and the reasonable inferences to be drawn therefrom, viewed most favorably from the plaintiff’s viewpoint, show any ground for relief the petition should not be dismissed. Trotter v. Sirinek, 515 S.W.2d 67[1] (Mo.App.1974). All pleadings are to be construed so as to do substantial justice, Rule 55.26. By Rule 55.12, upon the institution of her action, plaintiff may set forth statements of two claims alternatively, even though they are inconsistent, and may pursue such claims until in some effective manner she makes an election between such remedies. State ex rel. Hilleary and Partners, Ltd. v. Kelly, 448 S.W.2d 926, 931[6] (Mo.App.1969). Exhibits attached to the pleading are a part thereof “for all purposes,” Rule 55.14. In reviewing the judgment of a trial court dismissing a petition for failure to state a cause of action the reviewing court will consider all of the facts set out in the petition together with the exhibits attached thereto. Moffett v. Commerce Trust Company, 283 S.W.2d 591, 595[1] (Mo.1955), cert. denied 350 U.S. 996, 76 S.Ct. 547, 100 L.Ed. 861 (1956), reh. denied 351 U.S. 928, 76 S.Ct. 778, 100 L.Ed. 1458 (1956).

A reading of the plaintiff’s petition makes it clear that she has based her claim in each Count on what she alleges was a group insurance contract. Group insurance as it is known today is of recent origin and differs markedly from other forms of insurance. One of the features which distinguish a group insurance contract from forms of other insurance policies is that a contract of group insurance is a contract between the insurer and the employer for the benefit of the latter’s employees and the rights of the employee or his beneficiary are to be determined under the provisions of the contract between the insurer and the employer. Straub v. Crown Life Insurance, 496 S.W.2d 42, 43[1] (Mo. App.1973); Satz v. Prudential Insurance Company of America, 225 S.W.2d 480, 482[1] (Mo.App.1949). In an action upon a policy of group insurance the burden is on the plaintiff beneficiary to show that the deceased employee was insured under the policy sued upon at the time his death occurred. Satz v. Prudential Life Insurance Company of America, supra, l.c. 482[2]; Longley v. Prudential Insurance Company of America, 161 S.W.2d 27, 29[2] (Mo.App. 1942).

In Dowdy v. Lincoln National Life Insurance Company, 384 S.W.2d 282 (Mo.App. 1964) this court held, l.c. 286[7] that a count of plaintiff’s complaint against an insurance company on a group insurance policy issued to the Welfare Association of a labor union which in turn issued certain certificates of insurance under the group policy was erroneously dismissed by a trial court for failure to state a cause of action where the plaintiff alleged the existence of the policy, that she was the beneficiary thereof, the performance or waiver of conditions precedent on her part, the death of the insured, the amount of the insurance, and the fact that this amount is due and payable and has not been paid. The court, l.c. 286, said: “These are sufficient allegations to support an action upon a life insurance policy.” In McDonnell v. Hawkeye Life Ins. Co. of Des Moines, Iowa, 64 S.W.2d 748 (Mo.App.1933) the court held that to state a cause of action on a life insurance contract, the petition must allege the existence and terms of the policy, the right or interest entitling the plaintiff to sue, performance or waiver of conditions precedent, death of the insured, the amount of the insurance, and fact that it is due and payable and unpaid.

Plaintiff’s petition, in its simplest form and viewed most favorably from plaintiff’s viewpoint, assuming the facts pleaded to be true, and giving her the benefit of all inferences fairly deducible from the facts stated in her petition, alleges in Count I that McDonnell as General American’s agent, made an offer to McDonnell’s salaried employees for additional optional life insurance benefits equal to life insurance benefits already enjoyed by the salaried employees to whom the offer was made through a basic group life insurance program via the memorandum of March 14, 1969; that her husband was one of the salaried employees to whom this offer was communicated by means of the memorandum aforesaid, and that he accepted the offer by executing and returning the enrollment card which accompanied the memorandum on or prior to the deadline, April 7, 1969, thereby authorizing McDonnell to deduct from his paycheck the premium stated in the memorandum. She further alleged that McDonnell did deduct this premium from her husband’s paycheck. Her theory is that the terms of the group life insurance policy are contained within the four corners of the March 14, 1969, memorandum.

