author: GUNN, Presiding Judge.

text:
    Mary E. SHAFFER et al., Plaintiffs-Appellants, v. Robert COCHENOUR et al., Defendants-Respondents.
    No. 39009.
    Missouri Court of Appeals, St. Louis District, Division Three.
    June 27, 1978.
    Motion for Rehearing or Transfer Denied July 17, 1978.
    Application to Transfer Denied Sept. 12, 1978.

      J. William Holliday, Kahoka, for plaintiffs-appellants.
    Oswald & Cottey, Kirksville, for defendants-respondents.
   GUNN, Presiding Judge.

This appeal, involving a will contest, is from a judgment of the circuit court of Scotland County dismissing count I of plaintiffs’ petition for failure to join and serve all necessary parties within the statutory period as required by § 473.083. Appellants argue that the trial court erred in sustaining respondents’ motion to dismiss, in that all necessary parties were joined within the statutory time limits, although prior to trial one party was granted a voluntary dismissal and was not subsequently rejoined. We reverse and remand.

The testator, Earl Cochenour, died on March 3, 1976. Shortly thereafter a writing purported to be his last will and testament was admitted to probate in Scotland County, and Letters Testamentary were issued to his sons Wayne, Robert and Gary Cochenour. The first publication of the notice of granting letters in the estate appeared on April 15, 1976. Prior to that date, on April 5, 1976, plaintiffs Barbara Clowser, Mary E. Shaffer, Doris Hines and Bertha McBride filed a petition to set aside the will of their father, Earl Cochenour. Robert, Wayne, Betty, Gary and Janice Co-chenour, individually, and Robert, Wayne and Gary Cochenour, as executors, were named as party defendants. It was stipulated that all of the original plaintiffs, in addition to being heirs at law, were legatees under the contested will.

On July 15,1976, plaintiff Barbara Clow-ser, through her attorney, took a voluntary dismissal without prejudice under Rule 67.-01 V.A.M.R. Her attorney, who also represented two of the other plaintiffs, explained that Barbara Clowser, a California resident, sought dismissal because she did not wish to return to Missouri for a scheduled deposition. There was no attempt to rejoin her in the suit until January 18, 1977, when plaintiffs filed a motion to add her as a party defendant. She did not actually become a party to the suit on the remaining counts until March 11, 1977, when she filed a voluntary entry of appearance.

Meanwhile on January 13, 1977, defendants filed a motion to dismiss the will contest count alleging that the trial court was without jurisdiction because Barbara Clow-ser, a necessary party, was not joined in the suit as a party defendant within the time periods set out in § 473.083. A hearing was held on defendants’ motion at which time plaintiffs’ attorney admitted he had been aware that Barbara Clowser was a necessary party and that he had access to her address and telephone number but offered no evidence as to good cause for failing to join her as a party defendant. He argued, however, that because Barbara Clowser had originally been a plaintiff in the suit there was substantial compliance with § 473.083.

The trial court sustained defendants’ motion to quash the will contest count with prejudice. Plaintiffs appeal from that judgment. The pertinent provisions of § 473.083 relevant to this suit are:

“1. Unless any person interested in the probate of a will appears within six months after the date of the probate or rejection thereof by the probate court, or within six months after the first publication of notice of granting of letters on the estate of the decedent, whichever is later, and, by petition to the circuit court of the county contests the validity of a probated will, or prays to have a will probated which has been rejected by the probate court, then probate or rejection of the will is binding.
“4. In any such action the petitioner shall proceed diligently to secure and complete service of process as provided by law on all parties defendant. If service of process is not secured and completed upon all parties defendant within ninety days after the petition is filed, the petition, on motion of any defendant, duly served upon the petitioner or his attorney of record, in the absence of a showing by the petitioner of good cause for failure to secure and complete service, shall be dismissed by the circuit court at the cost of the petitioner.”

These provisions reflect the declared policy of this state that will contest suits be prosecuted expeditiously or not at all. Kane v. Mercantile Trust Co. N.A., 513 S.W.2d 362 (Mo.1974); Doran v. Wurth, 475 S.W.2d 49 (Mo.1971). There is no common law right to contest the validity of a will. The authority to do so is granted by statute and can only be exercised in accordance with the statutory prescriptions. State ex rel. Cooper v. Cloyd, 461 S.W.2d 833 (Mo. banc 1971); Cole v. Smith, 370 S.W.2d 307 (Mo.1963); Blatt v. Haile, 291 S.W.2d 85 (Mo.1956).

Under § 473.083, the contestant must file his petition to set aside the will within six months of probate or rejection of the will or of the first publication of the notice of granting letters on the estate of the decedent, whichever is later. Further, under subparagraph (4) of that section, the contestant must proceed diligently to complete service of process on each party defendant within 90 days after the petition is filed. Failure to file the suit and complete service of process on all necessary parties within the statutory time limits subjects the contestant to dismissal by the trial court unless good cause is shown explaining his inability to do so. Doran v. Wurth, supra; State ex rel. O’Connell v. Crandall, 562 S.W.2d 746 (Mo.App.1978); Godsy v. Godsy, 531 S.W.2d 547 (Mo.App.1975). The burden to prove the existence of good cause rests on the contestant. Sanderson v. Richardson, 432 S.W.2d 625 (Mo.App.1968). If the statutory time limits are not complied with and if the contestant fails to meet his burden of showing good cause, dismissal of the suit, upon defendants’ motion, is mandatory. Foster v. Foster, 565 S.W.2d 193 (Mo.App.St.L., 1978); Crawford v. Bashor, 564 S.W.2d 323 (Mo.App.1978). The statute, though in the form of a special statute of limitations governing will contests, actually confers jurisdiction on the circuit court to entertain such suits. Once the prescribed time period lapses the court is without subject matter jurisdiction and cannot proceed. Haas v. Haas, 504 S.W.2d 44 (Mo.1973); Blatt v. Haile, supra; Sanderson v. Richardson, supra.

In this case, Barbara Clowser, who was one of the legatees and an essential party to the will contest, was initially a party plaintiff who voluntarily dismissed herself from the proceeding. We find no violence done to § 473.083 by the remaining plaintiffs’ subsequent failure to make her a party defendant to the case. The purpose of § 473.083 is to join all interested parties in the will contest suit. Crawford v. Bashor, supra. In our application of the statute we are to give effect to that purpose. Laswell v. Industrial Com’n of Missouri, Etc., 534 S.W.2d 613 (Mo.App.1976). We are also to interpret the language of statutes reasonably. Hill v. Missouri Dept. of Public Health & Welfare, 520 S.W.2d 182 (Mo.App. 1975). The purpose of § 473.087 is fully met here inasmuch as Barbara Clowser was a party plaintiff to the proceedings and had full notice of them. In construing the rule requiring all beneficiaries to a will contest to be made parties to the proceedings, our Supreme Court said in Donnan v. Donnan, 264 S.W.2d 318, 328 (Mo.1954):

“We do not construe the . . rule . as applicable to every judgment setting aside a will, or as invariably requiring the joinder of a named beneficiary in a contest resulting in such a judgment. The purpose of that rule is to afford the beneficiary an opportunity to appear for the purpose of protecting his or her interest under the will and of supporting and defending the writing upon which his or her interest depends, and to have all necessary parties bound by the judgment.” (original emphasis)

In Donnan, the widow of the testator renounced her interest in the will prior to the will contest, and it was held that failure to join her as a party to the will contest was not fatal to the case. We believe that the reasons for finding that Barbara Clowser need not have been joined as a party defendant are stronger here than in Donnan. As Ms. Clowser was plaintiff at the time suit was filed, she would not have been a defendant at that time. As plaintiff, she had full notice of the proceedings and voluntarily withdrew. At the time this suit was initially filed, plaintiffs, with Barbara Clowser as one of the plaintiffs, were in compliance with § 473.083. Her withdrawal from the proceedings did not enervate plaintiff’s compliance with the statute. The purposes of § 473.083 were fully served, and it was not necessary for Ms. Clowser to subsequently be joined as a defendant.

Judgment reversed and remanded.

WEIER and KELLY, JJ., concur.

      . Statutory references are to RSMo. Supp.1975.

      . The petition was in four counts. The first sought to set aside the purported will. The second and third sought to set aside two deeds, executed by Earl Cochenour shortly before his death, which conveyed real estate to certain of the defendants. The fourth sought partition of real estate owned by Earl Cochenour. Only count I is relevant to this appeal.


source: Caselaw Access Project

author: ANDREW JACKSON HIGGINS, Special Judge.

license: Public Domain

text:
    MISSOURI VALLEY WALNUT COMPANY, Plaintiff-Respondent, v. Jim SNIDER and Tom Pannell, Defendants-Appellants.
    Nos. KCD 29043, KCD 29044.
    Missouri Court of Appeals, Kansas City District.
    July 3, 1978.
    Motion for Rehearing and/or Transfer Denied July 31, 1978.
    Application to Transfer Denied Sept. 12, 1978.

