author: KELLY, Judge.

text:
    Clara Ann MALONE et al., Plaintiffs-Appellants, v. Martin E. SHEETS, Jr., et al., Defendants-Respondents.
    No. 38161.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 29, 1978.

      Marshall, Littman & Ragland, Richard M. Marshall, Clayton, for plaintiffs-appellants.
    Patrick M. Fiandaca, III, Steiner & Fen-Ion, Joseph A. Fenlon, Jr., Clayton, for defendants-respondents.
   KELLY, Judge.

This is an appeal from a judgment of the Circuit Court of St. Louis County in a statutory will contest action wherein the contested will was held to be the Last Will and Testament of Ollie Edith Sheets, deceased. On appeal, the appellants — the contestants in the trial court — claim that the judgment for the respondents — the contestees in the trial court — should be reversed and a judgment entered by this court holding that the will in question was not the Last Will and Testament of Ollie Edith Sheets, deceased, because the making of the will was procured by the undue influence of one of the proponents, Martin E. Sheets, Jr.

The “Points Relied On” section of the appellant’s brief raises three grounds upon which they rely for reversal of the trial court’s judgment; these are: that the trial court erred (1) in excluding or unduly restricting appellants’ evidence, (2) in admitting respondents’ evidence, and (3) in failing to sustain appellants’ Motion for a Directed Verdict at the Close of the Respondents’ Evidence. For reasons hereinafter stated we hold that the trial court did not commit error in the respects charged and we therefore affirm.

Inasmuch as a will contest is an action at law and the weight of the evidence and the credibility of the witnesses are questions for the jury, when the sufficiency of the evidence to support the judgment is raised, the most favorable evidence rule applies. Hemonas v. Orphan, 191 S.W.2d 352, 362[11] (Mo.App.1945). Therefore, in reviewing the trial court’s action denying the Appellants’ Motion for Directed Verdict, we must view the evidence in a light most favorable to the respondents and we must indulge in every inference favorable to the judgment which men of average intelligence and fairness might draw from the proven facts in the case.

Viewed in this light, the jury could find from the evidence and the inferences therefrom that Ollie Edith Sheets (hereinafter Edith) was the second wife of Dr. Martin Sheets (the Doctor), and that there were two children of the Doctor’s first marriage, Martin Sheets, Jr., and Dorothy Sheets. The Doctor married Edith in 1942, approximately one year after his first wife’s death, at which time Edith was approximately thirty years of age, and the Doctor, sixty-five. Throughout the twenty-eight years of their marriage Edith and the Doctor had no children.

Dorothy Sheets, one of the Doctor’s children of his first marriage, died in 1958, leaving two children surviving her. They are Lowell L. Frei and Doris Rightmeyer, two of the named contestees and respondents in this appeal.

Edith, at the time of her death on January 25,1975, had no lineal descendants; she did, however, have eight half-brothers and half-sisters, and the two daughters of a full brother who had predeceased her. The appellants in this case are a group of Edith’s half-brothers and half-sisters and the two nieces, Carol V. Kittelson and JoAnne Griffin, daughters of the deceased Donald Ellis, Edith’s full brother.

During their life together, the Doctor and Edith owned various rental properties. Martin Sheets, Jr., (hereinafter Martin), one of the respondents, was an attorney-at-law, who performed various services for the couple during the early 1960s, including the preparation of their income tax returns. Sometime in 1963, however, the relationship between the Doctor, Edith and Martin became strained when Martin attempted to have the Doctor transfer all of the Doctor’s properties to him. These efforts were unsuccessful, and for a time Martin ceased rendering those services he had previously performed for the Doctor and Edith because it appeared that they had some question about his trustworthiness and they did not want him involved in their financial affairs. Edith, at one point, opined that Martin planned to steal her property and he was not permitted any longer to sign checks on the joint account of the couple.

Sometime in 1968 a reconciliation took place between the Doctor and Martin, and during 1968 and 1969 the Doctor formulated an estate plan which was never reduced to writing. This plan, according to the testimony of the respondents, was that the property the Doctor had accumulated prior to his marriage with Edith was to be given to Martin and the two surviving children of Dorothy — Lowell L. Frei and Doris Right-meyer. The property accumulated by the Doctor during his marriage to Edith was to be left to her for the remainder of her lifetime, and, upon her death, the remaining property was to revert back to Martin and the two children of Dorothy.

On October 19, 1969, the Doctor and Edith executed a General Warranty Deed transferring their interest in some real property on Kingsland and Kingsbury Streets in St. Louis County, Missouri: one half to Martin and his wife and the other half to Martin as “Trustee of the Dr. M. E. Sheets Trust.”

In the latter part of 1969, Edith consulted with two attorneys in relation to the drafting of a will, and during conversations with them she told them that she wanted her property to go to her family of half-brothers and half-sisters, and that she wanted her will to provide a bequest of $2,000 to a grandnephew, David Griffin. A will with these provisions was prepared and executed by Edith on the 18th day of November, 1969. This will was received in evidence.

After Edith had consulted with the attorneys who drafted the November, 1969, will, one of the attorneys talked with the Doctor on the telephone and obtained information from him for the preparation of a will for the Doctor. A will was prepared and mailed to the Doctor with a letter telling him the requisite formalities of execution. The Doctor, in this will, devised his estate to Edith and recited that, whereas he had previously made provision for Martin, Lowell Frei and Doris Rightmeyer by means of certain deeds delivered and duly recorded in the City and County of St. Louis, he intentionally made no further provision in his will for them. This will was executed by the Doctor on March 5, 1970.

On September 17, 1970, Dr. Sheets died and shortly thereafter Edith once more consulted Martin on business matters. Martin became a co-signer with her on a checking account into which she deposited funds. In October, 1970, Edith consulted with another attorney and told him that she wanted a new will. This lawyer sent her a letter dated October 13, 1970, suggesting that she make an appointment to see him. Receipt of this letter upset her, so she asked Martin to prepare the will so she could avoid paying this lawyer a fee. Martin drafted the will, Edith came to his offices at the St. Louis County National Bank in Clayton, Missouri, where he was trust officer, on November 16, 1970, and she executed the will with Martin’s secretary, his boss and another secretary in the trust department of the bank, as witnesses. According to the terms of this will, Edith bequeathed fifty percent of her estate to Martin and twenty-five percent each to Lowell Frei and Doris Rightmeyer.

Subsequent to the execution of this will, Edith deeded her 16 family apartment building to herself, Martin and his wife as joint tenants with rights of survivorship. Some short time later she also deeded her new residential property in joint names with Daniel Sheets, Martin’s son.

There was ample evidence from which the jury could find that, although Edith had been hospitalized, underwent psychiatric care, had used phenobarbital to excess, and was treated for a manic depressive condition at one time, she was a person of strong will who was indomitable and not susceptible to undue influence by anyone.

Edith died on January 25, 1975, more than four years after she had executed the will of November 16, 1970, which is being contested in this proceeding.

In ruling on this appeal we shall initially consider appellants’ contention that the trial court erred in failing to sustain their Motion for Directed Verdict at the close of the respondents’ evidence. This motion, made after the respondents presented their evidence on the issues of undue influence, was:

“I’d like to make a motion for a directed verdict, at this time, in that the defendants did not prove their burden of rebutting their presumptions in any way.”

The trial court denied this Motion, and we think rightly so.

Will contests have been said to be in the nature of an appeal from an interlocutory order of the probate court probating the will in common form, and it is the contestee, in the first instance, who is required to make out a prima facie case. Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S.W. 46, 47[1, 2] (1908). This burden remains on the contestee throughout the trial. Brug v. Manufacturers Bank & Trust Company, 461 S.W.2d 269, 276[8] (Mo. banc 1970). Although the appellants, as the contestants, did not question the testamentary capacity of the testatrix nor that the will was executed with the requisite legal formalities, the respondents, as the contestees in the trial court, nevertheless, had the burden of proving these elements of their case. Fletcher v. Henderson, 333 Mo. 349, 62 S.W.2d 849, 851[4] (1933).

With respect to whether the will was procured by undue influence the appellants, as the contestants in the trial court, had the burden of proving that the will did not represent the will of Edith, but was the result of undue influence exerted upon her by Martin. McCormack v. Berking, 365 Mo. 913, 290 S.W.2d 145, 150[3] (1956).

Nevertheless, because the evidence of all the parties was that this will was drafted by and executed under the supervision of Martin, an attorney-at-law and a beneficiary of a substantial portion of the testatrix’s estate, a presumption that the will was procured by undue influence arose, Pasternak v. Mashak, 392 S.W.2d 631, 636[3] (Mo.App.1965), and the appellants made a prima facie case which did not disappear upon the introduction of rebutting testimony by the respondents, and an issue for the jury was thereby raised. Pasternak v. Mashak, supra, 1.c. 636[4].

The effect of this presumption was to cast upon the respondents, as the contes-tees, the “never-shifting burden of proof . to establish that the will was executed freely and without such influence, even though the burden of evidence may be said to shift to [the] plaintiff upon proof that (the attorney-beneficiary who prepared the will) followed the suggestions and orders of [the] (testatrix) . . ” Moll v. Pollack, 319 Mo. 744, 8 S.W.2d 38, 45[3] (1928).

While this presumption is rebuttable, it is not a mere legal fiction or procedural rule; it rests on a substantial basis of fact or inference, “which go hand in hand, and really are the same thing. Hence, the presumption, with its underlying facts or inferences, once being in the case, never does nor can disappear but raises an issue for the jury. * * * ” Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772, 776[3] (1932); Simmons v. Inman, 471 S.W.2d 203, 206[2] (Mo.1971); Pasternak v. Mashak, supra, l.c. 637[4]; Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400, 412[11] (1935).

However, none of these authorities decide the issue presented here, i. e. the quantum of evidence a contestee must adduce to rebut the presumption of undue influence and thereby make a submissible case. Those cases deal with the question whether the contestant makes a submissible case of undue influence with the aid of the presumption.