This court in Williams v. Metropolitan Life Insurance Company, 448 S.W.2d 295, 297 (1969), an action on a contract of group life insurance, said: “Insurance policies are contracts . . . ” The elements of a contract of insurance, whether written or oral, are (1) a subject matter, (2) a risk or contingency insured against, (3) the amount of the coverage, (4) the duration of the risk, and (5) the amount of the premiums to be paid for the protection afforded by the insurance contract. Chailland v. M. F. A. Mutual Insurance Co., 375 S.W.2d 78, 81[2] (Mo. banc 1964); 44 C.J.S. Insurance § 227; Couch on Insurance 2d, § 2.1. Each of these elements is present in the memorandum of March 14,1969. The subject matter of the memorandum was all salaried employees of the named corporations in St. Louis eligible for the optional additional life and accidental death and dismemberment insurance; the risk to be insured against was life and accidental death and dismemberment; the amount of the coverage was equal to the amount provided at no cost to the employee in his basic program; the duration of the risk as set out in the memorandum is for so long as the employee remains in the employment of McDonnell until he reaches retirement, when the amount of the life insurance benefits decrease by a specified percentage to a minimum of 50% of his additional life insurance, and his accident, death and dismemberment benefits terminate altogether upon retirement or upon reaching the age of 65, whichever occurs first; and the amount of the premiums are set at 66$ per thousand per month until retirement when they are increased to $1.50 per thousand per month. The memorandum announced that the “new program” became effective 7 April, 1969, and despite several references to the “basic life insurance” no statement was contained in the memorandum that the optional additional life insurance and accidental death and dismemberment benefits afforded therein were subject to any or all of the restrictions specified in the “basic program” or “basic life insurance” other than that the amount of the optional additional benefits under the “new program” was in an amount “equal to the amount provided ... by your basic program.” In this review of the trial court’s action and judgment we cannot overlook the plaintiff’s allegations that this offer was made to McDonnell’s salaried employees despite the fact that all of the terms of the group policy had not been finalized; this allegation in the posture in which this case comes before us must be taken as true.

General American contends that the memorandum and enrollment card were no more than proposals to employees to obtain such additional insurance as to which they may have been entitled. In support of this position it argues that no employee could reasonably expect that this same thirteen sentence memorandum and enrollment card constituted a contract “between two large corporations such as General American Company and McDonnell to insure the vast number of employees actively at work at McDonnell.”

In support of the first part of this argument General American relies on Hutchinson v. Metropolitan Life Insurance Co., 293 S.W.2d 307 (Mo.1956). We conclude that Hutchinson is not controlling here because there a proposal clearly stated that it was “A plan of Double Protection for Mr. Newton Hutchinson,” and that it was “only a general description of the benefits available under policies providing the protection outlined.” The proposal further stated that the terms and conditions of the benefits contemplated by the plan were set forth in detail in the policy contracts. The court also found in Hutchinson, from the evidence in the record, that his actions made it clear that he knew a policy of insurance remained to be issued before he had a binding contract of insurance. The reviewing court had before it evidence adduced at trial by the parties and was not confined to the four corners of the pleadings. We cannot agree with General American that “the thirteen sentence memo” and the enrollment card do not, as a matter of law, constitute the contract of insurance for the benefit of the deceased.

General American cites no authorities to support its argument based upon what employees of large corporations must reasonably expect concerning the length or brevity of contracts of insurance for their employees and we are not acquainted with any such cases, if they exist.

General American further argues that plaintiff contends that the memorandum and enrollment card take precedence over the master insurance contract, thereby attempting to create an ambiguity where none exists. As we have previously stated, plaintiffs averments are that there was no finalized master insurance contract in existence at the time the memorandum and enrollment card was distributed to McDonnell’s employees in March of 1969, other than those documents upon which she founds her cause of action. General American also states that the memorandum was intended to be read together with the terms of the master policy; nowhere does the memorandum so state.