      Morton, Reed & Counts, James H. Counts, Christi M. Insco, St. Joseph, for defendants-appellants.
    Wendell E. Koerner, Jr., St. Joseph, for Tom Panned.
    Errol D. Taylor, St. Joseph, for plaintiff-respondent.
    Before WELBORN, Special Judge, Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Action by Missouri Valley Walnut Company against Jim Snider and Tom Panned for damages for breach of contract to deliver a quantity of walnut logs. Cross-claim by defendant Snider against codefendant Panned for damages for breach of contract between them to fulfill their contract with plaintiff.

Appeal (29043) by defendant Snider from verdict and judgment of $15,186.63 in favor of plaintiff against defendants, combined with appeal (29044) by defendant Panned from the verdict and judgment in favor of plaintiff, and from the verdict and judgment of $7,593.31, in favor of cross-claimant Snider against codefendant Panned. The question common to both appeals is whether the court erred in admitting a computer print-out in support of plaintiff’s damages. An additional question in Pannell’s appeal is whether the court erred in giving verdict-directing instructions 7 and 8 on Snider’s cross-claim. Affirmed.

Missouri Valley Walnut Company, located in St. Joseph, produces lumber, veneer, and gunstocks from walnut logs. Ozark Hardwoods, located in Springfield, produces lumber from walnut logs. Both companies were owned by C & D Sales Company. James Rowland was employed by Missouri Valley as a buyer of walnut logs, and had known Jim Snider and Tom Panned since 1966. He had purchased logs from Mr. Snider since 1967, and from him and Mr. Panned since 1972 when they started working together. Mr. Rowland’s purchases on behalf of Missouri Valley would be shipped to Missouri Valley Walnut Company in St. Joseph or to Ozark Hardwoods in Springfield at the direction of Missouri Valley depending upon where logs were needed.

In September, 1972, Missouri Valley, through Mr. Rowland, contracted with Mr. Snider and Mr. Pannell, as partners, to purchase $45,000 worth of walnut logs at a price of $0,275 per board foot. The logs were held in a log yard on the Frisco Railroad at Walnut Grove, Missouri. The partners were to ship the logs and Missouri Valley was to scale them either before shipment or after arrival at Missouri Valley in St. Joseph or its sister company, Ozark Hardwoods, in Springfield, as designated by Mr. Rowland.

On September 29, 1972, Missouri Valley advanced the $45,000 to Mr. Snider and shipments began the following week. Shipments to Missouri Valley and Ozark Hardwoods, as directed, continued whenever railroad cars were available until sometime in December, 1972. At that time Mr. Rowland was notified that Mr. Snider and Mr. Pan-nell had terminated their partnership. Mr. Snider and Mr. Pannell agreed that Mr. Pannell would fulfill the remainder of their obligation to Missouri Valley, and Mr. Pan-nell paid Mr. Snider $18,000 for his interest in the remaining Walnut Grove logs. Mr. Rowland was notified that Mr. Pannell would continue to ship logs to fulfill the $45,000 contract.

After December, 1972, Missouri Valley continued to receive logs on the contract both at St. Joseph and Springfield until late spring, 1973, when shipments ceased. Mr. Rowland called Mr. Pannell about the remaining shipments due and was informed first that the railroad was not furnishing enough cars and, later, that he did not owe Missouri Valley any additional logs.

To establish the balance due on the contract, i. e., its damages, plaintiff offered in evidence Exhibit 2 which was received over defendants’ objections as to foundation. Its admission is now assigned as error. In support, appellants assert that there was no testimony as to mode of preparation of the records that constituted the source of the information that went into preparation of the exhibit; that it was hearsay on hearsay; that it purported to show receipts at Ozark Hardwoods and there was no testimony of the method or time of preparation of records from Ozark Hardwoods; that no such records were produced in support of the print-out, and defendants were deprived of any opportunity to cross-examine or test the credibility of the sources.

Part of the agreement was that Mr. Rowland would scale the logs at Walnut Grove, or Mr. Snider and Mr. Pannell would ship them to one of Missouri Valley’s plants and the man on the yard there would scale them. Such would continue until $45,000 worth of logs had been received by plaintiff. When logs were scaled at point of shipment or upon receipt, a tally was made which listed the number of logs and the amount of board feet they contained. Such tallies would go to the office in St. Joseph for the office manager to record. Neither Mr. Snider nor Mr. Pannell scaled logs. Their business was to load the logs.

Willard Baber is the office manager and chief bookkeeper of the logging division of Missouri Valley Walnut Company at its office in St. Joseph. He receives information daily from buyers in the field and from the log inspection stations where the company receives logs. He checks such information, codes it as necessary, and feeds it to a computer. The print-out is delivered from the computer the following morning and he checks its accuracy against the original information. Such records are business records of the company, and he is responsible for gathering the daily records, reviewing them, and feeding them to the computer. When records from field buyers and from the log inspection stations are received, he reviews same and feeds their information' into the computer. Logs go through an inspection station when they are received by rail or truck. Log inspectors measure and grade the logs and send their information to his office the same as do buyers in the field. He checks inspectors’ information against inbound car records and tallies before sending it to the computer. The inbound car record book shows what railroad cars came into the plant with logs, and the point of origin.

The Walnut Grove transaction was given a buyer/producer/lot number, JO 9615. All records or transactions reference that account were credited or reflected in the company’s records to that number at or near the time they were done or received by the office. Exhibit 2 was identified by Mr. Baber as the logging ledger for account JO 9615, maintained under his direct supervision and control. It showed monies paid by Missouri Valley for purchase of logs at Walnut Grove, number of logs actually received from Walnut Grove on the account, and where same were received. Such record was kept and maintained in the ordinary course of plaintiff’s business.

Specifically, Exhibit 2 showed, with reference to the Walnut Grove transaction:

Mr. Baber, using Exhibit 2, stated that Missouri Valley received 3,503 logs containing 108,886 board feet which, at $0.275 per foot, had a value of $29,813.37, leaving $15,186.63 worth of logs still due and owing Missouri Valley.

Mr. Baber stated with respect to the accuracy of inspectors’ records, that “inspectors are responsible individuals trained in their jobs.” By experience, he can check the “reasonable” accuracy of inspectors’ figures. The company scales and measures the logs when received at either of its plants (St. Joseph or Springfield), and credit against the advance payment is made on the scaling. Mr. Snider and Mr. Pannell confirmed the arrangements for scaling.

The Uniform Business Records Act, Section 490.680, RSMo. provides:

“A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.”

The Act has been construed to render ineffective the objection that the record in question constitutes hearsay and that the preparer may not be present for cross-examination, Tri-State Motor Transit Co. v. Navajo Freight, 528 S.W.2d 475 (Mo.App.1975); that its requirements concerning sources of information and method and time of preparation vest in the trial court considerable discretion in passing upon admissibility of a document, and such discretion requires a determination whether the document has sufficient probative value to outweigh the opposing party’s opportunity to test factual statements and conclusion by cross-examination, Thomas v. Fred Weber Contractor, Inc., 498 S.W.2d 811 (Mo.App.1973); that “regular course of business” means in the inherent nature of the business in question, and in the method systematically employed for the conduct of the business as a business, Kitchen v. Wilson, 335 S.W.2d 38 (Mo.1960); that no particular form is essential in determining the status and admissibility of an account record, and such record in which entries were made each day by plaintiff with knowledge of defendants is admissible, Hancock v. Crouch, 267 S.W.2d 36 (Mo.App.1954); that computer read-outs are admissible in action for unpaid bills, Union Elec. Co. v. Mansion , House Ctr. No. Redev. Co., 494 S.W.2d 309, 314—315[9] (Mo.1973).

The last case cites Transport Indemnity Co. v. Seib, 178 Neb. 253, 132 N.W.2d 871 (1965), which, in dealing with computer-stored information, stated: “The purpose of the act is to permit admission of systematically entered records without the necessity of identifying, locating, and producing as witnesses the individuals who made entries in the records in the regular course of the business * * 132 N.W.2d l.c. 874[1]. Relying upon the foregoing case, King v. State ex rel. Murdock Acceptance Corp., 222 So.2d 393, 398[9] (Miss.1969), held “that print-out sheets of business records stored on electronic computing equipment are admissible in evidence if relevant and material, without the necessity of identifying, locating, and producing as witnesses the individuals who made the entries in the regular course of business if it is shown (1) that the electronic computing equipment is recognized as standard equipment, (2) the entries are made in the regular course of business at or reasonably near the time of the happening of the event recorded, and (3) the foundation testimony satisfies the court that the sources of information, method and time of preparation were such as to indicate its trustworthiness and justify its admission.” See also Anno: Business Records— Electronic Computer, 11 ALR3d 1377, 1378.

Appellants do not question the quality of plaintiff’s equipment. The testimony of Mr. Baber shows that the entries placed in the computer which resulted in the Exhibit 2 print-out were made in the regular course of business, at or near the time of the event recorded. The testimony of Mr. Rowland described the nature of plaintiff’s business and its relationship to defendants. Mr. Baber described how and when the original entries occurred, whether at Missouri Valley in St. Joseph or at Ozark Hardwoods in Springfield, how and when he compiled, reviewed and fed them to the computer, and how and when he subsequently reviewed their accuracy. The circumstances of this case insulated the trial court from an abuse of discretion in the admission of Exhibit 2. Transport Indemnity Co. v. Seib, supra, 178 Neb. 253, 132 N.W.2d l.c. 874-875.