Neither the appellants nor the respondents have cited to us any Missouri case ruling on this question. Our independent research has surfaced two cases which we believe are persuasive.

In Hegney v. Head, 126 Mo. 619, 29 S.W. 587, 589 (1895) the court said:

“Such wills, when made to the exclusion of the natural objects of the [testatrix’s] bounty, are viewed with great suspicion by the law, and some proof should be required besides the factum of the will before the will can be sustained.”

In reaching this conclusion the court relied on Marx v. McGlynn, 88 N.Y. 357, 371 (1882). Mowry v. Norman, 204 Mo. 173,103 S.W. 15, 19 (1907), in considering this same question, cited both Marx and Hegney, and quoted from Maddox v. Maddox, 114 Mo. 35, 46, 21 S.W. 499, 502, 35 Am.St.Rep. 734 (1893):

“. . . and the onus is cast upon the beneficiaries to make explanation of the transaction, and establish its reasonableness.”

We believe that the rule to be applied is that stated in Bay v. Gillilan, 92 Mo. 250, 5 S.W. 7, 11 (1887):

“Where confidential or fiduciary relations exist, and a gift be bestowed or a contract be made between such parties, then the party occupying the attitude of guardian, agent, trustee, medical adviser, etc., has the onus to bear of establishing the absolute fairness of the given transaction. . . . where such facts are proven as will authorize a jury to find the existence of undue influence, then the burden shifts, and it then devolves on the party charged to exonerate himself from such charge, in like manner as in the case of fiduciary or confidential relations.”

The burden in cases involving one occupying a fiduciary or confidential relation where a prima facie case has been made giving rise to the presumption of undue influence has been considered and ruled upon by the Supreme Court of this state in the case of In re Patterson’s Estate, 383 S.W.2d 735 (Mo.1964). The court held, 383 S.W.2d l.c. 739[2], that once the fiduciary presents evidence on the issue, the validity of the gift became a mixed question of law and fact to be determined from all the evidence by the trier of fact.

In re Patterson’s Estate, supra, involved a gift, however, in Bridwell v. Swann, 84 Mo. 455, 467[2] (1884) the court held that the presumption of undue influence must be rebutted “by competent and convincing proof” if the fiduciary is to enjoy the benefit of the will; and when there is evidence of this stature it is then the function of the jury, under proper instructions, to decide whether the rebuttal evidence was sufficient to repel the disputed influence. Bridwell v. Swann, supra, l.c. 469[5].

Respondents’ evidence on this issue was that when the Doctor married Edith she was without any substantial funds; in fact, the Doctor paid for her divorce from her former husband and very shortly thereafter they married. After their marriage they agreed that whatever the Doctor had acquired during his first marriage would, upon his death, go directly to the respondents, and the remainder would go to Edith during her lifetime if he should predecease her; and then, upon her death, she would pass it on to the respondents. Pursuant to this plan, the Doctor, in 1969, conveyed that portion of his estate which had been acquired during his first marriage, partly in fee to Martin and his spouse, and partly in trust for Lowell Frei and Doris Rightmeyer. Following this, in March 1969, the Doctor executed a will leaving the balance of his estate to Edith. Two months after the Doctor died, Edith, despite the fact she had access to other counsel, requested that Martin prepare a will for her so she could avoid paying attorneys’ fees to another lawyer for these services. Martin denied exercising any influence over Edith in the making and execution of the will and testified that the will conformed with her wishes. He further testified that he prepared the will only after he unsuccessfully attempted to have her go to other lawyers for its preparation.

Edith had discussed her will with others. Among these were Dr. Robert D. Brookes, her psychiatrist, who testified that in October, 1971, Edith told him that she had left her estate to Dr. Sheets’ family. Clair F. Lypka, a friend, testified that Edith told her shortly prior to Edith’s death, that her will was in order and everything was to go to the Doctor’s family. There was also testimony from Dr. Brookes that on an office visit on October 27, 1971, Edith told him that she had arranged her will so that the property which she got from Dr. Sheets would revert to Martin in case of her death. She also told him that she believed her step-brother and step-sister did her in and took savings of hers at one time and that they had taken some of her property out of the place where she was living while she was in the hospital. There was also much evidence by both parties that Edith, during the time this will was prepared, was fully competent, capable of handling her own affairs, and was one who was not susceptible to undue influence. This will was executed on November 16,1970, and Edith died on January 25, 1975; there is no evidence that she revoked or made any changes in this will during the intervening four years and two months, nor that she at any time conveyed to anyone any indication that this will did not dispose of her estate in accord with her wishes.

We conclude that this evidence adduced by the respondents on the issue of undue influence made that issue a mixed question of law and fact to be determined from all of the evidence by the trier of fact — the jury — and that the trial court properly denied the appellants’ Motion for Directed Verdict and submitted the case to the jury.

Appellants’ other two Points Relied On for reversal of the trial court’s judgment are directed at evidentiary rulings made during the course of the trial. The first point consists of four separate sub-points whereby evidence appellants sought to introduce was excluded; the second, a ruling admitting into evidence testimony of the respondents concerning an oral agreement the Doctor and Edith had relative to the disposition of her estate upon her demise.

Because appellants’ first sub-point under Point One concerns testimony relative to declarations of the testatrix made to the attorney who prepared her November, 1969, will concerning an estate plan she and the Doctor had, and their Second Point is directed against the admission of declarations of the Doctor and the testatrix made to the respondents on a number of occasions prior to the execution of the same will, that on Edith’s death the property she had received from the Doctor’s estate would go to the Doctor’s heirs, we shall consider these two grounds together.

Prior to ruling these Points we are of the opinion that the law on this subject should be reviewed.

Generally, wide latitude of evidence is permitted in a will contest where the ground for voiding the will is undue influence. Canty v. Halpin, 294 Mo. 96, 242 S.W. 94, 96[6] (banc 1922). This is so because a person intent on exercising undue influence will do so in as subtle, furtive, indirect and elusive manner as possible; and, therefore, undue influence may be shown indirectly by the reasonable and natural inferences drawn from the facts and circumstances proved, i. e. by circumstantial as well as direct evidence. Salisbury v. Gardner, 515 S.W.2d 881, 885[4] (Mo.App.1974).

In Thompson v. Ish, 99 Mo. 160, 12 S.W. 510, 512, 513[3] (1889) the court said:

“The triers of the facts should be placed in the position of the testatrix, as near as possible, so as to be able to consider all the evidence from her point of view, when she made the will in dispute.”

The general rule in this state is that declarations of a testator or testatrix, not made contemporaneously with the execution of the will or so near thereto as to constitute a part of the res gestae, are not competent as direct or substantive evidence of the truth of the matters therein stated when offered on the issue of undue influence in the making of the will being eon-tested. Hammonds v. Hammonds, 297 S.W.2d 391, 397[10] (Mo.1957); State ex rel. Smith v. Hughes, 356 Mo. 1,200 S.W.2d 360, 361[2] (banc 1947); Minturn v. Conception Abbey, 227 Mo.App. 1179, 61 S.W.2d 352, 360[10] (1933).

However, evidence of declarations of a testator or of a testatrix, not a part of the res gestae, have been held admissible to show the state of mind of the testate, Doll v. Fricke, 237 Mo.App. 1148, 171 S.W.2d 755, 758[5, 6] (1943), and his or her susceptibility to influence, McCormack v. Berking, 365 Mo. 913, 290 S.W.2d 145,150[5] (1956). It is the state of mind and the susceptibility to influence of the testate at the time of the making of the will which is in issue and except where the declarations shed some light on the state of mind or the susceptibility to undue influence during that time period they should not be admitted without some confirmation of a same or similar tenor over a period of years. Gott v. Dennis, 296 Mo. 66, 246 S.W. 218, 224[8] (1922).

Turning now to the issue under consideration, we feel it necessary to relate the circumstances giving rise to these problems.

Appellants, during their case in chief, called as a witness, Robert Hartzog, an attorney associated in the practice of law with another attorney, James E. Dearing. According to the evidence, Mr. Dearing and his family were acquainted with Dr. Sheets through Masonic activities. Sometime in October, 1969, after the Doctor and Edith had executed the trust agreement of October 19, 1969, wherein both gave approximately half of their joint estate to Martin and his wife, and half to Martin in trust for the Doctor’s two grandchildren, Lowell Frei and Doris Rightmeyer, Edith called at Mr. Dearing’s office to have a will drafted for her and the Doctor. Preparatory to drafting the will for Edith, Mr. Hartzog interviewed her, and appellants sought to adduce from him certain statements she had made to him to the effect that she and the Doctor had already provided for the Doctor’s heirs by the trust instrument and did not plan to leave them anything else.

At trial, Mr. Marshall, counsel for the appellants, inquired of Mr. Hartzog concerning the instructions given to him as to how Edith wanted her estate distributed and elicited from him the provisions of the will he prepared pursuant to those instructions. In that will Edith left everything to the appellants, save for a $2,000 bequest to her grand-nephew, David Griffin.

Having developed this, Mr. Marshall then inquired whether Edith indicated to Mr. Hartzog any strong feelings of any kind as to why she wanted to have these provisions in her will, and he replied “yes.” The following then took place:

“Q. And what was that indication?
A. She said that she and the Doctor had arranged an estate plan — ”

At this point counsel for the respondents interposed the following objection:

“I will object to the question and the answer, that the last part of that is not responsive and deals with objected subject matter, and I ask it be stricken and the witness be instructed to (sic) the question yes, or no, and Mr. Marshall (sic) instructed not to delve into matters that the court has already ruled on.”

Appellants’ counsel was directed to rephrase the question, and the interrogation continued:

“Q. Did you discuss with Mrs. Sheets her feelings as to what she wanted done with her property?
A. Yes.
Q. And what was the extent of the discussion as to what she wanted to do with her property and why?”