In Crawford v. Mid-America Insurance Company, 488 S.W.2d 255 (1972) the Kansas City District of this court held that where, in an action on a student accident policy issued by the defendant insurer to the Putnam County R-l School District to recover damages for medical expense of a student injured on school property, the insurance application form — Special Notice to Parents — distributed to parents of children attending the school stated that coverage was afforded for participating in or attending school sponsored and supervised activities but the master policy contained more restrictive provisions extending coverage for participation in extracurricular activities under supervision of the policyholder, the policy provisions would be construed against the insurer. The court, l.c. 258, there said, in view of the student’s mother’s testimony that the application form was distributed to parents to purchase the coverage of the policy: “In such a case the modern trend of authority is that insurer will not be permitted to assert the more stringent provisions of the policy.” The court cited pocket part 13, Appleman, Insurance Law and Practice, § 7534, for the observation that: “Fortunately the courts, beginning to realize the realities of the relationship between the parties, particularly that the contract as set forth in the insurance policy often is practicably unintelligible and generally never read, whereas brochures and other material given out by the insurer are read and relied upon, are now enforcing the contract expected by the insured, that is the contract set out in the brochure or prospectus.” General American attempts to distinguish Crawford on the grounds that it did not deal with a factual situation involving a contract of insurance between the employer and an insurance company, but rather for the recovery of damages under a group insurance policy between an insurance company and the school district. Both insurance policies in Crawford and in this case are group insurance policies; if, as General American contends, the claimant in either case is bound by the terms of the master policy in conflict with the terms set out in the document — be it called a memorandum or Special Notice to Parents, — the purpose of the document in either case is the same, to-wit, to prevail upon the recipient thereof to purchase the insurance contract offered by the insurer through the master policy holder. Crawford took cognizance of the vice to be avoided, l.c. 259, where the court said: “When the ‘Special Notice to Parents’ is considered and compared to the provisions of the policy, not only is the salutary rule of the foregoing authorities and cases offended, but ambiguities as to the extent of the afforded coverage are created.”

We do concede that Crawford may be distinguished from this case on other grounds though. In Crawford plaintiff brought the cause of action on the “student accident insurance policy”. In Crawford there was no issue as to what constituted the policy of insurance; it was admittedly the master policy issued to the school district. Here, the plaintiff’s contention is that the policy of insurance is the “offering brochure” and the enrollment card and that it is on the basis of these documents she is entitled to recover. We conclude that the trial court erred in sustaining General American’s motion to dismiss Count I of plaintiffs Second Amended Petition.

Count II of plaintiff’s Second Amended Petition pleads, in the alternative, that her claim is founded on the provisions of “a draft ‘master agreement’ ” dated November 1968, which was offered to the salaried employees of McDonnell by General American through and in conjunction with McDonnell who was the agent of General American in making the offer by means of the “offering brochure” which policy was accepted by executing the enrollment card. This “draft ‘master’ agreement” was marked as Exhibit “C” and incorporated by reference in this Count of her petition. The return to work clause stated that the effective date of personal insurance was subject to a condition that if at any time during the day immediately preceding the date any insurance of an employee would otherwise first become effective he was by reason of injury or sickness unable to perform active work on a full time basis, whether or not he was scheduled to work on such preceding day, such insurance would not become effective until such time on or after the date such insurance would otherwise first become effective that he perform active work on a full-time basis. According to the terms of this policy, which was to become effective on April 7, 1969, the benefit amounts of the life insurance afforded were to be in an amount equal to the amount for which the employee was already insured under the basic Life Insurance provided under “Policy MCP-5546.” (The group policy number of the policy defendants rely on is MCP-5546-A). To avoid the impact of this clause and its effect on her claim, plaintiff averred that its presence in the “draft” of the master agreement was not communicated to her husband and was not mentioned in the “offering brochure; ” that by accepting the premium payment with knowledge that her husband was then in poor health and not working, General American waived the condition precedent stated in this clause and is therefore es-topped from raising the “return to work” clause as a defense to its obligation to pay her the benefits of the group policy.

In her brief in this court she argues that in the event the draft master proposal is deemed to have retroactive application, the right to work clause has nonetheless been waived by the action of General American or its agent McDonnell in deducting the required premium from her husband’s paycheck “with full knowledge of the fact that he was at the time not at work, but was, in fact, ill and in the hospital.” That an insurer issuing a group insurance policy can waive some conditions precedent to liability on the group insurance policy has already been decided in this State in Porter v. Equitable Life Assur. Soc. of U.S., 71 S.W.2d 766 (Mo.App.1934), where it was held that under the facts of that case the insurer had waived the necessity of the employee filing a proof of disability, including proof that she was under sixty years of age, although the court found the filing of such a proof of disability together with proof of age was a condition precedent to liability under the terms of the group insurance policy with her employer.