The instructions in question follow:

“INSTRUCTION NO. 7
“Your verdict must be for defendant, Jim Snider, on his claim against defendant, Tom Panned, if you believe:
“First, defendant Tom Panned, agreed with Jim Snider that if Jim Snider would sell his interest in the logs at Walnut Grove, Missouri, to defendant Tom Panned, then the defendant Tom Panned would pay the defendant Jim Snider the sum of $18,000.00, and deliver the balance of the logs owing to the plaintiff, and
“Second, defendant Jim Snider did sell his interest in said logs to defendant Tom Panned, and
“Third, defendant Tom Panned failed to deliver the balance of the logs owing to plaintiff, and
“Fourth, defendant Jim Snider was thereby damaged.”
“INSTRUCTION NO. 8
“If you find the issues in favor of the Defendant Jim Snider on his claim for damages against Defendant Tom Panned, then you must award the Defendant Jim Snider such sum as you believe will fairly and justly compensate him for any damages you believe he sustained as a direct result of the failure by Defendant Tom Panned to deliver the balance of the Walnut logs owing to Plaintiff.”

Appellant Panned charges the court erred in giving the foregoing instructions on codefendant Snider’s counterclaim. He asserts that the only cause of action pleaded and supported in the cross-claim is one of indemnity, and therefore the instructions submitting a breach of contract were erroneous, and instruction form submitting indemnity should have been used. He argues also that the manner of submission exposes him not only to the judgment in favor of plaintiff of $15,186.63 but the additional sum of $7,593.32 as wed.

Defendant Snider’s cross-claim pleaded that he and Mr. Panned dissolved their partnership with respect to the Walnut Grove transaction, and as a part of the dissolution and for valuable consideration, Panned assumed and agreed to fulfill the obligations which Panned and Snider had entered into with Missouri Valley; that Panned agreed and guaranteed Snider to ship the balance of logs due plaintiff; that after demand was made on Snider by plaintiff for performance of the base contract, Snider made demands on Panned to perform the contract between him and Panned; that Panned failed so to do; that Snider was damaged.

This theory was supported in the evidence and was submitted by Instructions 7 and 8. It may be that instructions on indemnity could have been modified and used as were MAI 26.01 and MAI 4.01, in lieu of specific MAI instructions to cover the issues between Snider and Panned. However, the pleadings and evidence support the theory that Panned contracted with Snider to do a specific act, and not merely to hold him harmless. Such a covenant is not indemnity alone, but is an affirmative contract, the breach of which gives rise to a cause of action of the nature here pleaded and submitted. See Rule 55.-32(f), V.A.M.R.

Mr. Panned is not exposed to a total sum of $22,779.94 because the court, in entering judgment, limited execution on Snider’s judgment for $7,593.31 against Panned to issue “only in the event defendant Jim Snider satisfies the judgment heretofore entered on behalf of plaintiff in an amount in excess of * * * ($7,593.31); and upon the occurrence of such event Defendant Jim Snider shad be entitled to recover from Defendant Tom Panned only those sums which he has satisfied in excess of * * * ($7,593.31).” Appellant Panned registers no exception to the protection thus afforded.

Judgments affirmed.

All concur.

      . The random pieces shown as “Flitching” or “Cr. from Fit. Pricing” are the product of seven logs which produced veneer quality lumber.

      . It should be noted also how the times and entries in Exhibit 2 track the events and sequence of the Walnut Grove transaction as related by witnesses Rowland, Snider, and Pan-nell.


author: WASSERSTROM, Judge.

text:
    .FOREST CITY, Missouri, a Municipal Corporation, Appellant, v. CITY OF OREGON, Missouri, a Municipal Corporation, Respondent.
    No. KCD 29559.
    Missouri Court of Appeals, Kansas City District.
    July 3, 1978.
    Motion for Rehearing and/or Transfer Denied July 31, 1978.
    Application to Transfer Denied Sept. 12, 1978.

      Theodore M. Kranitz, St. Joseph, for appellant.
    Rupert G. Usrey, Oregon, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Forest City filed suit against the City of Oregon in three counts. The first two counts sought equitable relief against an increase in water rates, while the third count sought condemnation of certain fire hydrants. The trial court sustained a motion to dismiss as to the first two, and ruled that judgment separate and final for purposes of appeal. Forest City appeals from that judgment. Counsel for Oregon have filed no brief nor made any appearance in this court, thereby increasing the difficulty of dealing with this appeal. We nevertheless affirm.

The parties have stipulated as to the facts. On January 26, 1898, Oregon, through appointed agents, and Forest City, through an appointed committee, entered into what purported to be a contract providing for Oregon to erect a waterworks within the town limits of Forest City (under which lies a supply of underground water) to supply water to both cities and their respective inhabitants. Forest City supplied the site and $800 for the enterprise, and Oregon assumed the balance of all expense. Under the agreement, Oregon undertook “to furnish said Town of Forest City water at reasonable rates and to furnish water to its inhabitants at the same rates and on the same terms as water is hereafter by said City of Oregon furnished to the inhabitants of the City of Oregon.”

In 1954, Oregon abandoned the original waterworks site and constructed a new one at a different site within the limits of Forest City entirely at the expense of the residents of Oregon, who floated a general obligation bond issue for that purpose. At all times from 1898 until 1976, Oregon continuously supplied water to the inhabitants of Forest City at the same rate that water was supplied to the inhabitants of Oregon.

However, on May 12,1976, Oregon adopted Ordinance No. 125 which established a water rate for nonresidents higher than that to be charged residents. Forest City protested the adoption of the new rates, and an approach of some undisclosed character was made to the Missouri Public Service Commission. The stipulation of facts states that “the parties have been informed by the Missouri Public Service Commission that, in the opinion of the Commission, it has no jurisdiction over the regulation of rates charged by the City of Oregon for water sold to residents of the City of Forest City * * * Counsel for the parties have been informed by the Public Service Commission of Missouri that it will assume jurisdiction of the dispute if requested to do so by the City of Oregon.” Oregon has declined to make such a request to the Commission.

For its first point on this appeal, Forest City contends that the trial court erred in dismissing Counts I and II of the petition for the reasons “more specifically outlined in Points II and III hereof.” Its Point II contends that Count I of the petition stated a cause of action “in asking the trial court in the exercise of its equitable powers, to pass on the legality of the proposed water rate increase; or on the necessity for it; or on any other aspect of the proposed increase, including the question of whether or not the rate classification and disparity which defendant seeks to establish in its ordinance is reasonable.” Its Point III contends that Count II of the petition stated a cause of action “in asking the trial court in the exercise of its equitable powers to transfer the cause to the Public Service Commission, or to compel defendant to request the Commission to assume jurisdiction.”

The first of Forest City’s points serves only as an introduction to the other two points and states no independent ground of review. Therefore, only Points II and III need be discussed. They will be taken up in reverse order.

I.

Jurisdiction of the Pubiic Service Commission

In the argument portion of its brief, Forest City suggests that the Commission does have statutory authority to pass upon and regulate the water rates charged by Oregon to the residents of Forest City. It errs in that suggestion.

The 1913 original Public Service Commission Act did grant to the Commission specific power to regulate rates and services of municipally operated public utilities. That authority was thereafter somewhat narrowed by a 1917 amendment which limited the Commission to jurisdiction of such rates to only those rates charged for water used beyond the corporate limits of the municipality.

Pursuant to these statutory provisions, the Missouri Supreme Court initially considered that the Commission had the power to regulate water rates charged by municipal corporations sold beyond its borders. Public Service Commission v. City of Kirkwood, 319 Mo. 562, 4 S.W.2d 773 (1928); Speas v. Kansas City, 329 Mo. 184, 44 S.W.2d 108 (1931). However, the Supreme Court subsequently ruled that the statutory grant of power to the Commission to regulate municipally owned public utilities was unconstitutional. City of Columbia v. State Public Service Commission, 329 Mo. 38, 43 S.W.2d 813 (1931); State ex rel. Union Electric Light & Power Co. v. Public Service Commission, 333 Mo. 426, 62 S.W.2d 742 (1933); State ex rel. City of Sikeston v. Public Service Commission of Missouri, 336 Mo. 985, 82 S.W.2d 105 (1935).

This series of opinions left some doubt as to the status of the Commission’s authority concerning any regulation of municipally owned utilities. This problem was directly addressed by the legislature by its 1949 statutory revision. At that time the sections defining the powers of the Commission were changed to delete authority for jurisdiction over municipal utilities.

Notwithstanding the 1949 revisions just mentioned, Section 386.250(7) was left on the statute books intact. Two administrative legal opinions have been rendered, both concurring in the opinion that Section 386.-250(7) is not effective alone to confer any power upon the Commission to regulate municipal utility rates, even with respect to water sold beyond the corporate limits. Opinion of the Attorney General No. 6 dated April 27, 1967; Opinion of the General Counsel, Missouri Public Service Commission, No. 73-1 dated May 22, 1973. The conclusions reached in those opinions, in the light of the legislative and judicial history just outlined, are logical and convincing. We adopt those conclusions and hold that the Missouri Public Service Commission does not have jurisdiction to regulate the rates charged by Oregon to the City or residents of Forest City. This alone prevented the trial court from acceding to Forest City’s request that this case be transferred to the Commission.