An objection followed, directed to the “why,” on the grounds that the will was the best evidence of what Edith wanted done with her property. The court ruled:

“I will sustain the objection. He has testified as to what she wanted, and I think we are getting into an awfully dangerous area.”

A lengthy discussion, out of the hearing of the jury, ensued and culminated with the trial judge’s statement that he was sustaining the objection because the state of mind of the decedent a year before she executed the will in question and what indication she gave to her attorney at that time were immaterial.

Appellants, in their “Points Relied On” and “Argument” sections of their brief, state that the objection “was that the testimony was privileged attorney-client matter and hearsay.” In this contention the appellants are in error; as a matter of fact, that objection, made earlier in Mr. Hartzog’s testimony was overruled, and the witness was permitted to relate the instructions he was given by Edith as to how she wanted to dispose of her estate.

As a further grounds the appellants, in the “Points Relied On” portion of their brief, also contend that the trial court erred in excluding this evidence on the ground it was immaterial. The evidence they have reference to is the testimony of Mr. Hart-zog explaining “why” Edith wanted her will drawn this way, i. e. in accordance with the estate plan of the Doctor and Edith whereby these respondents would be left nothing in the Doctor’s, will because they had already been amply provided for by him during his lifetime and Edith could thereafter dispose of that portion of the jointly owned property left to her in the Doctor’s will as she saw fit. If we correctly comprehend the appellants’ position, gleaned from their brief and the oral arguments in this court, this evidence is material because it is circumstantial evidence of one of the factors or circumstances the court in Salisbury v. Gardner, supra, said should be considered in determining questions concerning the exercise of undue influence, i. e. “whether the will makes an unnatural disposition of the estate and represents a sudden change from former wills.” 515 S.W.2d l.c. 886.

The crucial question then is whether declarations of a testate as to the manner in which he or she intends to dispose of his or her estate are admissible.

There is a split of authority on the subject. However, we believe the law in this state is well settled, and declarations by a testate in cases where the will is under attack on the grounds of undue influence are admissible where they shed light on the intentions of the testate with respect to the disposition of his or her estate and to his or her susceptibility to undue influence, provided said statements or declarations are made at or near the time of the execution of the will in question, Wilhoit v. Fite, 341 S.W.2d 806, 817[21] (Mo.1960), but they do not constitute proof of the facts stated therein. McCormack v. Berking, supra.

The tenor of this excluded statement of the testatrix to Mr. Hartzog, at best, explained why she wanted her 1969 will drafted the way it was. It was evidence of her state of mind at that time— October and November, 1969. If admitted, it could have come in for the sole purpose of evidencing her state of mind at that time and not as substantive evidence of the plan she and the Doctor had devised. It would, therefore, have been merely corroborative of the will itself, and the exclusion of evidence which is merely cumulative is not prejudicial error. Creager v. Chilson, 453 S.W.2d 941, 944[7] (Mo.1970).

Appellants’ second “Point Relied On” is directed to the trial court’s admission into evidence, over objection that the evidence was hearsay, violated the statute of frauds, and was in violation of §§ 451.220 and 474.220 RSMo.1969, which require all marriage contracts to be in writing, the testimony of Lowell Frei, Doris Rightmeyer and Martin Sheets, Jr., concerning oral statements by both the Doctor and Edith which were made to them, that on Edith’s death the property which she had received from the Doctor’s estate would revert back to the respondents as his heirs.

During Mr. Frei’s testimony in chief, respondent’s counsel inquired whether the Doctor and Edith, together, had discussed with him plans for disposition of “their estate.” He responded yes, and that the “last time” they did so was in 1968 “or in that area.” He then went on:

“He was going to divide what he accumulated before he married Edith. My uncle was to get half, my sister and myself were to get a fourth, which is my mother’s half, and then what was accumulated while they were married would go to Edith until the time of her death; and it was supposed to be split the same way at the time of her death. In other words, revert back to the Sheets family.”

During Ms. Rightmeyer’s testimony in chief she was permitted to testify that prior to the Doctor’s death she had occasion to discuss with the Doctor and Edith, together, what they planned to do with their estate on numerous occasions; the last time, several years prior to the Doctor’s death. According to her testimony, “they” told her that everything that had been acquired before her grandfather’s marriage would revert back to the Sheets family and then the other portion would go to Edith.

Finally, during Martin’s testimony in chief, he was permitted to testify that during the time Edith and his father were alive, on numerous occasions, they discussed Edith’s plans for the disposition of “their estate.” These discussions took place when she was telling him how his father wanted to dispose of his estate and they occurred so many times that it was a matter of common knowledge in the family. She told him the plan was very definite, that what his father had acquired while he was married to Martin’s mother, and before he married Edith, was to go to the Doctor’s family; at his death, what he had acquired after he had married Edith was to go to her, and at her death was to revert back to the Doctor’s family.

We conclude that under the peculiar circumstances of this case there was no error in admitting this evidence in rebuttal to the appellants’ charge that the will of November 16, 1970, was the product of undue influence. According to this evidence, these declarations of the Doctor and Edith were jointly made over a long period of time, and support the general plan set forth in Edith’s will; they also show the mental state of the Doctor and Edith with respect to the disposition of their property and their affection for the Doctor’s heirs. Gott v. Dennis, supra. The fact that she permitted this will to stand unchanged for four years after its execution is further support for the inference that it was not the product of undue influence but the carrying out of the plan she and the Doctor had devised for the disposition of his property left to Edith when he died. Wilhoit v. Fite, supra.

Appellants’ contentions that this “agreement” was violative of the Statute of Frauds and the Statutes requiring marriage contracts to be in writing and was for that reason inadmissible, are likewise without merit. This evidence was admitted solely for the purpose of rebutting the appellants’ contention that this will was the result of undue influence, and whether the agreement was enforceable was not germane to the purpose for which the evidence was admitted. It went solely to the state of mind of Edith at the time the declarations were made and to show a continuity of purpose in carrying out the estate plan.

For the foregoing reasons we hold that the trial court was not guilty of error in admitting into evidence those declarations of the Doctor and Edith relative to their plan that all of the property owned by the Doctor and Edith was to go to the Doctor’s heirs when Edith died.

Appellants’ second sub-point under Point 1 of their brief is that the trial court erred in excluding the testimony of Charles Jensen, an accountant for the Doctor and Edith relative to their estate plan and in refusing to allow into evidence the Estate Tax and Gift Tax returns of the Doctor and Edith which were filed following the death of Dr. Sheets and the execution of the trust instrument of October 19, 1969, respectively.

The appellants contend that this evidence was admissible as circumstantial evidence to support their theory that the estate plan of both Edith and the Doctor was that by reason of the inter vivos transfer of that portion of the Doctor’s properties which were acquired during his first marriage to these respondents, they should not be entitled to anything further and Edith could do with that portion of the jointly-held properties devised to her by the Doctor as she chose, without any obligation to leave anything to these respondents upon her death.

What we have previously held with respect to Edith’s declarations to Mr. Hartzog is equally applicable here with respect to any testimony Mr. Jensen might have given concerning the estate plan of the Doctor and Edith, and appellants are not entitled to a reversal of the judgment in this case on this ground.

Despite the fact the trial judge would not receive into evidence the Gift Tax Return and the Estate Tax Return filed with respect to the Doctor’s estate, evidence of the contents of these Returns— with the exception of the monetary values of the properties involved — and the details of the gift were disclosed in the testimony of the respondents. Appellants do not contend in this court that the values of these properties are material; their argument is limited to the circumstantial importance of this evidence to support their version of the estate plan of the Doctor and Edith. Under these circumstances we hold that inasmuch as testimony of the contents of the Returns^ — save for the values of the properties transferred to the respondents by the trust instrument and the disposition of the remaining property following the Doctor’s death was in evidence, no prejudicial error was suffered, and this Point is no basis for reversing the trial court’s judgment.

Appellants’ third sub-point under Point I of their brief is that the trial court erred in excluding a pleading filed by the respondent, Martin Sheets, Jr., in a companion case, wherein he contended that Edith was the victim of undue influence at a time when she was feeble, infirm and under the influence of drugs.

The pleading appellants sought to introduce into evidence in the trial court has not been incorporated into the transcript of the record on appeal, and so far as we have been able to ascertain from a study of the record and the parties’ briefs, it was an Amended Answer filed by Martin Sheets, Jr., in a lawsuit wherein Ms. Griffin and Ms. Kittleson sought a declaratory judgment declaring title to a certificate of deposit and a savings pass book to be in themselves.

The appellants argue that this pleading, if admitted, would have shown that Martin alleged therein that this testatrix was susceptible to undue influence and was “unduly influenced at a time when she was feeble, infirm, and under the influence of drugs,” a position contrary to his position in this case that Edith was a capable, forceful woman, nearly impossible to influence. For this reason, appellants contend, that this Amended Answer was admissible as an admission against interest.

Respondents’ counsel, in the argument portion of the brief, says with respect to this pleading:

“The pleading was filed by Proponent Sheets and he alleged Edith Sheets was unduly influenced by the two nieces and under the influence of drugs.”

The responsibility for affording an appellate court a record upon which it can properly review the actions of a trial court rests on the party taking the appeal from the judgment of the trial court. Rule 81.-12(a) and (b). Not only have the appellants failed to incorporate the Amended Answer upon which this contention of error is based, but they have failed to afford us any evidence which will show the materiality or relevancy of this pleading with respect to the time frame these allegations of susceptibility to undue influence are related. Appellants contend that the Certificate of Deposit and the signature card on the joint Savings Account which were the subject of litigation in the companion case, were dated in 1970, shortly after the Doctor’s death. The respondents, on the other hand, argue that these incidents occurred sometime in 1973. Who is correct we are unable to determine from this record on appeal.

With the record in this state we find that we are unable to afford a meaningful review to this Point and must, therefore, hold that this Point cannot be employed to reverse the judgment of the trial court.