Whether the employer in a group insurance policy situation is, for any purpose, the agent of the insurance company issuing the group policy to the employer as Policyholder for the benefit of its employees is a question to be determined by the particular facts in each individual case. In Longley v. Prudential Insurance Co. of America, 161 S.W.2d 27 (1942) and Satz v. Prudential Insurance Company of America, supra, 225 S.W.2d l.c. 483, this court has held that where the employee had signed an authorization for the employer to withhold or deduct from the employee’s wages or pay the amount of the premium for the group insurance coverage, the employer was, for the purpose of payment of premiums at least, the agent of the employee and not of the insurer.' Here, plaintiff alleges that her husband signed an enrollment card acknowledging acceptance of the offer of the additional amount of life insurance to which he was entitled by his base rate of pay “under the group life insurance plan offered by the company” and simultaneously authorized his employer to deduct from his pay the amounts necessary for the insurance premium. We conclude that the holding of Longley and Satz are distinguishable and for that reason do not control this present case. In each of those cases the question was not whether the policyholder employer was soliciting its employees to enroll in a new program of insurance being offered optionally as additional insurance while the program was still in the negotiation stage. In Longley, the employee was killed in an automobile accident almost four months after he had last worked for the employer, having been laid off or furloughed on May 13, 1938. Between January, 1938, when he came under the coverage of the group policy, to April, 1938, deductions were made from his wages by the employer paying his premiums through May, 1938. No deduction was made from his wages for the period of time he had worked in May prior to being laid off, and he paid no premiums thereafter up to the time of his death. Plaintiff, his wife, testified that she went with him to the offices of his employer about one week pri- or to the date of the auto accident, September 19,1938, where he gave a ten dollar bill to a man and told him he was going to pay his insurance up because he was going away, and that the man said as he gave him some change, “This pays you up until October.” This testimony was refuted by the employees of the employer in charge of the group insurance at the office who testified that no such payment was made, and the records of the employer showed no payment. On Motion for Rehearing, this court in response to plaintiff’s contention that the court had decided the case on a different theory than that upon which the defendant had tried the case in the trial court, stated that the record showed that the defendant tried the case on the theory that the plaintiff wholly failed to show that plaintiff’s husband was within the coverage of the policy at the time of his death, and that plaintiff submitted her case on the theory that the mere showing that her husband paid his employer the four months premiums in arrears sufficed to bring him within the coverage of the policy. Plaintiff contended that the employer was the agent of the defendant and that the payment of premiums to it was binding on the defendant. In disposing of this contention, the court said 161 S.W.2d l.c. 30-31: “The Pullman Company was a party to the insurance contract entered into between it and the defendant. It was a party to the contract adverse to the defendant. The contract was not a contract of agency. It was a contract of insurance. As a party to the contract the Pullman Company agreed to pay defendant the whole of the premiums as they fell due on the group policy. The portion of the premium to be paid to the Pullman Company by the employee was a matter solely between the Pullman Company and the employee, and was a matter of no concern to the defendant. The obligation was on the employee to pay to the Pullman Company the portion of the premium agreed upon between them.” There was no evidence in Longley that the employer was soliciting from the employee enrollment in a group insurance policy affording optional additional insurance.

Satz, supra, on the other hand, involved a situation where the decisive issue in the case was whether Satz, as one of the employees of the master policyholder, was entitled to notice of cancellation of the group policy prior to the time such cancellation could become effective. This issue was decided contrary to his contention that the policy could not be cancelled without notice to him. Whether his employer was agent for the insurance company was not decisive in the case and came into the case on appeal only because presented to the court by reason of the trial court’s finding as a matter of fact that the employer was the agent of the insured employee in collecting the monthly premiums. Although not essential to the decision in the case, the court said, 225 S.W.2d l.c. 483: “The trial court did not err in stating as a basis for his finding that the employer was the agent of the insured in collecting premiums. When the certificate was issued to the insured, Sam Satz, he signed a card containing information required by the insurance company in connection with the group policy, which among other matters, contained the following: ‘I hereby authorize Genelle Garment, Inc. (Employer), to deduct from my wages (salary) an amount equal to my portion of the premium, the initial deduction to be .75 cents per month,’ etc. Whether or not the employer is the employee’s agent throughout the whole transaction, it is clear that in the matter of deducting his contributory part of the premium for the group policy the employee did authorize his employer to act as his agent.” Again, the court, in Satz, was not confronted with a case where the employer was soliciting participation in the group policy by its employees as here.