As an alternative approach, Forest City argues that the Commission will take jurisdiction if so requested by Oregon, and Forest City urges that this court order Oregon to make such a request. The question immediately suggests itself whether the Commission could properly assume jurisdiction purely on consent of the parties, absent statutory authority. Passing that question, Forest City cites no law or any appropriate theory upon which a court could make an order upon Oregon to request or consent to jurisdiction by the Commission, and we perceive no valid theory upon which this could be done.

Forest City further suggests that the trial court could have appointed the Commission and referred this rate matter to it as a master under Rule 68.01. Aside from other questions, such action by the trial court would depend upon a showing of some authority in it to assume independent jurisdiction over this rate matter. This leads directly to a discussion of Forest City’s other Point on Appeal.

II.

The Alleged Independent Judicial Jurisdiction to Review Reasonableness of the New Rates

Where, as is the situation here, no administrative body has jurisdiction of the rate regulation, the courts do have an equitable jurisdiction to prevent a municipality from enforcing public utility charges which are clearly, palpably and grossly unreasonable. 64 Am.Jur.2d, Public Utilities, Section 128, p. 654; City of Mt. Vernon v. Banks, 380 S.W.2d 268 (Ky.1964); American Aniline Products v. City of Lock Haven, 288 Pa. 420, 135 A. 726 (1927).

That principle, however, applies only when the city is acting in the nature of a public utility. A considerable line of cases hold that a city does so only to the extent that it supplies the utility service to its own inhabitants, and that as to nonresidents, the municipality owes no duty of service, sells in purely private capacity on a purely contractual basis, and cannot be regulated as to the rates charged. 78 Am.Jur.2d, Waterworks and Water Companies, Section 6, p. 896; Childs v. City of Columbia, 87 S.C. 566, 70 S.E. 296 (1911); City of Phoenix v. Kasun, 54 Ariz. 470,97 P.2d 210 (1939); City of Colorado Springs v. Kitty Hawk Development Co., 154 Colo. 535, 392 P.2d 467 (banc 1964); State of Florida v. City of Melbourne, 93 So.2d 371 (Fla.1957); Davisworth v. City of Lexington, 311 Ky. 606, 224 S.W.2d 649 (1949); Adkisson v. Ozment, 55 Ill.App.3d 108, 12 Ill.Dec. 790, 370 N.E.2d 594 (1977); Atlantic Construction Co. v. City of Raleigh, 230 N.C. 365, 53 S.E.2d 165 (1949).

The philosophy of those cases has been adopted by the Missouri Legislature with respect to the sale of water by a municipality to nonresidents. Section 91.050 provides that any city may supply water from its waterworks to other municipal corporations for their use and the use of their inhabitants and “also to persons and private corporations for use beyond the corporate limits of such city, and to enter into contracts therefor, for such time, upon such terms and under such rules and regulations as may be agreed upon by the contracting parties.” Similarly, Section 91.060 provides that any city may supply any other city “upon such terms and under such rules and regulations as it may deem proper.” By these statutory provisions, the Missouri General Assembly clearly has left the sale of water by a city to nonresidents as a matter of voluntary contract, free from regulation.

Even aside from that, a rate does not become unreasonable or discriminatory simply because a municipality charges more to nonresidents than it does to its own inhabitants. 78 Am.Jur.2d, Waterworks and Water Companies, Section 6, p. 896; 64 Am.Jur.2d, Public Utilities, Section 120, p. 647; 94 CJ.S. Waters § 297b, p. 205; Annotation “Discrimination between property within and that outside municipality or other governmental district as to public service or utility rates,” 4 A.L.R.2d 595, Section 4, l.c. 599; Guth v. City of Staples, 183 Minn. 552, 237 N.W. 411 (1931); State of Florida v. City of Melbourne, supra.

III.

Other Unpreserved Argument

It must be repeated that Forest City makes no effort to enforce the contract of January 26, 1898, as such. However, in the argument portion of its brief, it speaks of the long-continued performance under the 1898 agreement as having acquired “the force of law” through operation of custom and usage. This argument is not within the scope of the Points Relied Upon, and therefore has not been properly presented for consideration. Rule 84.04(d). Nevertheless, it can be answered briefly that custom and usage can be effective only to help interpret a contract, not to create a contract. State ex inf. Crow v. Atchison, T. & S.F. Ry. Co., 176 Mo. 687, 75 S.W. 776, 780 (banc 1903); State ex rel. Chicago, M. & St.P. Ry. Co. v. Public Service Commission of Missouri, 269 Mo. 63, 189 S.W. 377 (banc 1916); Leonard v. Dougherty, 221 Mo.App. 1056, 296 S.W. 263 (1927); Piper v. Allen, 219 S.W. 98 (Mo.App.1920). Moreover, it has been held that nonresidents of a municipality can obtain no rights to perpetual continuance of a given rate for a municipally offered utility service simply by reason of the fact of long performance by both parties under a contract specifying no termination date. Childs v. City of Columbia, supra; Adkisson v. Ozment, supra.

Affirmed.

All concur.

      . The judgment considered not only the pleadings filed but also “the stipulations and agreements of counsel entered into at the pretrial conference” and the court found that Counts I and II “fail to state a claim upon which relief can be granted and that there is no genuine issue as to any material fact alleged in these counts of plaintiffs petition.” The judgment therefore appears to have been as much in the nature of a summary judgment under Rule 74.-04 as it does a judgment sustaining motion to dismiss.

      . Forest City makes no effort in this case to enforce the “contract” dated January 26, 1898, as such. In its petition it states that the validity and enforceability of that instrument as a contract “is not an issue in this case.”

      .Residents of Oregon were to be charged a minimum of $3.15 for the first 1000 gallons, $1.65 for the next 2000 gallons, $1.40 for the next 3000 gallons and $1.15 for all water in excess of 6000 gallons.
      Nonresidents were to be charged a minimum of $3.65 for the first 1000 gallons, $2.15 for the next 2000 gallons, $1.90 for the next 3000 gallons and $1.65 for all water in excess of 6000 gallons.

      . The 1917 amendment still remains as presently numbered Section 386.250(7) which grants jurisdiction to the Public Service Commission as follows:
      “The jurisdiction, supervision, powers and duties of the public service commission herein created and established shall extend under this chapter:

      (7) To all water corporations, and to the land, property, dams, water supplies, or power stations thereof and the operation of same within this state; provided, that nothing contained in this section shall be construed as conferring jurisdiction upon the public service commission over the service or rates of any municipally owned water plant or system in any city of this state, except where such service or rates are for water to be furnished or used beyond the corporate limits of such municipality.”
      All statutory references in this opinion are to RSMo 1969, unless otherwise specifically noted.

      .See revision comment to Section 393.130 which reads as follows:
      “As originally enacted, sections 5645, 5646, 5647, 5648 and 5659, R.S.1939, empowered the Public Service Commission to regulate municipally owned and operated utilities. However, in City of Columbia v. Public Service Commission, 329 Mo. 38, 43 S.W.2d 813, the Supreme Court ruled that the Commission did not have such power. Therefore these sections were repealed and reenacted as this section and Sections 393.140 to 393.160 omitting the reference to municipal utilities.”

      . This interpretation also serves to avoid conflict with Sections 91.050 and 91.060 which are discussed below in part II of this opinion.

      . The trial court commented colorfully on that question as follows: “I am not aware of any concept of law that permits jurisdiction to be conferred by consent of the litigants. It has always been my understanding that jurisdiction is to a tribunal what beauty is to a woman; either she has it or she doesn’t, and the lack of it can nowise be supplied by agreement on its desirability.”


author: SMITH, Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. Godwin PFITZINGER et al., exceptions of Donald E. Roth et al., Defendants-Respondents.
    No. 39176.
    Missouri Court of Appeals, St. Louis District, Division No. One.
    July 5, 1978.
    William Darmstaedter, Kirkwood, John W. Maupin, Bruce A. Ring, Jefferson City, for plaintiff-appellant.
    Samuel C. Ebling, Gregory F. Hoffman, Millar, Schaeffer & Ebling, St. Louis, David A. McMahon, Love, Lacks & McMahon, Clayton, for defendants-respondents.
   SMITH, Judge.

The State Highway Commission appeals from a judgment in a condemnation case based upon a jury verdict awarding defendants $1,823,567 damages for land taken by the Commission for a highway. We affirm.

On appeal plaintiff raises two points. The first involves the action of the trial court in permitting a Mr. Fitzhugh to testify. That witness was called by the defendants to testify to the sale price of land located nearby the property in suit. The objection was based upon defendants’ failure to disclose Fitzhugh’s name in answer to the following interrogatory:

“State whom Donald E. Roth plans to call at trial as witnesses in the above captioned case.”