The final sub-point of Point I of appellants’ “Points Relied On” is that the trial court erred in not permitting the introduction into evidence of two warranty deeds and in precluding cross examination of Martin Sheets, Jr., regarding these two deeds.

The first of these deeds was one dated June 16, 1971, wherein Edith transferred title to an apartment building on DeMun and Northwood Avenues in Clayton, St. Louis County, Missouri, to herself, Mary Ann Sheets or Martin E. Sheets as joint tenants with a right of survivorship and not as tenants in common.

Respondents’ counsel objected to the introduction of this deed into evidence on the ground that there was then pending a lawsuit in another division of the St. Louis County Circuit Court seeking to set aside this deed and that the appellants were the plaintiffs in that proceeding. He further objected that this transaction had nothing to do with whether Martin was Edith’s attorney at the time of the execution of her will because this deed was executed subsequent to that occurrence.

The second warranty deed appellants sought to introduce into evidence was a warranty deed wherein the St. Mark’s Presbyterian Church was the grantor and whereby Edith’s residence in Claymont, St. Louis County, Missouri, was transferred to Edith and Daniel Sheets, Martin’s son, as joint tenants with a right of survivorship and not as tenants in common. This deed was dated October 31, 1972.

Respondents’ objection to this document was that it too was the subject of the previously mentioned pending lawsuit and that it was immaterial and irrelevant to the state of mind of the testatrix at the time she executed the will being contested.

In response, appellants’ counsel stated that the purpose of offering these deeds was to show that the undue influence Martin had exercised over Edith in the procuring of the will being contested, carried through from the date shortly after the death of Doctor Sheets all the way to the time when these deeds were executed.

In each instance the trial court, in ruling on the objection, instructed the appellants’ counsel that it would permit him to inquire whether the witness — Martin Sheets, Jr.— attended the closing in any representative capacity, the names of the grantors and the grantees, and the property conveyed by the deeds. He was, however, further advised, that because these deeds were the subject of another lawsuit, the documents themselves would not be received into evidence.

Appellants’ counsel proceeded to adduce from Martin that he had prepared and typed the warranty deed whereby the apartment property was transferred by Edith to herself, his wife and himself as joint tenants with a right of survivorship. He also developed that Martin was present, at Edith’s request, when the deed from the Church to his son and Edith which transferred title to Edith’s residence to them as joint tenants with a right of survivorship, was executed. According to Martin, he was there to see that Edith “got a good, clean title.”

We conclude that if the purpose for introducing these deeds into evidence was, as appellants stated to the trial court, to show “a clear case of continuing undue influence up to the time of her death,” that purpose was achieved by the questions directed to Martin and the answers given, and exclusion of the deeds was, at worst, harmless error, and affords us no basis for the reversal of this judgment, and we so hold.

Judgment affirmed.

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

      . Other courts faced with this question have reached various conclusions. Some cases hold that the evidence necessary to overcome a presumption of undue influence arising from a testamentary gift to an attorney must be clear, convincing, and satisfying. See cases cited 19 A.L.R.3d 596, § 5[b], See also: Annotation, Presumptions or Inference of Undue Influence From Testamentary Gift to Relative, Friend, or Associate of Person Preparing or Procuring Its Execution. 13 A.L.R.3d 381. In other cases it has been held that to overcome a presumption of undue influence arising from a testamentary gift to an attorney, the attorney need not establish the absence of undue influence by a preponderance of the evidence. In Re Erickson’s Estate, 140 Cal.App. 520, 35 P.2d 628, 631 [4] (1934). The Supreme Court of Iowa, in Graham v. Courtright, 180 Iowa 394, 161 N.W. 774, 780[12] (1917) held that in a case of this nature the attorney had only to meet the prima facie case against him by putting the evidence pro and con in equipoise, and the burden of proof remained upon the contestant at all times to prove undue influence.
      However, the Utah Supreme Court in Re Swan’s Estate, 4 Utah 2d 277, 293 P.2d 682, 693[18] (1956), held that the attorney-beneficiary once the evidence gives rise to the presumption of undue influence, then has the burden of persuading the trier of fact by a preponderance of the evidence that there was no undue influence, or in other words, by showing from the evidence that is more probable that he acted perfectly fairly with his confidant rather than merely by a prima facie showing to the contrary.

      . One line of cases holds such evidence admissible in accordance with the general principle that a testate’s declarations are admissible to show his feelings. In re Thompson's Will, 248 N.C. 588, 104 S.E.2d 280, 288[16] (1958); In re Holloway, 195 Cal. 711, 235 P. 1012, 1019[10] (1925). A second line of cases holds that those declarations of a testate showing the same general intention as that embodied in the will are admissible to show a continuity of purpose. Howell v. Howell, 210 Ala. 429, 98 So. 630, 632[8] (1923); Snyder v. Cearfoss, 190 Md. 151, 57 A.2d 786, 789[2] (1948). And in some jurisdictions a declaration by a testate as to the way in which he or she means to dispose of his or her property is held to be admissible as evidence of a general plan by which the testate wants his or her property distributed if the declaration coincides with the general plan embodied in the will, but inadmissible if in conflict therewith. Chedel v. Mooney, 158 Ga. 297, 123 S.E. 300[2] (1924); Baker v. Baker, 202 Ill. 595, 67 N.E. 410, 416[4] (1903); Mosher v. Thrush, 402 Ill. 353, 84 N.E.2d 355, 357[4] (1949).

      . In the Estate of Sheets v. Sheets, 558 S.W.2d 291 (Mo.App.1977).

      . In Estate of Sheets v. Sheets, 558 S.W.2d l.c. 292 the court states: “The certificate of deposit was issued ... on February 6, 1974, . to Edith Sheets and Jo Anne Griffin, as joint tenants with right of survivorship. The passbook savings account.was established as an individual account by Edith Sheets and then changed to a joint account on September 19, 1973, in the names of Edith Sheets and Carolyn Kittleson, as joint tenants with right of survivorship.”


source: Caselaw Access Project

author: ALDEN A. STOCKARD, Special Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Larry James MARSHALL, Appellant.
    No. 39072.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 5, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 13, 1978.
    Application to Transfer Denied Nov. 6,e1978.

      Robert W. Meyers, Shaw, Howlett & Schwartz, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Jeff W. Schaeperkoetter, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Larry James Marshall was charged by indictment in three counts with sodomy, rape, and robbery in the first degree. He was found guilty by a jury of each offense and he has appealed. We affirm.

We shall relate only such facts as are essential to an understanding of the issues.

Bathilda Lewis lived alone in an apartment at 4355 Maryland in the City of St. Louis. In the early morning hours of April 25, 1976, when she was expecting a girl friend to come by her apartment, the door buzzer sounded and she spoke with a person on the intercom whom she thought was her girl friend. She then operated the electric device which unlocked the front door to the building, and she unlocked and opened the door to her apartment. A few minutes later a black male entered her apartment, threw a jacket over her head, and committed the offenses with which appellant was charged. During the struggle between them, the assailant pulled the robe Miss Lewis was wearing up over her head and dropped his jacket to the floor. Apparently in an effort to persuade her assailant to leave Miss Lewis told him that the door to her apartment was unlocked, that she was expecting a visitor, and that when the visitor arrived she would enter. The assailant then pushed Miss Lewis through a door into a bedroom and, according to Miss Lewis, said “he was going out to check the door to see if it actually locked.” He opened the apartment door and went into the hallway and the door automatically locked behind him. He apparently realized that he had left his jacket in the apartment and he pounded on the door in an unsuccessful attempt to regain entrance. In the pocket of the jacket there was a bottle of pills which had been prescribed for appellant. The police lifted fingerprints in the apartment, and a police officer, testifying as an expert, stated that a fingerprint found on a doorknob in the apartment was made by appellant’s right index finger.

Defendant interposed the defense of alibi and he testified that on the night of April 24, 1976, he attended a dance in Wellston, and after visiting some friends until 3:30 o’clock the next morning he went to another party where he stayed until 4:30 or 4:45 o’clock. He then went to his automobile and discovered that his Levi jacket and a pair of shoes were missing, and he went immediately to the Seventh District Police Station to report the theft.

During the voir dire examination of the jury panel the prosecutor made the following statement:

“Some of the evidence in this case will be what is called circumstantial evidence. I can’t get into specifically what the evidence in the case is at this time, but some of it will be circumstantial and some of it will be direct. And the distinctions will be explained to you. For example, a fingerprint would be circumstantial evidence. Some kind of physical test or laboratory test would be circumstantial evidence. Direct evidence would be the testimony of someone who readily observes something. Now, a lot of our case will be circumstantial evidence. Do all of you understand that circumstantial evidence is just as strong legally as direct evidence; that a conviction can be had on circumstantial evidence solely; it can be had on direct evidence solely or on a combination of both?”

Only inferentially was an objection made to this statement, but appellant asked that the jury be told that “they must find beyond a reasonable doubt and they must consider all reasonable hypotheses * A discussion followed between court and counsel in which the court commented that it did not “exactly know what the Defendant’s position [was] * * *.” The court concluded that “to clear up any possible confusion” it would read the first part of MAI 3.42, and it then informed the jury as follows:

“Ladies and gentlemen of the jury, with regard to circumstantial evidence, it is the proof of facts or circumstances that give rise to a reasonable inference of other facts that tend to show the guilt or innocence of the Defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.”

Appellant asserts in his first point that the court “did not adequately explain to the jury and correct the impressions of the jury panel as to the nature of circumstantial evidence [resulting from] the circuit attorney’s phrase that circumstantial evidence is just as strong as direct evidence,” and the reading of only “the first paragraph of * * the MAI on circumstantial evidence did not adequately correct this impression upon the minds of the jurors during voir dire.”