The employer, however, has in some instances been held to be the agent of the insurer for some purposes. In Sullivan v. John Hancock Life Ins. Co. of Boston, 110 S.W.2d 870, 874[2] (Mo.App.1937) and Coleman v. Metropolitan Life Ins. Co., 127 S.W.2d 764, 770[4] (Mo.App.1939) the employer was held to be the agent of the insurer for the purposes of receiving notice of disability required by the policy. In Adams v. Metropolitan Life Ins. Co., 228 Mo. App. 915, 74 S.W.2d 899, 901[1] (1936) the employer was held not to be the agent of the insurer for the purpose of receiving notice of disability. The cases can be distinguished on their facts and the specific provisions of the policies involved. In Adams the policy specifically provided that notice of disability had to be filed in the home office of the insured; whereas the certificate of insurance issued to the employee in Sullivan specifically provided that notice of disability be given to the employer. In Coleman the certificate of insurance provided that written notice of the injury must be given to the Company within 20 days after the date of accident causing the injury and affirmative written proof of loss furnished to the Company within 90 days after the date of loss for which the claim is made. Finding the certificate to be ambiguous with respect to any requirement that the insured himself give either notice of injury or written proof of loss directly to the insurance company, reference was made to the “Statement of Claim” furnished the employee by his employer’s timekeeper and which the insured said he filled out and returned to the timekeeper within six or seven weeks after the accident. This form instructed the employee to answer all questions under the heading “To Be Completed by Employee,” then have his own doctor complete the reverse side of the form, “and send to your employer who will forward it to the Metropolitan Life Insurance Company.” From this and other evidence the court said, 127 S.W.2d l.c. 770: “It therefore appears that the defendant company itself appointed the employer as its agent for such purposes.” In Brookshire v. Metropolitan Life Ins. Co., 56 S.W.2d 817, 819[5] (Mo.App.1937) the employer was held to be the agent for the insurer where an insurance check in payment of a claim was sent to the employer for delivery to the beneficiary of the group insurance policy.

Assuming arguendo, as General American contends, the return to work clause in its draft of the master policy controls and would, unless waived, preclude plaintiff from recovery, nevertheless, if, as plaintiff alleges, and we must at this procedural plateau accept as true, McDonnell is the agent for the purpose of soliciting its salaried employees to enroll in the new program of optional additional life insurance,

McDonnell, as soliciting agent, as a general rule has authority under Missouri law to solicit insurance, deliver policies, collect premiums and waive conditions precedent. Grady v. Hancock Mutual Life Ins. Co. of Massachusetts, 150 S.W.2d 574, 578[3] (Mo. App.1941). The rationale behind this rule is that the agency carries with it the implied authority to do everything necessary to discharge the business in hand, i. e., the solicitation of the sale of insurance. Gibson v. Texas Prudential Ins. Co., 229 Mo.App. 867, 86 S.W.2d 400, 406 (1935).

Plaintiff relies on Bohannon v. Illinois Banker’s Life Assn., 223 Mo.App. 877, 20 S.W.2d 950 (Mo.App.1929) for the proposition that the question of waiver in this case is a jury question. In Bohannon the issue was whether the insurer waived a condition contained in its application for insurance providing that the insurance was not to go into effect until after the policy had been issued and delivered to the insured “while she was in good health.” The plaintiff, the husband and beneficiary under the policy, advised the defendant’s local insurance agent at the time he delivered the policy to plaintiff that his wife had been sick since the date of the application and that she had suffered a miscarriage but was improved. The insured died shortly after the policy was delivered. The court in ruling on the waiver question said, l.c. 951[3]: “We believe the decisions establish the proposition that an insurance agent, clothed with authority to solicit insurance, collect premiums and deliver policies, may receive such notice of the breach of a condition, at the time he may deliver the policy as to bind the insurer by a waiver of such conditions.” General American would distinguish the cases on the ground that the agent in Bohannon was a “general agent” of an insurance company whereas McDonnell clearly was not. We note that the court in Bohannon did not so state; the agent there was a soliciting agent. We do not believe that we can, as a matter of law, hold on a motion to dismiss for failure to state a claim that McDonnell, who is allegedly the agent of General American for the purpose of soliciting insurance, did not have the authority to waive the condition precedent incorporated in the return to work clause of which plaintiff alleges her late husband had no knowledge.