Initially, we note that the matter was not properly preserved. The only objection came when defendants were conducting their voir dire examination of the veniremen and inquired whether any of the veniremen knew a probable witness, Mr. Fitzhugh. The court overruled plaintiff’s objection and indicated its intention to permit Fitzhugh to testify. No objection was made to Fitzhugh testifying thereafter, until the motion for new trial. The proper time for such an objection is when the witness is offered as a witness. The court’s action on the voir dire objection is only a ruling that the question may be asked on voir dire. It is not a ruling that the witness may testify.

Secondly, the interrogatory was improper and the information requested is beyond the scope of discovery. State v. Jensen, 395 S.W.2d 143 (Mo.banc 1965); Miller v. Iler, 556 S.W.2d 492 (Mo.App.1977); Rule 56.01. While the proper method of attacking such attempted improper discovery is through objection, rather than by not answering (See Rule 61.01), we can find no abuse of discretion by the trial court for refusing to impose sanctions for failure to answer a clearly improper question. Further support for the court’s action is found in the facts that: (1) plaintiff knew about the sale and Mr. Fitzhugh’s identity; (2) the failure to depose Fitzhugh was not plaintiff’s lack of knowledge of him, but plaintiff’s supposition that he would not be called; and (3) the witness’ testimony was unnecessary in view of State ex rel. State Highway Commission v. Jasper, 544 S.W.2d 554 (Mo.banc 1976) handed down Dec. 30, 1976, four days before the trial, and known to plaintiff but not defendants.

The second point is that the trial court erred in refusing to permit plaintiff’s expert to testify to the sales prices of land utilized by that expert in making his appraisal of the damages under the comparable sales method. In 1974, the Supreme Court of this state held that in condemnation cases similar to this one, experts could not use the “cost of development” method of appraisal. See State ex rel. State Highway Commission v. Southern Development Co., 509 S.W.2d 18 (Mo.1974) [6-9], Despite this, in 1976, when the expert in this case was deposed, he based his appraisal upon that method. As a result he did not testify on deposition to comparable sales. Two days before the witness appeared, the State Highway Commission “found out” that defendants would object to the witness using a judicially condemned method of appraisal. At that point the witness reworked his appraisal using a comparable sales approach, and utilized sales of parcels of which defendants had not been made aware. The trial court permitted the expert to testify and to identify the parcels used but refused to allow the expert to testify concerning the price of any parcel not previously identified to defendants. We find no error. Under Rule 56.01(b)(4)(b), defendants were entitled to discover on deposition the facts and opinions to which the expert was expected to testify. Following the deposition defendants, under the Southern Development case, could have expected to prevent the expert from testifying at all. When at the last minute the Commission sought to offer the expert to testify to an entirely different method of appraisal, the trial court could justifiably have refused to allow the expert to testify. Rule 61.01(d)(1). We find no abuse of discretion in the trial court limiting the testimony of the expert to facts which had been revealed to defendants. Plaintiff has no ground for complaint that the trial court treated it more favorably than it need have.

Judgment affirmed.

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

      . Defendants’ answer was “Unknown at this time.” The answer was never updated.


text:
    In re the MARRIAGE OF Donna JOHANSON, Petitioner-Respondent, and Samuel Johanson, Respondent-Appellant.
    No. 38815.
    Missouri Court of Appeals, St. Louis District, Division No. One.
    July 5, 1978.
    Paxton H. Ackerman, Clayton, for respondent-appellant.
    Vincent S. Moody, Clayton, for petitioner-respondent.
   SMITH, Judge.

Defendant appeals from the action of the trial court in modifying child support payments. The decree of dissolution was entered in May, 1974, and provided for weekly child support payments of $30 per week for each of the three children of the marriage. In June, 1976, plaintiff-mother sought a modification to increase the support for the two daughters to $50 per week and the support for the son to $80-$100 per week. After hearing, the court ordered a modification as to the son to $50 per week, to the elder daughter to $40 per week, and no increase for the younger daughter.

The evidence as to the son clearly supports the court’s action. After the dissolution the son developed emotional problems with which neither parent could cope. The parties contacted the Methodist Children’s Home and that institution admitted the boy to the Home at a charge of $50 per week. This was clearly a changed and continuing circumstance, not anticipated by the parties, and supported the court’s modification as to the boy. The evidence further establishes the father’s ability to meet this increased obligation.

As to the daughter, a different situation prevails. Under Sec. 452.370 RSMo. Supp. 1975, a dissolution decree provision for child support may be modified “only upon a showing of changed circumstances so substantia] arid continuing as to make the terms unreasonable.” As we stated in Plattner v. Plattner, 567 S.W.2d 139 (Mo.App.1978), this provision was enacted to implement a stricter standard of modification, thereby discouraging repeated and insubstantial motions for modification. See also Seelig v. Seelig, 540 S.W.2d 142 (Mo.App.1976). The burden of establishing the substantiality and continuousness of the change is on the movant. Plattner v. Plattner, supra; Sifers v. Sifers, 544 S.W.2d 269 (Mo.App.1976). We recognized in Plattner, supra, that costs of children increase with age and that inflation decreases the purchasing power of the dollar, and that these factors can support a modification. However, we must also presume that since aging and inflation are respectively inevitable and predictable, such factors are taken into account in making the original award of support. It, therefore, is necessary that evidence be introduced to show that the original award was insufficient to provide for the present needs of the child. Plattner v. Plattner, supra. Particularly where the time between the original award and the modification is relatively short, movant does not carry the burden simply by testifying to predictable general increases in the children’s expenses due to aging and inflation.

In this case, movant introduced no evidence of her expenses for the children at the time of the dissolution nor of any specific increases between then and the date of modification. She spoke generally in terms of increased automobile insurance premiums, clothing and food. She admitted that at the time of the decree it was contemplated the children would have increased expenses as they grew older. Since the items testified to are expected and predictable increases, neither we nor the trial court can presume they were not anticipated and considered by the court at the time of the original award. We find the modification as to the elder daughter unsupported by the evidence.

Judgment affirmed as to the increase in support for the son, Samuel Alan Johanson, and reversed as to the increase in support for the daughter, Lori Ann Johanson.

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


text:
    STATE of Missouri ex rel. CITY OF MAPLEWOOD, Relator, v. Hon. William H. CRANDALL, Jr., Respondent.
    No. 39401.
    Missouri Court of Appeals, St. Louis District, Division Three.
    July 5, 1978.

      Jack C. Harper, Dennis A. Buchheit, Clayton, for relator.
    Daniel Y. O’Brien and Robert A. Cuiffa, St. Louis, for respondent.
   GUNN, Presiding Judge.

Petitioner City of Maplewood seeks prohibition to prohibit the respondent trial court from enjoining the enforcement of a municipal ordinance as it would apply to its chief of police, Carl Porter. We issued our preliminary writ of prohibition, which, for reasons stated, we now dissolve.

In 1975, Maplewood adopted Ordinance No. 3820 providing tenure for all city department heads, including the chief of police, having worked for the city more than ten years. Specifically, Ordinance No. 3820 as it pertained to the chief of police provided:

“Any person that has been an employee of the City for more than ten years and has been appointed to the Office of Chief of Police . . . shall be deemed to have held the rank of Major in said department, and upon termination of his status of Chief, if still available for service and not terminated, for conduct a violation of law and amounting to moral turpitude shall revert to the rank of Major and shall receive tenure as Major under Civil Service during the period he serves as Chief. Any employee reverting to the rank of Major shall be paid an annual salary that shall be at least that of the rank next- below that of Major.

Porter, who apparently had more than ten years of service with Maplewood, had been appointed chief of police in 1969 and reappointed in 1973. After Maplewood’s 1977 municipal elections, he was not reappointed as chief.

On April 25, 1977, Maplewood adopted Ordinance No. 3873 purporting to repeal the tenure ordinance — No. 3820. At the same time, Porter was not reappointed as chief of police, and his employment with the police department was involuntarily terminated. Porter then petitioned the respondent trial court “For Injunctive Relief and for a Temporary Restraining Order” declaring Ordinance No. 3873 (the tenure repealer) void, and restraining Maplewood from interfering with his employment and paying him at a police major’s rate of pay. Respondent issued a temporary restraining order granting the relief Porter had sought and reinstating him as chief of police until hearing on a “temporary injunction” could be held. After hearing, the respondent trial court issued its order dissolving the temporary restraining order and providing that, pending hearing on a permanent injunction, Porter would revert to the rank of major and that Maplewood be enjoined from enforcing the tenure repealer ordinance. Maple-wood’s petition for prohibition followed charging that respondent had exceeded its jurisdiction in the following regards: (1) by trying title to a public office in an equitable proceeding; (2) by usurping the executive powers of appointment of municipal officials; (3) by bypassing the procedures of Rule 100 pertaining to administrative review by prematurely reviewing the City Council’s action before an order subject to circuit court review had been issued.

1. We find that, contrary to Maple-wood’s contention, respondent’s order does not try title to public office. Although the temporary restraining order initially issued by respondent would restrain Maplewood from interfering with Porter’s position as police chief, the order was dissolved and is no longer in effect. It was replaced by an order entitled “Temporary Injunction” which does not interfere with Maplewood’s termination of Porter as police chief. The new order merely restrains Maplewood from enforcing the tenure repealing ordinance against Porter, and we do not construe it as trying title to public office.