We mention here that this problem arose as the result of the assistant circuit attorney improperly undertaking to advise the jury, under the guise of voir dire examination, as to what the law is, a practice previously criticized by this court. See State v. Van, 543 S.W.2d 827 (Mo.App.1976). However, appellant’s request that the court read to the jury MAI-CR 3.42 on circumstantial evidence during the voir dire examination of the jury was improper. The voir dire examination is not the time to instruct the jury on the law applicable to the case. There was an appropriate objection that could have been made to the improper comments, and in response to such an objection appropriate relief could have been provided by the court. We note that at the proper time for requests for instructions to be made, appellant did not request an instruction on circumstantial evidence and none was given. In view of the unusual circumstances of this occurrence, the action taken by the trial court was probably the best solution; it certainly was not an abuse of discretion and did not result in any prejudice to appellant.

During the voir dire examination it was developed that one of the jurors was acquainted with appellant and that another had gone to school with and knew the assistant circuit attorney who was trying the case. The court commented as follows:

“Gentlemen, the Court does not see any reason in a community as large as the City of St. Louis why any juror should know either one of the attorneys or the parties to the lawsuit. The case law in Missouri has been that the juror is not a determiner of his own qualifications; rather, the Court is the final determiner of any qualifications of the juror. Therefore, to avoid any possibility of prejudice or even the appearance of any possibility of prejudice or impartiality, the Court, on its own motion is going to order stricken for cause both of these jurors; namely, Juror No. 516, Karen Walker, who does know the Defendant, and Juror No. 351, Barry McEney, who went to school with Mr. Ravetta [the assistant circuit attorney].”

Appellant interposed no objection to this action of the court. He stated only that he “would have found them both to have been qualified,” and that “it’s within the sound discretion of the Court, but [he] believe[d] that they both would have been qualified panelists.”

A specific objection which calls the attention of the trial court to the ground or reason for the objection is required to preserve an issue for appellate review. State v. Paglino, 819 S.W.2d 613 (Mo.1958); State v. Lang, 515 S.W.2d 507 (Mo.1974). Not only was there no objection, appellant correctly conceded that it was a discretionary matter for the court. However, aside from the failure to preserve the issue, the trial court has the authority to strike prospective jurors on its own motion, State v. McWilliams, 370 S.W.2d 336 (Mo.1963), and it is not limited to the strict terms of the applicable statutes when ruling on the competence of prospective jurors. State v. Williams, 538 S.W.2d 947 (Mo.App. 1976). Appellant makes no claim that any member of the jury before which he was tried was not qualified, and he was not entitled as a matter of right to have a particular person on the jury panel. State v. McWilliams, supra. We find no manifest injustice or abuse of discretion on the part of the court.

Police Officer Charles Bergmann testified as an expert witness concerning the comparison of appellant’s fingerprint and the print found on the doorknob of the apartment. During the cross-examination appellant asked him about his testimony before the Grand Jury, and after stating that the printed report of his testimony before the Grand Jury showed that he had stated that there were nine points of comparison, Officer Bergmann added, “which I feel still — .” At this point appellant interrupted and asked that the court “direct the witness only to respond to questions.” The court stated: “Well, certainly he’s only responding to the question you are asking him, I’m sure. I’ll direct him * * * Officer Bergmann, you may answer any question that is asked and you may give any explanation that you desire in answer to the question. But you are to answer the specific question.” There then followed a conference out of the hearing of the jury in which there was an academic discussion of whether the witness was entitled to explain an answer made on cross-examination, or if there was to be an explanation it had to be brought out on redirect. In the discussion the court commented: “I don’t think he has violated any rule as a witness. * * * but I have instructed him to answer the question * * The court further commented: “ * * * under certain circumstances, I will let a witness explain an answer. And the last answer could be a qualified answer or * * * a qualified no answer, and the witness certainly has a right to explain away any such answers.” Appellant then objected “to the ruling that you made,” and when the court asked, “what ruling?” He answered, “that he could explain his answers in front of the jury.”

The effect of the court’s ruling was that it would “under certain circumstances” permit a witness to explain an answer. We do not know what those circumstances were and we cannot say that the court erred in so ruling. As a general rule, when a question calls for an answer of either “yes” or “no,” then the court may in its discretion permit the witness to explain the answer. 81 Am.Jur.2d Witness § 434; State v. Johnson, 301 So.2d 609 (La.1974); United States v. Nichels, 502 F.2d 1173 (7th Cir. 1974). In any event we are not called upon to decide whether the ruling of the court was correct. We find no contention by appellant that a witness improperly attempted to explain an answer. Neither does he contend that the court improperly refused to strike out any part of an improper answer.

In his fourth point appellant challenges six instructions because in each “the time cited for the event to have occurred was between 4:20 A.M. and 4:50 A.M. and * * all the facts adduced at trial indicated that the event only could have occurred between 4:30 A.M. and 4:55 A.M.”

We have experienced some difficulty in ascertaining the precise basis of appellant’s contention of error. Although he does not specifically so state, he apparently contends that the instructions in some way tended to disparage his defense of alibi. If by that he means that the time of the offenses as hypothesized in the instructions was in conflict with his evidence in support of his alibi, that is of no consequence. The jury was entitled to not believe part or all of such evidence.

Appellant argues that the instructions “all set forth an erroneous statement of the time of the offense.” We do not agree. Miss Lewis estimated her buzzer sounded at 4:30 o’clock A.M. She said, “I’m guessing the time.” Therefore, it could have been a few minutes earlier or later. She also stated that she estimated her assailant was in her apartment between fifteen and twenty minutes, and that the police arrived about 5:00 or 5:05 o’clock which she estimated to be ten to fifteen minutes after she called them. These statements of time are of necessity only approximate. Therefore, the hypothesis that the offenses occurred between 4:20 and 4:50 o’clock of the morning of April 25, 1976, was clearly supported by the evidence.

We shall consider appellant’s last two points together. In point V he asserts error in overruling his motion “for judgment of acquittal at the close of the State’s evidence,” and in point VI he makes the same assertion as to his motion “at the close of all the evidence.”

Appellant offered evidence on his behalf and thereby waived any claim of error as to his motion for acquittal at the close of the State’s case. State v. Hall, 438 S.W.2d 244, 247 (Mo.1969). As to his motion at the close of all the evidence, he argues that the State has the burden to show the accused’s presence at the time and place of the offense of which he is charged, and that the State is not relieved of that burden by reason of the defense of alibi. We agree with that statement. See State v. Martin, 515 S.W.2d 802 (Mo.App.1974). He then asserts that his “alibi accounts for every minute of his time, except for a roughly five minute drive * * *,”andhe refers to what he calls a “far-fetched” inference which he describes as follows: that he “a youth and a high school dropout, after committing several violent acts on the victim in this matter, had the presence of mind to realize that his jacket and pill bottle were left in the victim’s apartment and that he could escape detection if he immediately reported them as stolen in another police district and [that he walked] into that station house in a normal manner just thirteen minutes after he * * * committed three violent crimes.” He then concludes: “Weighing that proposition against the possibility that the fingerprint was faked [of which there is absolutely no evidence] yields the answer that * * * [appellant] could think and react so fast as to coolly report the theft of items from his car a mere thirteen minutes after he had committed three violent crimes [which left him] in a frenzy that * * * his words [were] almost incomprehensible to his victim * The basic deficiency with this contention is that it is an argument as to the weight to be given the evidence, but the weight of the evidence and the inferences to be drawn therefrom were for the jury, and the jury resolved those issues against appellant. We find no prejudicial error.

The judgment is affirmed.

DOWD, P. J., and SNYDER, J., concur.


author: SMITH, Judge.

text:
    STATE of Missouri, Respondent, v. Willie Murphy WARD, Appellant.
    No. 38634.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 5, 1978.

      Crouppen, Walther, Zwibelman & Walsh, P. C., Roy A. Walther, III, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Paul R. Otto, Daniel F. Lyman, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Howard Paperner, Asst. Pros. Atty., Clayton, for respondent.
   SMITH, Judge.

Defendant appeals his conviction by a jury of operating a motor vehicle without permission of the owner. Sec. 560.175 RSMo 1969. The court, pursuant to the second offender act, sentenced defendant to five years imprisonment. We reverse and remand.

Defendant’s first contention is that the state failed to establish that no permission had been given by the owner of the vehicle. Ray Korte left the vehicle in question, a 1973 Cadillac, in the garage at Lambert Airport on July 10, 1975. When he returned to the garage on July 11, the car had been stolen. At the time of the theft the vehicle was titled to a corporation in North Carolina of which Korte was one of three stockholders. Only Korte had keys for the vehicle; it was provided to him by the corporation for his use only; the corporation had no officers or offices in Missouri except himself; he had not given defendant authority to operate the vehicle at any time. Defendant was arrested while driving the car on August 11,1975. On the day prior, the Iowa National Mutual Insurance Company had paid the title-owning corporation for the loss sustained because of the theft of the car. The title, assigned to the insurance company, was mailed from North Carolina to Kansas City on August 10. There is no evidence when the insurance company received the title and only Korte testified concerning the question of permission. Defendant did testify and presented several witnesses, all members of his family. The evidence for defendant was that he had purchased the car in early July, had received a title and obtained a license, and that he believed the automobile belonged to him.

We do not find the evidence insufficient to establish a lack of permission from the owner. It is not necessary that the owner testify to lack of permission if there is evidence of a lack of permission from another source. State v. Townsend, 327 S.W.2d 886 (Mo.1959) [5]. Korte’s testimony of his relationship to the owning corporation and that the vehicle was furnished for his sole use is sufficient to establish that neither he nor the corporation gave authority to defendant to operate the vehicle on August 11. State v. Townsend, supra, [4]. We also believe that the timing and distance involved support a reasonable inference that the insurance company, which could not have received the assigned title before August 11, did not give defendant permission to operate the vehicle before his arrest on August 11. Furthermore, we may consider defendant’s testimony in passing on the sufficiency of the evidence. He testified he believed he owned the vehicle because he purchased it from a Mr. Eley in July. This is evidence that defendant had not obtained permission of the insurance company or anyone else because he did not believe he needed to. See State v. Morris, 460 S.W.2d 624 (Mo.1970) [1]. We find the evidence sufficient to support the conviction.