In view of the principles mentioned supra, we conclude that the trial court erred in dismissing Count II of plaintiffs petition for failure to state a claim upon which relief might be had.

Plaintiff’s Count III of her Second Amended Petition is pled on the theory that her husband’s employer was an undisclosed principal on the insurance contract offered to its salaried employees. McDonnell argues that in alleging that it was “in reality an undisclosed principal” and failing to allege the facts to support that “conclusion” the allegations in this respect must be disregarded as a matter of law.

Plaintiff in her brief bases much of her argument on matters outside the four corners of her pleading, including among other things the deposition of the Manager of Personnel, Welfare and Records of McDonnell. As we have previously pointed out, in ruling on a motion to dismiss the trial court is ordinarily confined to the face of the petition and any exhibits referred to and incorporated therein by the filing of a copy of the exhibit to the petition. McDonough v. Aylward, supra. As in Count I of her petition, the contract of insurance alleged in Count III is the “offering brochure” and the enrollment card; no reference is made in this Count to the “draft master agreement” of November, 1968, Exhibit “C”, nor is it alleged to be the contract of insurance between plaintiff’s husband and McDonnell. McDonnell’s argument that McDonnell merely assisted General American in administering a life insurance program and that the group insurance policy was executed by General American alone goes directly in the face of plaintiff’s allegations, which, for the purpose of this motion, must be taken as true. McDonnell cites Cooper v. Metropolitan Life Insurance Co., 94 S.W.2d 1070, 1074 (Mo.App.1936) for the proposition that an employer in “this type of situation” cannot be held to be an undisclosed principal. Cooper did not involve that question at all. The issue before the appellate court in Cooper was whether the trial court erred in failing to sustain an objection to plaintiff’s counsel arguing, in his closing argument, the failure of defendant to have produced the former fellow employees of plaintiff as witnesses in the case. The portion of the opinion in Cooper cited by McDonnell has reference to a statement in plaintiff’s brief to the effect that in insurance matters the employer was to be regarded as the “alter ego” of the insurance carrier writing the group insurance policy because of the administrative details handled by the employer in relation to the group insurance. The real question was whether plaintiff’s fellow employees were so peculiarly under the control of or so available to the insurance company that they would naturally have been expected to testify favorably for the defendant and against the plaintiff. In response to plaintiff’s “alter ego” argument, the court in Cooper held that the employer was not to be regarded as the “alter ego” of the insurer by reason of the fact the employer (1) delivered the insurance certificates to its employees, (2) remitted premiums for them to the insurer, (3) gave notice to employees of the cancellation of their certificates and (4) assisted the employees in the presentation of their claims for benefits. Plaintiff’s fellow employees were, the court held, not employees of the insurer, but rather of the employer, St. Joseph Lead Company, and therefore the argument of plaintiff’s counsel was reversible error.

The critical issue presented here, both defendants contend, is whether merely alleging that the employer is an “undisclosed principal” is a conclusion or a statement of fact. Taken out of context this position might have some merit, but viewed within the totality of the facts pleaded we find it to be without any validity-

Plaintiff has sought in this Count of her Second Amended Petition to obtain a judgment against both General American and McDonnell, jointly and severally. There can be no joint and several liability between agent and undisclosed principal. It is settled law that one who has dealt with the agent of an undisclosed principal may elect to hold either the agent or, upon learning the facts, the principal, but he cannot hold both. Kraehe v. Dorsey, 432 S.W.2d 367, 371[4] (Mo.App.1968) Restatement of the Law, Agency, 2d, §§ 322, 337. The reason such an election must be made is because, unlike a personal injury action, the liability of the agent and the undisclosed principal is an alternative and not a joint liability. Therefore, while plaintiff cannot recover against both McDonnell as a principal, disclosed or otherwise, and General American, as Count III is pleaded, we conclude that she does state a cause of action against McDonnell as a principal and any allegations in this Count relative to General American can be considered mere surplusage, or, in the alternative plaintiff may at some stage of the proceedings be required to make an election before she can proceed further.