2. Prohibition is the proper remedy to prevent a lower court from acting in excess of its jurisdiction. State ex rel. St. Louis County v. Stussie, 556 S.W.2d 186 (Mo. banc 1977); State ex rel. O’Connell v. Crandall, 562 S.W.2d 746 (Mo.App.1978). But it is the relator Maplewood’s burden of proof to establish that the trial court has exceeded its jurisdiction. State ex rel. Allen v. Yeaman, 440 S.W.2d 138 (Mo.App.1969); State ex rel. Boswell v. Curtis, 334 S.W.2d 757 (Mo.App.1960). We find that Maplewood has failed to carry its burden. A trial court has jurisdiction to interfere with the enforcement of an invalid ordinance where injury to property rights would be irreparable. See State ex rel. Cervantes v. Bloom, 485 S.W.2d 446 (Mo.App.1972). Further, there is a presumption of right action on the part of the trial court and that it is acting within its jurisdiction. State ex rel. Cummings v. Witthaus, 358 Mo. 1088, 219 S.W.2d 383 (banc 1949); State ex rel. Allen v. Yeaman, supra. In this case, the validity of the tenure repealing ordinance was at issue before the respondent trial court, and enforcement of that ordinance as it related to Porter was enjoined — at least temporarily. The record contains no copy of the tenure repealing ordinance — Ordinance No. 3873 — and we do not take judicial notice of it. Feely v. Birenbaum, 554 S.W.2d 432 (Mo.App.1977). We have nothing before us which permits us to determine whether the respondent trial court has exceeded its jurisdiction in refusing to allow enforcement of the tenure ordinance. Applying the rule of presumption that the trial court has acted correctly and within its jurisdiction, we have had nothing presented which permits us to disturb that presumption. Certainly, without the tenure repealer as a part of the record, we could not find that the respondent would be acting outside its jurisdiction in interfering with the enforcement of an invalid ordinance. We have no way of determining whether the ordinance would be valid or invalid.

3. Finally, we do not view respondent’s action as a review of the City Council’s decision which would require application of administrative review procedures. The validity of the tenure repealing ordinance has been challenged by Porter. By its “temporary injunction” the trial court has enjoined the enforcement of the challenged ordinance until complete hearing can be held to determine its validity. By so doing the respondent court has not exceeded its jurisdiction. The administrative review procedures are not applicable.

The preliminary writ of prohibition is quashed.

WEIER and KELLY, JJ., concur.

      . The record is sketchy, but averments that Porter had worked for Maplewood for eighteen years have not been challenged.


author: STEWART, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Ralph Edward WARD, Appellant.
    No. 38594.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 11, 1978.

      David J. Kueter, St. Charles, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Robert Presson, Asst. Attys. Gen., Jefferson City, George F. Meyer, Jr., Courtney Goodman, Jr., Pros. Atty., Clayton, for respondent.
   STEWART, Presiding Judge.

Defendant was convicted of murder second degree and sentenced to a term of ten years in the custody of Missouri Department of Corrections. For reversal on appeal defendant contends that the court erred in: (1) giving instructions on first and second degree murder because there was insufficient evidence to warrant the submissions; (2) in permitting the State, on voir dire, to seek a commitment from the jurors to assess penitentiary time if defendant was found guilty; (3) permitting the State to introduce a photograph of deceased after the autopsy and introducing the shirt he was wearing when shot; and (4) in failing to grant a new trial on the basis of newly discovered evidence. We affirm.

Ralph Ward, the defendant, was separated from his wife and lived with his father, Seth Ward (Seth). Defendant and Paul Hampton (Paul), the victim, cultivated a community garden. On August 11, 1975 defendant and Paul had a dispute over the garden and Paul destroyed the garden. Defendant called Paul by telephone and heated words were exchanged. Shortly after the telephone conversation defendant and Seth went to Lord Byron’s Tavern. Before leaving the house defendant got a shot gun and placed it on the floor of the rear part of his car.

Lord Byron’s Tavern is a neighborhood tavern on St. Francois Street in Florissant, Mo., which was frequented by Paul Hampton and the Wards. It is located on a shopping area which, among other businesses has the tavern, a carpet shop, a drapery shop and a resell it store. There is a parking lot in front of the tavern. The tavern has two front doors. Facing the tavern the door on the left is the only door in use. Defendant parked his car slightly to the left of the entrance facing the building. A Plymouth automobile was parked to the right of defendant and to the right of the Plymouth there was a truck belonging to Harold Jackson. All of the vehicles faced the tavern.

Defendant and Seth had a drink in the tavern. Defendant purchased a six pack of beer and he and Seth left the tavern. As they got outside defendant saw Paul on the parking lot approaching the tavern. Defendant put the six pack on the hood of his car and advanced toward Paul. A fight ensued between defendant and Paul, Seth joined the fight to help his son. The combatants ended up on the ground near the left rear of defendant’s car, with the Wards on top of Paul. Harold Jackson and Dewey White stopped the fight and lifted defendant off of Paul and walked Paul to the rear of the Plymouth. A third man took Seth to the passenger side of the Ward car. Defendant went toward the front of his car and was heard to say, “I’ll straighten this out now.” He got the six pack from the hood of his car, went to the left door of the car, unlocked it, placed the six pack upon the seat, unlocked the passenger door, got the gun from the floor of the car and put shells in it. He then walked toward the rear of his car and cocked the gun. Harold Jackson called out, “He’s got a gun.” Paul Hampton was about fifteen feet to the rear of the Plymouth with his back to defendant, facing Dewey White. As Harold called out Paul turned toward defendant, threw his hands in the air and said, “Oh no” as defendant fired the gun. At the time defendant fired he was at the left side of his two door ear at the rear of the door. The gun was fired over the trunk of the car. The shot struck Paul on the left side causing a wound of four inches. He died as a result of the gun shot wound.

Defendant testified on his own behalf. He stated that as he was opening the passenger side of the door he saw Paul out the back window of the car. Paul was about 30 feet to the rear coming toward the car. Defendant got the gun, went to the back of the car hoping the sight of the gun would stop Paul. Defendant cocked the gun and told Paul to stop. “By that time seemed like the trigger went off.” He also testified that he did not know there was a shell in the chamber of the gun; that he intended to hit the black top to cause Paul to slow down or stop; that he did not intend to kill Paul Hampton.

We consider first defendant’s contention that the court erred in instructing the jury on murder in the first degree because there was no evidence of deliberation and premeditation and in so doing may have induced the jury to compromise by finding defendant guilty of murder in the second degree rather than a finding of not guilty or manslaughter.

The latter portion of defendant’s contention is not without its problems although the last controlling cases in Missouri clearly hold that “[a] defendant who has been convicted only of murder in the second degree may not successfully urge error in the giving of an instruction on murder in the first degree, even if the instruction is not sufficiently supported by evidence. . The error, if any, was not prejudicial.” State v. Strong, 339 S.W.2d 759, 765 (Mo.1960). State v. Adams, 497 S.W.2d 147, 154 (Mo.1973). Defendant was convicted of the lesser crime of murder in the second degree. There was no reversible error in giving the instruction on murder in the first degree.

Any doubt of the propriety of giving the questioned instruction dissipates when we consider the merits of the issue. For an act to have been done with deliberation it must be performed in a cool and deliberate state of mind. A finding of this element does not depend upon the time involved as much as it does upon an inference reasonably drawn from the evidence. State v. Nelson, 514 S.W.2d 581, 583[2] (Mo.1974). Premeditation is thought beforehand of any length of time, however short. State v. Smart, 485 S.W.2d 90, 93[2] (Mo.1972).

In our determination we view the evidence in the light most favorable to the State and ignore defendant’s evidence except where it is favorable to the State. State v. Nichelson, 546 S.W.2d 539, 542 (Mo.App.1977). The jury could readily have found antagonism on the part of defendant toward Paul Hampton because Paul had despoiled the garden. He placed a shot gun in his car and went to a tavern frequented by Paul. When defendant was leaving the tavern he saw Paul walking across the parking lot toward the tavern. Defendant placed his six pack of beer on the hood of his car and advanced toward Paul, the fight ensued when they met. From this evidence the jury could find that defendant was the aggressor no matter who struck the first blow. After the men were separated and Paul was turned away from defendant the defendant took the time to go to the front of his car and get his six pack. He was heard to say, “I’ll straighten this out now.” He unlocked the door to the driver side of the car, placed the six pack inside, reached through to unlatch the passenger’s door, then picked up the shot gun, loaded it, moved to the vicinity of the rear part of the car door, and when Paul turned in response to Harold Jackson’s exclamation that defendant had a gun, defendant shot and killed Paul Hampton. The facts bespeak deliberation and premeditation.

The giving of the instruction on murder in the first degree was not erroneous.

Defendant complains that there was insufficient evidence of intent on the part of defendant to justify the giving of an instruction on murder in the second degree. We cannot agree. Evidence on the part of the State of a killing by the use of a deadly weapon on a vital part of the body of the victim is sufficient to permit a finding of intent to kill. State v. Hammonds, 459 S.W.2d 365, 368 (Mo.1970).