Defendant’s remaining point is that the trial court erred in failing to grant a mistrial as a result of the following questions by the prosecutor and answers by a policeman, appearing as a state’s witness:

“Q. Did you ever arrest him for operating a motor vehicle without the consent of the owner?
A. After I returned to the station, I informed him of what we had discovered and arrested him for that.
Q. What did he say, then?
A. He didn’t say anything.
Q. Did he ever tell you he would produce title for you?
A. In our earlier conversation.
Q. Did he tell you he was going to produce title when you told him he was under arrest for operating a motor vehicle without consent of the owner?
A. No, sir.”

Defendant objected and requested a mistrial. The trial court sustained the objection, admonished the jury to disregard, but denied the mistrial. The earlier conversation referred to followed defendant’s arrest by the policeman for operating a vehicle while his license was suspended. Defendant had at that time told the officer his auto papers were at home and his father could bring them in. The questioning complained of referred to occurrences after the police had obtained further evidence against defendant and placed him under arrest for the felony for which he was tried.

We must confess our mystification at why the prosecutor sought to establish the failure of defendant to make an exculpatory statement following his arrest in view of the cases in Missouri holding such evidence to be plain error requiring a new trial. See State v. Stuart, 456 S.W.2d 19 (Mo.banc 1970); State v. Benfield, 522 S.W,2d 830 (Mo.App.1975). The only purpose of the questioning was to present to the jury the defendant’s failure to make an exculpatory statement following his arrest on the felony charge. This failure was highlighted by his prior statement after arrest on the lesser charge. Defendant was under no duty to speak and his failure or refusal to do so may not be used as evidence against him. This is fundamental and basic constitutional law. The evidence against defendant was far from overwhelming and the questions and answers may well have tipped the balance against defendant. The court’s admonition to the jury to disregard the testimony was insufficient to remove the prejudice. Only the mistrial requested by defendant was sufficient to do that. State v. Benfield, supra, [10].

Judgment reversed and cause remanded for new trial.

CLEMENS, P. J., and McMILLIAN, J., concur.


text:
    STATE of Missouri, Respondent, v. Richard James JOYNER, Appellant.
    No. 38977.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 5, 1978.

      Dewey S. Godfrey, Jr., St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Charles D. Sindel, Asst. Circuit Atty., St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Richard James Joyner was charged by information with assault with intent to kill with malice, § 559.180 RSMo 1969, and with a prior conviction of a felony, § 556.280 RSMo 1969, and was found guilty by a jury and sentenced by the court to imprisonment for a term of 15 years. He appeals, and we affirm.

Appellant does not challenge the sufficiency of the evidence. A jury reasonably could find that early in the morning of July 17, 1975, appellant engaged in a physical encounter with Danny Crawford in a bar on Jefferson Street in the City of St. Louis, and that after the two left the bar, appellant shot Crawford in the right groin.

Appellant’s first point is that the trial court erred in failing to give his requested alibi instruction. The trial court gave an alibi instruction in the form of MAI-CR 3.20, which in its first sentence provided as follows:

“One of the issues in this case is whether the defendant was present at the time and place the offense is alleged to have been committed.”

Appellant contends that this is “vague and indefinite as to time and place” of the offense, and by the instruction he requested he proposed that in lieu of the words “at the time and place the offense is alleged to have been committed,” the following be substituted: “on the 17th day of July, at approximately 1:00 a. m. in an alley west of Jefferson and north of Ann Avenue in the City of St. Louis, State of Missouri when Danny Crawford is alleged to have been shot with a gun.”

Appellant admits that he engaged in a physical encounter with Crawford in Sto-rey’s Bar, but he denies that he was present outside the bar when Crawford was shot. He argues that it was essential that the jury was instructed that “the incident that they must concern themselves with was not the striking of Crawford inside of Storey’s, but the shooting outside of Storey’s in the adjacent alley.”

We find no merit to this contention. Instruction No. 5, the verdict directing instruction which followed MAI-CR 6.22, submitted:

“If you find and believe from the evidence beyond a reasonable doubt: First, that on July 17, 1975 in the City of St. Louis, State of Missouri, the defendant shot Danny Crawford, and * * *

There was no evidence that a shooting occurred at the time of the altercation in the bar between appellant and Crawford. The only evidence of any shooting was that which occurred outside. The “time and place the offense is alleged to have been committed” was outside Storey’s Bar where Crawford was shot. No jury composed of reasonably intelligent persons could have been caused to believe by the alibi instruction given by the court that even though they believed appellant was not present outside the bar when Crawford was shot, they were authorized to find him guilty of the charged offense if they believed that he previously engaged in. an encounter with Crawford inside the bar.

Rule 20.02(c) provides that “Whenever there is an MAI-CR instruction * * * applicable under the law to the facts, the MAI-CR instruction * * * shall be given * * * to the exclusion of any other on the same subject.” We find that MAI-CR 3.20 was applicable, and that the court did not err in refusing appellant's requested instruction which purported to modify MAI-CR 3.20.

Appellant next asserts that plain error resulted within the meaning of Rule 27.-20(c) when the “State * * * suppressed] from evidence and the consideration of the jury, the pellet removed from witness Crawford and a holster found at the scene of the occurrence although both were in the sole custody and control of the State,” and he further contends that it was error for the State not to produce said items pursuant to his request made under Rule 25.32(A)(9). Appellant seeks appellate review of this contention as plain error because he made no mention of the matter in his motion for new trial.

In a previous trial of this case a mistrial was declared because of misconduct of appellant’s sister in attempting to intimidate a witness. In his brief appellant states: “The State * * * produced these items [the pellet and the holster] at the first trial but did not do so [at] the second.” This is an admission that the existence and whereabouts of both items were known to appellant. In addition, it was brought out at trial that a holster was found by the police at the place of the shooting and that a bullet was removed from Crawford’s body. Appellant made no objection to that testimony, he expressed no surprise, and he did not make any request that the items be made available to him. There was no suppression of evidence in the sense that the State had possession of the items but appellant did not know and was not told of their existence.

Also, there is nothing in the record to show that any request by appellant was made pursuant to Rule 25.32(A)(9). He asserts in his brief that “Standard Discovery Motions were filed by [him] pursuant to Rule 25.32(A)(9),” but the transcript does not contain any such motion, and if in fact such a motion was made there is nothing before us to indicate the ruling of the trial court.

Under these circumstances there is nothing before this court on which it could rule the contention if it had been preserved for appellate review, and certainly no basis to consider the matter as constituting plain error.

In his third and final point appellant asserts that the trial court erred “in failing to afford to [him] the right to compel the testimony of witness Storey who claimed his right against self-incrimination or in the alternative [to sustain his] motion to dismiss [the] information.” He also asserts that the court “improperly failed to make the determination that the testimony asked of Storey would, in fact incriminate him as a matter of law * * *

Storey was the bartender at Storey’s Bar, and he witnessed the altercation between appellant and Crawford that occurred in the bar. He was subpoenaed by appellant, but after stating his name and address he refused to answer any questions on the basis that the answers would tend to incriminate him.

A recess was declared, and after a discussion between the court and counsel, appellant rested his case. We note that during the conference the court asked appellant’s counsel if it was his “intention to undertake to require [the court] to make him answer,” and counsel answered, “I don’t think you can.”

Appellant argues that “the trial court must conduct an inquiry of the witness to make the determination [whether his answer will tend to incriminate him] before it can either, allow him to invoke the privilege or compel him to answer the question.” He relies primarily on a quotation from Rogers v. United States, 179 F.2d 559 (10th Cir. 1950), contained in State ex rel. Lee v. Cavanaugh, 419 S.W.2d 929, 934 (Mo.App. 1967), but appellant does not set forth the entire quotation from the Rogers case, which we shall do and italicize the part omitted by appellant.

“ ‘From an analysis of these cases, we conclude the rule to be that the witness is not the sole judge as to whether his answer will tend to incriminate him; that when the question arises, it is for the court to determine from all the facts whether the question is of such a nature as might reasonably be expected to incriminate the witness, depending upon the answer thereto. If there is reason to believe that the answer might tend to incriminate the witness, he cannot be compelled to answer; neither can he be required to state why the answer might tend to incriminate him, because that would in itself to some extent constitute giving testimony against himself. Furthermore, a witness may not be required to give an answer which furnishes a link in a chain which would enable the Government to obtain the facts showing his guilt of a crime. It is also clear, from all the cases, that a witness may not refuse to answer because his answer might tend to incriminate others.’ ”

In the Cavanaugh ease, at p. 935, quoting again from the Rogers case, it was said: “ ‘Under these circumstances she [the witness] alone [knew] whether her answer would incriminate her and she was not required to answer nor was she required to furnish any fact in explanation of her refusal to answer, which would give the Government a lead * * * ’ in determining whether or not she was guilty of a crime.”

In an early case, Ex parte Gauss, 223 Mo. 277, 122 S.W. 741, 742 (1909), the Supreme Court of this State ruled that a trial court can compel testimony from a witness, in spite of the claim of the self-incrimination privilege, only “where the court can say, as a matter of law, that it is impossible that a witness would incriminate himself by answering a question one way or the other, * * *See also State v. Graham, 527 S.W.2d 722 (Mo.App.1975). As noted, the court can not require the witness to state his reasons for invoking the privilege, State ex rel. Lee v. Cavanaugh, supra; Brady v. Brady, 71 S.W.2d 42 (Mo.App.1934); Ex parte Arvin, 232 Mo.App. 796, 112 S.W .2d 113 (1937), and Missouri has followed the rule that if the trial court can recognize any rational basis for the claim of the privilege it cannot compel the witness to testify. State v. Brooks, 551 S.W.2d 634, 652 No. 30 (Mo.App.1977).