We hold, therefore, that the judgment of the trial court dismissing Counts I, II and III of plaintiff’s Second Amended Petition with prejudice constituted reversible error and the judgment must therefore be reversed and remanded for further proceedings not inconsistent with this opinion.

SMITH, C. J., and STEWART, J., concur.

      . Paragraph 5 of Count I of plaintiff’s petition was the paragraph which alleged the preparation and submission of the “offering brochure” to McDonnell’s salaried employees and her husband’s acceptance.

      . Plaintiff’s Points and Authorities also contend that “Based on the Record, Interrogatories and Deposition plaintiff is entitled to a directed verdict.” We do not consider this portion of her Points and Authorities because it goes beyond the scope of review of an appellate court in an appeal from a motion to dismiss as is stated more fully elsewhere in this opinion.

      . The numbers of the Rules of the Supreme Court cited in this opinion are the numbers assigned to them prior to September 1, 1973 and in effect at all times relative to the issues raised in this court on appeal.

      . We do not consider in ruling on this Count whether the trial court considered Exhibit “C” for the reason that it was neither referred to in this Count nor did the trial court indicate that it did consider it.

      . See: W. Meyer, Life and Health Insurance Law (1972) Ch. 23, Group Policyholder as Agent, p. 701; Eugster, Group Insurance: Agency Characterization of the Master Policy-holder, 46 Wash.L.R. 377 (1971).


author: TURNAGE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Dennis FULSOM, Appellant.
    No. KCD 27733.
    Missouri Court of Appeals, Kansas City District.
    Feb. 9, 1976.
    Motion for Rehearing and/or Transfer Denied March 3, 1976.
    Thomas M. Larson, Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Defendant was charged with murder in the first degree under Section 559.010, RSMo 1969. The State submitted the case to the jury under murder committed in connection with an attempt to rob under the same Section. By this appeal defendant seeks to have his sentence of life imprisonment set aside.

Defendant relies on two grounds; (1) there was no evidence to show he was attempting to commit a robbery, and (2) the evidence was insufficient to sustain his conviction because of conflicts in the State’s evidence. Neither ground avails defendant the relief he seeks.

Defendant was convicted of killing Claude Green in a neighborhood grocery store operated by Mr. Green. Lee LeMay, a thirteen year old boy employed by Mr. Green, who was in the store at the time, testified he saw the defendant enter Mr. Green’s store and draw a gun and point the same at Mr. Green. Lee then became frightened and hid and the next thing he heard was about three shots being fired. The defendant thereupon ran from the store. Lee, on emerging from hig hiding place, found Mr. Green’s body.

Mary Jo Mitchum was a friend of the defendant. She testified a few days after the murder she talked with the defendant. He told her he had gone into the store and asked for a pack of Kools and drew a gun on the storekeeper. When the storekeeper discovered the defendant pointing a gun at him, the storekeeper drew his gun and shot the defendant in the hand. Thereupon the defendant said he had no choice but to kill Green. When Mary Jo asked the defendant if he obtained any money, the defendant stated he got scared and ran.

Defendant first contends the evidence failed to show any attempt to rob because there was no evidence the defendant announced a holdup, or demanded any money or property, and defendant did not actually take any money or property. In making this contention defendant relies on State v. Conway, 351 Mo. 126, 171 S.W.2d 677 (1943). In Conway a filling station attendant was found dead and through fingerprints and possession of a gun shown to have been the murder weapon, it was established that Conway and his companion had been in the filing station. There was no evidence as to what occurred in the station and there was no evidence that any money of property had been taken from the station. Furthermore, when defendant and his companion were arrested shortly thereafter, there was no property found which was shown to have come from the station.

The facts of this case are different from those in Conway because here the evidence showed defendant entered the grocery store and immediately pulled a gun on the proprietor who was standing next to his cash register.

The facts in this case are very similar to those in State v. Bazadier, 362 S.W.2d 603 (Mo.1962). In Bazadier the evidence was the defendant and others entered a store and immediately started scuffling with the people there. The defendant in that case pulled a gun and shot one of the persons in the store. Thereafter one of the men entering the store was killed and others, including the defendant, fled. The argument was advanced there was an absence of evidence showing an intent on the part of the intruders to rob. In disposing of this contention, the court stated at 362 S.W.2d 606 [6,7]:

“The manner of their entry and their immediate unprovoked assault on Mr. Mock and others present are circumstances inconsistent with an inference that they intended to purchase something, visit with those present, look at the merchandise or engage in any other lawful activity. Their conduct, however, is consistent with the reasonable inference that if Mr. Mock and the others had not taken up arms against them, either by violence to the person or by placing in fear they intended to take money or property belonging to Mr. Mock. In fact, that is the only possible reasonable inference which may be drawn from their conduct, and for that reason the circumstances are inconsistent with any reasonable theory of innocence. There was sufficient evidence to support a conviction of the offense charged and of which appellant was found guilty.”