Defendant complains the court erred in permitting the State to exact a commitment from the venire to assess punishment in the penitentiary if it were to find him guilty. He notes that the lesser offense of manslaughter, on which the court would be bound to instruct in a murder case, would not require such a sentence.

The following proceedings form the basis of defendant’s complaint:

“MR. MEYER: ... I want to ask you this question that if at the end of all the evidence and after your deliberation you were to determine as jurors that Mr. Ward was guilty, would any of you have any problem in assessing punishment in this case?
MR. KUETER: Your Honor, I’m going to object to the form of that question. That’s asking for a commitment of the jury.
THE COURT: Overruled.
MR. MEYER: You can answer the question. Does anyone feel — I am not trying to get any sort of commitment. I just want to know if you might have had any prior reason: Either — again, and I’m not trying to put you on the spot — either religiously, morally or any problem with assessing punishment, which, of course, would entail some, entail penitentiary? Does anyone feel they have any problem with that?
MR. KUETER: Again Your Honor, I am going to make the same objection. Counsel is asking for—
THE COURT: I’m sorry, Mr. Meyer, would you repeat that question?
MR. MEYER: Your Honor, I asked it a little differently and I will ask again and you can rule. I asked the jury if they would have any problem for whatever reasons, religious, morals, or what-not, have any problem with assessing punishment which could potentially result in time in the penitentiary.
MR. KUETER: That I say is asking for a commitment, Your Honor. I am going to ask for an objection to that question.
THE COURT: Overruled.
MR. MEYER: The question has been asked. Does anyone have any problems with that? I take it by your silence that no one does. All right.”

Counsel, on voir dire, may not extract from the venire a commitment as to their action in certain contingencies that may arise during the trial. State v. Kiner, 441 S.W.2d 720, 723 (Mo.1969). Litigants, however, have the right through the process of voir dire to discover bias or prejudice on the part of prospective jurors and they should be allowed a wide latitude in the search for open minded jurors. Littell v. Bi-State Transit Development Agency, 423 S.W.2d 34, 36 (Mo.App.1967).

We have set out the questioned portion of the voir dire in detail; a reading of the proceeding demonstrates that counsel was not seeking a commitment from the jurors that they would assess a term in the penitentiary no matter whether he was convicted of murder or manslaughter. He specifically disclaimed to the panel that he was seeking a commitment from them. The question as finally framed was whether the members of the panel had any scruples against the assessment of time in the penitentiary as punishment. As noted in State v. McCaine, 460 S.W.2d 618, 622 (Mo.1970) it is significant that as finally framed the question was whether the panel for any reason would have a problem in “assessing punishment which could potentially result in time in the penitentiary”, and not whether they would assess punishment in the penitentiary if they found defendant guilty. See also State v. Bolden, 494 S.W.2d 61, 66 (Mo.1973). In the last analysis control of the voir dire is within the discretion of the trial court. We find no abuse of discretion here. State v. Green, 511 S.W.2d 867, 873 (Mo.1974).

Defendant contends that the court erred in admitting a photograph of the body of deceased into evidence. The photograph was taken after the autopsy and shows the upper half of Paul Hampton’s body with Hampton placed on his back and displays the wound on the left side of his abdomen.

The admission of demonstrative evidence is primarily within the discretion of the trial court. It is generally held that such evidence is admissible if it “tends to connect the accused with the crime, or to prove the identity of the deceased, or show the nature of the wound, or throw any relevant light upon a material matter at issue.” State v. Moore, 303 S.W.2d 60, 65 (Mo. banc 1957).

In this case the defendant sought exoneration from the jury on the ground that he was acting in self defense; that Paul was advancing upon him as he fired the shot. The nature and location of the wound were relevant to the issue.

The State has the heavy burden of proving the defendant’s guilt beyond a reasonable doubt, and it should therefore not be unduly limited in the quantum of its proof. An objection that other witnesses testified to the facts revealed by the demonstrative evidence is not a valid objection. Such evidence can be used to corroborate the testimony of the witnesses. It can ' also be said that such evidence usually give a clearer concept than an oral description. State v. Moore, supra. The court did not abuse its discretion in admitting the photograph.

Defendant also contends that the court erroneously admitted into evidence the shirt that was worn by Paul when he was shot. The shirt has a hole in the left side where the shot entered. What we have said with respect to the photograph is applicable to this exhibit. We find no error in this issue.

Defendant urges that the court abused its discretion in not granting him a new trial on the basis of newly discovered evidence. The newly discovered evidence was the testimony of David Wilkins who was the proprietor of a business located about 90 feet from the tavern on the shopping center where the shooting took place. Mr. Wilkins would testify that he had been sitting on a railing in front of his business when he saw the fight between defendant, Seth and Paul; that he saw them separated, saw defendant get the beer from the hood of his car and put it in the car. He saw Paul walking toward defendant. Neither Harold Jackson nor Dewey White were on the parking lot at that time. He did not see the shooting because he went inside to answer the phone. About the time he picked up the telephone he heard the shot. It took him 12 seconds to move inside his building to the telephone. Mr. Wilkins had been contacted by defendant’s counsel before trial and was asked if he had seen the shooting and answered that he had not seen the shooting.

This evidence is merely cumulative to and corroborative of defendant’s testimony. It merely tends to impeach the testimony of Harold Jackson and other witnesses for the State and it is not likely to bring about a different result. It is not sufficient to require the granting of a new trial. State v. Terry, 472 S.W.2d 426, 431 (Mo. banc 1971). We find no abuse of the broad discretion granted the trial court in deciding whether to grant a new trial for newly discovered evidence. State v. Riley, 536 S.W.2d 501, 505 (Mo.App.1976).

Finding no reversible error the judgment of the trial court is affirmed.

REINHARD and STEPHAN, JJ., concur.

      . The terrestrial directions of objects necessary to the statement of fact do not appear in the transcript. It will be necessary to make reference to right or left of the tavern as one faces the tavern toward the tavern and away from the tavern.


author: REINHARD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Kenneth E. TILLEY, Defendant-Appellant.
    No. 39043.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 11, 1978.
    Application to Transfer Denied Oct. 10, 1978.

      William J. Shaw, Public Defender, Daniel L. McCleave, Asst. Public Defender, Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Carson W. Ellif, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Clayton, for plaintiff-respondent.
   REINHARD, Judge.

Defendant appeals from a conviction by a jury of attempted robbery in the first degree and armed criminal action. Under the Second Offender Act the court assessed his punishment at ten (10) years imprisonment on the charge of attempted robbery and fifteen (15) years imprisonment on the charge of armed criminal action. The sentences are to run consecutively. Defendant contends that the- trial court erred in (1) overruling defendant’s motion for judgment of acquittal as to the offense of armed criminal action; (2) submitting Instruction No. 8, the instruction on verdict possibilities; (3) failing to instruct the jury as to the offense of flourishing a dangerous and deadly weapon; and (4) sentencing defendant to consecutive terms for the charges of attempted robbery in the first degree and armed criminal action. Upon review of these allegations, we affirm.

Due to the issues raised, a brief recitation of the facts is necessary. On the early morning of September 17, 1976,-the night auditor and a security guard were on duty at the Day’s Inn motel in St. Louis County. Defendant entered the empty lobby, walked up to the auditor, pulled a gun from his left side and muttered unintelligibly. Defendant then repeated, “You have got three seconds”, and the auditor opened the cash register. The security guard appeared and defendant fled without the money, stating, “. . . I don’t want anything.” The guard proceeded to pursue defendant and his companion, who had been waiting outside the motel. The guard caught defendant, who no longer had a gun in his possession. Both the auditor and the guard identified defendant as the person who attempted the robbery.

Armed criminal action as defined in § 559.225, RSMo 1976, includes the commission of any felony under the laws of Missouri . . by, with, or through the use, assistance, or aid of a dangerous or deadly weapon . . . .” Defendant contends that the evidence produced by the State was insufficient to support a conviction of armed criminal action in that it was not shown beyond a reasonable doubt that defendant in attempting the robbery used a hand gun or and any weapon that was dangerous and capable of causing injury to another.

In reviewing the sufficiency of the evidence, we must view the evidence in the light most favorable to the State and give the State the benefit of all reasonable inferences. State v. Wiley, 522 S.W.2d 281, 292 (Mo. banc 1975). Here the night auditor, who was familiar with weapons, testified that defendant pointed a revolver at him from a distance of three (3) feet. He said, “It was a small caliber, like a .22 or starter pistol. It was a revolver.” On cross-examination, in response to the question, “Could it also have been a replica?” he answered, “Possibly.” However, on re-direct he said, “It was real and loaded.”