There was no request by the appellant that the court make an investigation before it determined whether the witness was entitled to invoke the privilege. In fact, the only relief requested was that “the information filed herein be dismissed.” Although Storey was appellant’s witness, after he claimed the privilege there was no further examination by appellant in an attempt to limit the examination to call only for answers which might not have been self-incriminating; for example, what the witness may have heard or seen.

Appellant advanced no argument to the trial court and advances none on this appeal as to why, in view of the total circumstances, the trial court could not reasonably find a rational basis for Storey to invoke the privilege. The court was not compelled to make, as appellant contends, an affirmative “determination that the testimony * * * would, in fact incriminate him as a matter of law * * *.”

We find no error in the action of the trial court.

The judgment is affirmed.

DOWD, P. J., and SNYDER, J., concur.


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert Lee CARTER, Defendant-Appellant.
    No. 39375.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 5, 1978.

      Joseph Webb, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Appellant Robert Lee Carter appeals from a judgment entered by the circuit court for criminal causes of the City of St. Louis upon a jury verdict finding him guilty of robbery in the first degree by means of a dangerous and deadly weapon. The trial court sentenced appellant to a term of twenty (20) years imprisonment.

For reversal appellant argues that the trial court erred in: (1) overruling appellant’s pretrial motion to suppress in-court identification testimony, (2) overruling appellant’s motion for judgment of acquittal at the close of the case, and (3) refusing to instruct the jury on the issue of attempted robbery. For the reasons discussed below, we affirm the judgment.

Briefly, the evidence presented to the jury showed that on the afternoon of July 20, 1976, Ms. Nyla Wilkins went to the supermarket. After finishing her-shopping, she returned to her car and placed her groceries and her purse on the back seat. After she got into the driver’s seat, a man, who had been sitting in the car parked next to her car, approached her with a gun in his hand. The man opened the door on the driver’s side before she was able to close it, stated that he was a police officer and demanded her purse. As he forced his way into the car, Ms. Wilkins fled by way of the passenger’s door. She ran into the supermarket for help. The supermarket manager and a store guard accompanied her to the parking lot. As they approached her car, the man started the car, pulled back into the parking space, got out of the car, and ran toward the street. The manager found a gun in the car parked next to Ms. Wilkins’ car. When the police arrived, Ms. Wilkins gave them a description of the man. The police subsequently arrested an individual fitting the description and brought him back to the scene of the incident. The police then informed Ms. Wilkins that the suspect would be standing by the police car. Ms. Wilkins identified the man sitting inside the police car as her assailant, not the man standing alongside. The supermarket manager and the guard also identified the man sitting inside the car as the man involved. Each identification was made in the presence of the other witnesses.

First, appellant argues that the trial court erred in overruling his pretrial motion to suppress in-court identification testimony because the manner in which the pretrial confrontation was conducted violated appellant’s constitutional rights. Appellant argues that the pretrial confrontation was impermissibly suggestive because the police had advised each identifying witness that a suspect was being returned for identification. We do not agree.

Although the use of pretrial confrontations is certainly not the best procedure of identification of suspects, see Holt v. State, 494 S.W.2d 657, 659 (Mo.App.1973), it is not impermissible for the police to immediately return a just-apprehended suspect to the scene of the crime for the purpose of allowing the witnesses to make an identification, e. g., State v. Madison, 537 S.W.2d 563, 564 (Mo.App.1976). In fact, prompt identification of a suspect may indicate to police whether to hold or release the suspect and thus whether to continue the investigation. E. g., State v. Jackson, 477 S.W.2d 47, 51 (Mo.1972). Nor is it improper procedure for the police to inform the identifying witnesses that the police have a suspect they might be able to identify. Such a statement was held to “[contain] no element of inaccuracy or undue suggestiveness” in State v. Armbruster, 541 S.W.2d 357, 361 (Mo.App.1976). Nor is it necessarily improper for the police to fail to separate the witnesses prior to their identification of a suspect. See State v. Dodson, 491 S.W.2d 334, 336 (Mo. banc 1973); State v. Bevineau, 460 S.W.2d 683, 685 (Mo.1970). The separation of witnesses at a pretrial confrontation is not a constitutional requirement, State v. Williams, 448 S.W.2d 865, 868 (Mo.1970); it is one of the factors to be considered under the totality-of-the-circumstances test as discussed below. See State v. Dodson, supra, at 338; State v. Williams, supra, at 868.

Whether a pretrial confrontation has been conducted in manner that was “unnecessarily suggestive and conducive to irreparable mistaken identification,” Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967), requires an evaluation of the totality of the circumstances surrounding the pretrial confrontation. Id., see State v. Boothe, 485 S.W.2d 11 (Mo. banc 1972); State v. Hamblin, 448 S.W.2d 603 (Mo.1970). The reviewing court will consider such factors as:

the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972); State v. Barnes, 537 S.W.2d 576, 578 (Mo.App.1976).

In the present case Ms. Wilkins observed the suspect at close range at the time of the crime, gave the police a good description and was certain of her identification of appellant at the pretrial confrontation. The crime took place in the late afternoon. About thirty minutes elapsed between the crime and the confrontation. Although appellant challenges whether Ms. Wilkins had sufficient opportunity to view the suspect, the duration of time is only one factor and does not necessarily indicate that the witness was unable to make an accurate identification. See, e. g., State v. Young, 534 S.W.2d 585, 589 (Mo.App.1976) (three seconds); State v. Davis, 530 S.W.2d 709, 712 (Mo.App.1975) (ten seconds). Appellant also argues that because Ms. Wilkins was “hysterical” at the time of the crime she was unable to accurately see appellant and that her emotional condition should be considered in evaluating the accuracy of her pretrial identification of appellant. We note, however, that “[t]he law does not require, as a condition to the admissibility of the testimony of the victim of a crime, that he remain unruffled during its commission and aftermath.” State v. Armbrus-ter, supra, at 361. Ms. Wilkins’ emotional state is relevant to her credibility as a witness but we find no indications in the record that demonstrates that she was so distraught as to impair her competency as a witness as a matter of law. Under these circumstances, Ms. Wilkins’ identification of appellant at the pretrial confrontation some thirty minutes after the crime did not taint the subsequent in-court identification. The trial court did not err in overruling appellant’s pretrial motion to suppress.

Similarly, the supermarket manager and the store guard observed the man get out of Ms. Wilkins’ car and walk off toward the street. Appellant walked past the manager within ten feet at one point. The guard followed the man down the street in his own car and even approached him and requested him to stop. While waiting in the parking lot, neither the manager nor the guard discussed the appearance or description of the man with each other or with Ms. Wilkins. Both the manager and the guard described the man’s appearance, general features and clothing as well as to later identify him at the pretrial confrontation.

Moreover, the testimony of the witnesses describing the man and the pretrial confrontation provided an independent basis for the in-court identifications. See, e. g., State v. Simmons, 559 S.W.2d 557, 561 (Mo. App.1977); State v. Jordan, 506 S.W.2d 74, 81 (Mo.App.1974).

Secondly, appellant argues the trial court erred in overruling appellant’s motion for judgment of acquittal at the close of the case. Appellant argues that the prosecution failed to produce sufficient evidence to establish a completed robbery because the necessary element of “taking” was not established. Appellant states that the prosecution did not show that the property alleged to be the subject of the robbery, Ms. Wilkins’ purse, had in any way been touched or disturbed or reduced to actual physical control by appellant. As discussed above, the evidence presented at trial showed that appellant opened the car door at gunpoint, demanded Ms. Wilkins’ purse, forced his way into the car, and, after she had fled out the passenger door, attempted to drive away in her car. The purse was located in the back seat of the car. Under these facts, we conclude that there was sufficient evidence to establish the taking element and thus the trial court did not err in overruling appellant’s motion for judgment of acquittal.

Appellant specifically argues that the evidence established only constructive possession of the purse, citing State v. Thompson, 414 S.W.2d 261 (Mo.1967) and State v. Hayes, 518 S.W.2d 40 (Mo. banc 1975). Thompson is distinguishable because its holding and analysis specifically concerned the necessary elements of attempted robbery, not with the question of constructive possession to establish taking. The case is also distinguishable on its facts. In Thompson, the defendant entered a store and struggled with the victim in an attempt to rob her. The woman escaped, leaving her purse behind. The defendant ran off without picking up the purse. The court held that the evidence supported a conviction of attempted robbery in the first degree. 414 S.W.2d 265. We also distinguish State v. Hayes in which our supreme court wisely refused to recognize possession of car keys as symbolic possession of the car for the offense of robbery. 518 S.W.2d at 46. The present ease does not involve a question of symbolic possession. Rather, appellant had possession of the purse because he had actual control, temporarily, of the car. In our opinion this brief but indirect control over the purse was sufficient to constitute a taking and thus a completed robbery. See, e. g., State v. Murray, 280 S.W.2d 809 (Mo.1955); State v. Thomas, 525 S.W.2d 833 (Mo.App.1975). Even if this degree of control were characterized as constructive possession, we are nonetheless persuaded that sufficient control was demonstrated to constitute a taking. See State v. Charles, 537 S.W.2d 855 (Mo.App.1976); see also United States v. Nedley, 153 F.Supp. 887 (W.D.Pa.1957). In State v. Charles the evidence established that the defendant had been in the process of robbing a store and had removed money from a cash drawer and narcotics from a cabinet and placed them in a bag when he was interrupted by the police. Even though the bag was not physically in the control of the defendant nor ever removed from the store, the court held “there was substantial evidence that manucapture of the narcotics and money occurred.” 537 S.W.2d at 857. Similarly, in the present case, even though appellant did not touch the purse, we believe there was substantial evidence of possession sufficient to constitute a taking in that appellant demanded the victim’s purse at gunpoint, took control of the car and attempted to drive off.