Likewise, in State v. Norris, 365 S.W.2d 501 (Mo.1963) the defendant was convicted of assault with intent to rob. The evidence there showed the defendant placed a knife at the neck of a taxi driver. No robbery was announced and no demand for money was made prior to the taxi driver driving next to a police car' and jumping out. Nonetheless, the court held the evidence was sufficient to sustain a conviction of assault with intent to rob. The court there relied upon State v. Simon, 317 Mo. 336, 295 S.W. 1076 (1927). There the court quoted from Simon at 365 S.W.2d 503:

‘"The record is entirely barren of proof of any words spoken by appellant which may be said to characterize his act as done with intent to rob rather than to commit some other felony.’ Nevertheless, holding the evidence sufficient to sustain a conviction of assault with intent to rob with malice, we said: ‘The weight of authority and indeed the dictates of common sense require us to hold in' the case at bar that the intent in the mind of appellant at the time he made the assault upon Clark was a matter peculiarly within the province of the jury to determine from all the facts and circumstances in evidence, including the words spoken by appellant. The jury had the right to find from such evidence that appellant intended to rob Clark when he jumped out of his automobile and placed his pistol against Clark’s body and commanded him to ‘get into this car.’ * * * In determining the intent of appellant, the jurors had the right to avail themselves of their own knowledge of the usual and ordinary happenings of life and to apply such knowledge to the particular facts and circumstances in evidence in the case at bar. It was for the jurors to say whether such facts and circumstances, measured by their own knowledge and experience of the affairs of life, pointed to the intent of appellant in assaulting Clark as, that of robbing him.’ ”

As in the above case, the evidence here that defendant entered the store and immediately pointed a gun at the proprietor was sufficient evidence for the jury to draw the inference that the intent of defendant was to commit a robbery and the pulling of the gun and pointing it at the storekeeper was an attempt to perpetrate this crime. As further pointed out by the above cases, the fact the defendant’s purpose was not accomplished and he actually did not obtain any money or property does not mitigate against the circumstances shown and their sufficiency to enable the jury to draw the inference as to the defendant’s intent.

It is common knowledge grocery stores keep a quantity of cash on hand representing receipts from sales and also for the purpose of making change for customers. The absence of any evidence to show any previous acquaintanceship between the defendant and Green which would show any other possible intent on the part of defendant in entering this store and immediately pulling a gun on Green, would constitute circumstances from which the jury was authorized to draw an inference that the defendant was attempting to rob Green at the time defendant killed him.

Defendant next contends the evidence was insufficient because of a difference between the testimony of LeMay and Mitchum as to whether or not defendant had a beard on the day of the murder. LeMay stated he only had a view of the right side of the defendant’s face and he was not sure whether or not defendant had a full beard when he entered the store. Mitchum stated at one time he had a full beard at the time of the crime and also stated at another point he did not.

It is stated in State v. Austin, 496 S.W.2d 799 (Mo. bane 1973) at page 804[1], “the appellate court will not weigh evidence if the verdict was supported by substantial evidence. Defects and inconsistencies, if any, in the testimony of Officer Schultz when considered with all the evidence were for the jury to resolve and the jury could properly resolve such conflicts against defendant.”

The answer to defendant’s further contention that LeMay’s identification of the defendant was faulty is also found in Austin. Defendant contends since LeMay only had a view of the right side of defendant’s face, he could not identify defendant. However, LeMay identified a picture of defendant and identified defendant from a lineup and positively identified him at the trial. No contention is made that any of these identifications by LeMay were in any way suggestive or tainted.

Since the verdict was supported by substantial evidence, these conflicts in the testimony of the witnesses was for the jury to resolve and they properly did resolve such conflicts against the defendant.

Since there is no merit in the defendant’s contentions, the judgment is affirmed.

All concur.