Appellant’s third point is that the trial court erred in failing to instruct the jury on the issue of attempted robbery in the first degree by means of a dangerous and deadly weapon. Appellant argues the evidence was insufficient to support the conviction for robbery and, even if the evidence was sufficient, that the trial court should have given the attempt instruction. We do not agree. As discussed above, there was substantial evidence that the crime of robbery “[I]f one in the course of a robbery (with all the other elements present) gains control of the property even for an instant, the crime is consummated.” State v. Charles, supra, at 857. Thus, under the facts of the present case which establish a completed offense, appellant could not have been convicted of the attempted offense, § 556.160 RSMo 1969. For this reason there was no need for the trial court to give an attempted robbery instruction. See, e. g., State v. Murray, supra, at 812; State v. Thomas, supra, at 835.

Furthermore, appellant’s assertion that the attempt instruction should have been given even if the evidence established a completed offense is erroneous. The same question was presented in State v. Charles where the defendant argued that the evidence presented a question of fact whether the offense had been completed and thus the trial court erred in refusing to give an attempt instruction. The court examined § 556.160 RSMo 1969 and concluded that under that section that a “conviction for attempt to commit an offense can only stand when there is no substantial evidence that the crime involved was actually consummated.” 537 S.W.2d at 856-57 (Emphasis in original.) Thus, if there is substantial evidence of a completed offense, the trial court does not need to instruct on the attempted offense, a position which is inconsistent with appellant’s argument.

Accordingly, judgment is affirmed.

CLEMENS, P. J., and SMITH, J., concur.


author: DOWD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Otis MONTGOMERY, Appellant.
    No. 39613.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 5, 1978.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Jeffrey A. Cowin, Asst. Circuit Atty., St. Louis, for respondent.
    Robert C. Babione, Public Defender, Thomas R. Motley, Asst. Public Defender, Bruntrager & Bruntrager, P. C., St. Louis, for appellant.
   DOWD, Presiding Judge.

A case of burglary in the second degree.

Otis Montgomery was convicted of second degree burglary, and pursuant to the Second Offender Act was sentenced to ten years in the Missouri Department of Corrections. On appeal, Montgomery contends that the trial court erred in two respects. First, it is asserted that the trial court committed plain error in denying Montgomery’s motion for a judgment of acquittal at the close of all the evidence because the State offered insufficient evidence on the “breaking” element. Second, it is asserted that the court committed plain error in allowing the arresting officer to testify to a statement made by Montgomery’s estranged wife.

In deciding the first point concerning the sufficiency of the evidence “after a verdict of guilty by a jury, the reviewing court accepts as true all evidence contained in the record tending to prove the defendant’s guilt, whether such evidence is direct or circumstantial in nature, together with all favorable inferences that can be reasonably drawn therefrom and disregards all contrary evidence and inferences.” State v. Reed, 453 S.W.2d 946, 949[5] (Mo.1970).

The following is a brief review of the facts adduced at trial. On the evening of April 25, 1976, Officer Dampier responded to a police call concerning a burglary in progress at 1480 Laurel. Upon his arrival, the officer observed that a pickup truck was backed into the garage on the premises. Inside the garage were the appellant, Montgomery, and a companion. When asked by the officer to explain his presence, Montgomery exhibited identification which contained his picture and stated his address as being 1480 Laurel. Montgomery explained that he and his friend were moving his belongings out of the garage. Before leaving, the officer verified this information with a resident at 1480 Laurel. The resident Montgomery’s estranged wife, explained that the appellant had been absent from the premises for the past month, due to their separation. She further stated that Montgomery owned a pickup truck. Satisfied with the explanation, the officer left.

Shortly thereafter, Officer Dampier received another call about a burglary at 1480 Laurel. He returned to the premises after a request was made that the police meet the owner of the property at the Laurel address. The owner, Meyer Zavodnick, informed the officer that no one had permission to enter the garage.

Officer Dampier and Mr. Zavodnick next saw Montgomery in December 1976, when they identified him at the police station. At that time, Montgomery offered to make restitution to Zavodnick if the latter would drop the charges.

At the trial, Zavodnick testified that the garage was secured by an overhead lock as well as a rear door padlock type lock. The padlock had been pried open, and bundles of shingles, cabinets, and a bathtub were missing from the garage. The missing items were estimated to be worth approximately $400.00. Mr. Zavodnick further testified that he had last locked the garage 10 days prior to the burglary, but had checked it since, as was his habit.

Appellant contends that the State failed to show that either he or his companion broke the padlock or opened the door to the garage.

The State’s case on this issue rests on circumstantial evidence. “In order to make a submissible case based upon circumstantial evidence, the facts and circumstances must 1) be consistent with each other, 2) be consistent with the hypothesis of the guilt of the accused, 3) be inconsistent with innocence, and 4) point so clearly to guilt as to exclude every reasonable hypothesis of innocence.” State v. Sallee, 436 S.W.2d 246, 249-50 (Mo.1969). This general rule has been refined to mean that where a case rests upon circumstantial evidence, the circumstances need not be absolutely conclusive of guilt and they need not demonstrate the impossibility of innocence. State v. Abbott, 547 S.W.2d 853, 854 (Mo.App. 1977).

The appellant has cited four cases in support of his contention that the State proffered insufficient evidence of a “breaking”. We are not persuaded that these cases warrant the reversal of the conviction.

The present case is distinguishable from State v. Ewing, 298 S.W.2d 439 (Mo.1957) because the owner of the burglarized premises in Ewing did not know of the “locked or unlocked status of the back window when he left the building less than 15 minutes prior to the defendant’s entry.” (298 S.W.2d 439, 443).

Similarly, in State v. Williams, 416 S.W.2d 71 (Mo.1967), the general manager of the burglarized premises did not testify that the windows and doors were locked when he left the property, prior to the burglary. In the case at bar, however, the owner testified that he had left the garage locked, and had habitually checked it thereafter.

In State v. Potter, 530 S.W.2d 268 (Mo. App.1975), the appellant’s conviction for second degree burglary was reversed because of insufficient circumstantial evidence to connect the appellant with the crime. In Potter, the tire marks found at the scene of the burglary were similar to those made by the vehicle which transported the defendant to a hospital. Such facts, inter alia, were held insufficient to support a conviction. The circumstantial evidence in the case at bar; however, was more formidable than that adduced in Potter.

In State v. Anderson, 555 S.W.2d 362 (Mo.App.1977) the court held the circumstantial evidence was sufficient to support a conviction. The accused therein was apprehended while escaping from the burglarized premises. The breaking was accomplished from the outside. In the present case, the appellant was questioned by police officers while on the burglarized premises, and the breaking was accomplished by prying the padlock from the outside.

From the evidence the jury could find that a burglary occurred; the padlock was pried open, the appellant’s pickup truck was backed into the garage, the appellant was in the garage when the officer arrived on the scene, and the appellant was present in the garage without the owner’s consent. Appellant’s offer to make restitution to the owner, taken with the other evidence, precludes any reasonable hypothesis of innocence. Accordingly, we rule the first point against the appellant.

The second point raised by the appellant is that the trial court committed plain error in allowing Officer Dampier to testify to a statement made by the appellant’s estranged wife. Although this testimony was not objected to at the trial, the appellant has requested our review pursuant to the plain error rule. Rule 84.13(c).

The testimony cited as objectionable by the appellant concerned a statement made by Mrs. Montgomery to Officer Dampier, to the effect that the appellant owned a pickup truck.

Section 546.260 RSMo 1969 provides that: “in no case shall husband or wife, when testifying under the provisions of this section for a defendant, be permitted to disclose confidential communications had or made between them in the relation of such husband and wife.”

Confidential communications have been defined as such as are exchanged between husband and wife when they are alone. Long v. Martin, 152 Mo. 668, 54 S.W. 473, 475 (Mo.1899). Where the husband and wife are competent as witnesses for or against each other, either of them may testify to any fact ascertained by them independent of their marriage relation, and not by reason of the confidence emanating from the marriage relation. It is immaterial that the knowledge was acquired during the existence of that relation and pertains to the transactions of one or the other. State v. Frazier, 550 S.W.2d 590, 596 (Mo. App.1977).

Appellant’s ownership of a pickup truck did not constitute a privileged confidential communication, such as would pass between husband and wife when they were alone. This being so, the case at bar is distinguishable from State v. Pace, 190 S.W. 15 (Mo.1916) which was cited by the appellant in support of his argument. In Pace, the wife was an active participant in the crime with which her husband was charged. Secondly, the objection was addressed to a detective’s testifying to the wife’s confession as to her theft of two rings. Both the husband and wife in Pace were concealing their possession of the stolen rings. Therefore, the extra judicial statement made by the wife concerned a matter held in confidence by the couple.

The cases relied upon by appellant are also distinguishable because the concept of interspousal immunity has undergone a metamorphosis since the decision was rendered in Pace. (For a history of the development see State v. Frazier, supra.) After a comprehensive analysis the court in Frazier concluded:

A spouse is now a competent witness against a defendant spouse in any criminal proceeding if the witness spouse willingly testifies; the option of doing so belongs to the witness spouse; and a witness is permitted, but may not be compelled, to testify in any criminal proceeding against a defendant spouse as to any relevant and admissible matter save confidential communications between the spouses. As the matters testified to by defendant’s ex-wife in the instant case did not, by any stretch of the imagination, relate to or spring from a confidential communication, the ‘interspousal immunity’ argument tendered by defendant is without merit.
Frazier, supra, at 596.

Since the content of the communication was not privileged, Officer Dampier’s testimony in this respect was permissible. Although this segment of Officer Dampier’s testimony may be categorized as hearsay, the admission of hearsay which does not have an unequivocal effect on the jury or result in a miscarriage of justice is not prejudicial error. Billings v. State, 503 S.W.2d 57 (Mo.App.1973). In view of the strong evidence of guilt independent of this testimony, such hearsay may be regarded as merely cumulative to the other evidence fully proving the issue. State v. Mills, 521 S.W.2d 495 (Mo.App.1975).

Accordingly, we rule the second point against the appellant.

The judgment is affirmed.

SNYDER, J., and ALDEN A. STOCK-ARD, Special Judge, concur.