Defendant argues that this sequence of testimony by the single witness presented by the State on the issue of defendant’s use of a gun is contradictory and that the State thereby failed to make a submissible ease of armed criminal action. However, in that the apparent conflict of the auditor’s testimony may be reasonably explained when reviewed in its complete context, this was a matter for determination by the jury. State v. Dodson, 490 S.W.2d 92, 95 (Mo.1973). If believed by the jury, the positive testimony of the night auditor as to the use of a gun by defendant clearly authorized a finding that the robbery was attempted by the use of a gun. Proof of the use of a gun in the commission of a felony is sufficient evidence upon which to base a conviction of armed criminal action because, “[a] gun in and of itself is considered a dangerous and deadly weapon whether it is, in fact, operative as a firearm or not.” State v. Long, 532 S.W.2d 814, 820 (Mo.App.1975). See also State v. Dorsey, 491 S.W.2d 301, 304 (Mo.1973); State v. Payne, 452 S.W.2d 805, 808 (Mo.1970); State v. Kowertz, 324 Mo. 748, 25 S.W.2d 113, 115 (1930); State v. Baty, 511 S.W.2d 139, 140 (Mo.App.1974). To require as a condition precedent to a conviction for armed criminal action that the State prove that a gun was loaded and operative would virtually render the statute unenforceable; Defendant’s first point is without merit.

Defendant next contends that Instruction No. 8, the instruction on verdict possibilities, was unduly confusing in that it suggested to the jury that if they found defendant guilty of attempted robbery first degree, then they must find him guilty of armed criminal action as well. Defendant also asserts that there was no evidence presented at the trial which was limited specifically to either of the offenses and that language in the instruction suggesting otherwise was misleading to the jury. Instruction No. 8 reads as follows:

The defendant is charged with two separate offenses: Attempted Robbery and, also, Armed Criminal Action in connection with the attempted robbery. Each of these two charges and the evidence and law applicable to them should be considered separately. Any evidence which was or has been limited to one of the offenses charged or one purpose should not be considered by you as to the other offense charged or for any other purpose.
You may find the defendant guilty of both Attempted Robbery and Armed Criminal Action, or guilty of Attempted Robbery but not guilty of armed criminal action, or not guilty of attempted robbery and armed criminal action.

Initially, we note that we find nothing in the instruction which suggests that if defendant is found guilty of attempted robbery first degree, the jury must find him guilty of armed criminal action. When the offense of armed criminal action is charged, then multiple counts are necessarily involved; one cannot be guilty of armed criminal action without first being found to have committed a felony as defined in § 559.225, RSMo 1976. Where multiple counts are involved, one of the group of instructions numbered from MAI-CR 2.70 to 2.77 inclusive should be read to the jury. MAI-CR 2.70, Notes on Use. At the time of trial there was no applicable MAI instruction as to the verdict possibilities for the crime of armed criminal action. Rule 20.02(d) provides for such a situation: “Where an MAI-CR form must be modified, or where [there] is no applicable MAI-CR form, the modified form or the form not in MAI-CR, if given, shall be simple, brief, impartial and free from argument. It shall not submit detailed eviden-tiary facts. All instructions, where possible, shall follow the format of MAI-CR instructions, including the skeleton forms therein.” Instruction No. 8 was appropriately patterned after MAI-CR approved form 2.74, and complies fully with Rule 20.02(d).

Furthermore, the instruction cannot be considered as misleading. The information charged defendant with attempted robbery first degree and armed criminal action in two separate counts, the jury was given a separate instruction as to each count, and Instruction No. 8, when read with the other instructions, properly instructed the jury as to the necessary elements of each offense. See Simms v. State, 568 S.W.2d 801 (Mo.App. St.L., 1978). The language in Instruction No. 8 to which defendant objects clearly informed the jury that the two charges were separable to the intent outlined. While the portions of the instruction discussing the limiting of evidence may have been surplusage in this case, the language certainly was not confusing. In that Instruction No. 8 was patterned after MAI-CR 2.74, was in full compliance with Rule 20.02(d) and was not misleading to the jury, we reject this point. State v. Henderson, 530 S.W.2d 382, 387 (Mo.App.1975).

Defendant’s next ground for reversal cites the failure of the trial court to give an instruction on flourishing a dangerous and deadly weapon. Defendant failed to raise this issue in his motion for a new trial. Therefore, the point is not properly preserved for review and we consider only whether the failure to give this instruction resulted in plain error pursuant to Rule 27.20(c).

Initially we note that § 546.-070(4), RSMo 1969, requires the court to instruct the jury on “all questions of law arising in the ease which are necessary for their information in giving their verdict; . . . .” It is the duty of the trial court in criminal prosecutions to properly instruct on any lesser offense which might be included within the offense charged. State v. Fleming, 528 S.W.2d 513, 515 (Mo.App.1975). Generally, “instructional error is not ‘plain error’ unless the trial court has so misdirected or failed to instruct the jury on the law of the case as to cause manifest injustice . . . State v. Harley, 543 S.W.2d 288, 292 (Mo.App.1976), citing State v. Bridges, 491 S.W.2d 543, 547 (Mo.1973). The facts and circumstances of each case must be reviewed on a case to case basis to determine plain error. State v. Sanders, 541 S.W.2d 530, 533 (Mo. banc 1976); State v. Johnson, 559 S.W.2d 756, 758 (Mo.App.1977).

Defendant argues that under the test first enumerated in State v. Amsden, 299 S.W.2d 498, 504 (Mo.1957), flourishing is a lesser included offense of the offenses of attempted robbery first degree and armed criminal action. Specifically he asserts, “Comparing Sections 560.120, RSMo, (Robbery First Degree), 559.225, RSMo (Armed Criminal Action), and 556.150, RSMo, (Attempt) with the flourishing statute one finds that all the legal elements which make up the flourishing violation are encompassed in these two [sic] statutes.” Defendant concedes in his brief, however, that flourishing is not a lesser included offense of either of these two charges individually, and he cites no authority to support his proposition.

Section 556.230, RSMo 1969 authorizes conviction on a lesser included offense of the offense charged. In view of the singular language employed by the Legislature in § 556.230, RSMo 1969, the cases discussing lesser included offenses, and the recent Missouri Supreme Court decision holding that armed criminal action and first degree robbery are two (2) distinct offenses, State v. Treadway, 558 S.W.2d 646, 652 (Mo. banc 1977), we conclude that failure to instruct on the offense of flourishing a dangerous and deadly weapon was not error, and we decline to invoke the plain error rule.

Defendant finally argues that the trial court, in assessing consecutive sentences, failed to exercise its discretion and acted as though it had no alternative. It is within the discretion of the trial court to determine whether defendant’s sentences should run concurrently or consecutively. State v. Treadway, supra at 353. However, there is nothing in the record that indicates that the court felt constrained or prohibited by statute from exercising its discretion. To the contrary, the court specified that in imposing sentence it was taking into consideration the fact that the robbery was attempted with a gun and the fact that defendant had prior convictions. In the absence of any showing that the court failed to exercise its discretion there exists no error. Cole v. State, 553 S.W.2d 877, 882 (Mo.App.1977); Lawson v. State, 542 S.W.2d 796, 797 (Mo.App.1976); Spencer v. State, 534 S.W.2d 598, 599 (Mo.App.1976). See State v. Baker, 524 S.W.2d 122, 129 (Mo. banc 1975).

Judgment affirmed.

STEWART, P. J., and STEPHAN, J., concur.

      . The Notes on Use applicable to MAI-CR 2.74 advise that this instruction should be used only in cases involving the connected offenses of burglary and stealing. In the present case, MAI-CR 2.74 was not given to the jury. Rather, Instruction No. 8 was patterned after MAI-CR 2.74.


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Sidney H. HAMILTON, Defendant-Appellant.
    No. 39281.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 11, 1978.

      E. D. Lofftus, Fenton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Appellant Sidney H. Hamilton appeals from a judgment of conviction entered by the circuit court of Franklin County upon a jury verdict finding him guilty of stealing over $50.00, a felony, §§ 560.156, 560.161, RSMo 1969. Appellant was sentenced to a term of five (5) years imprisonment. For reversal appellant argues that the trial court erred in (1) denying his motion for a protective order prior to voir dire examination and overruling his objections to the introduction of testimony relating to an attempted arrest at the Diamonds Restaurant and (2) overruling his objections to the introduction of testimony related to his arrest record. For the reasons discussed below, we affirm the judgment.

At approximately 12:15 a. m., on February 14, 1976, appellant was arrested and charged with the theft of a CB radio, a speaker and a tape deck. These items belonged to a Duane Schneider but were in appellant’s possession at the time of the arrest. At trial Mr. Schneider testified that he discovered this equipment was missing from his automobile at 8:00 a. m., on February 14, 1976.

Appellant testified at the trial and denied stealing the equipment. Appellant testified that he purchased the items from Butch Rose for $50.00. Mr. Rose testified and confirmed the sale of the equipment. On direct examination appellant also testified that he had been “going straight” since the time of his prior arrests in 1969. The prosecuting attorney cross-examined appellant about arrests subsequent to 1971; this testimony was admitted over objection.

At trial appellant’s counsel made a motion for a protective order to restrain the prosecution and police officers from testifying about an attempted arrest at the Diamonds Restaurant earlier in the evening of February 14. This motion was overruled. Over objection Deputy Sheriff Robert Mitt-ler testified that he was on duty on February 14, 1976, and was parked behind the Diamonds Restaurant at about 12:15 a. m. Deputy Sheriff Mittler saw an automobile enter the parking lot and then stop. He approached to within twenty feet of the automobile when it left the parking lot at a high rate of speed. He fired a shot at the vehicle. Deputy Sheriff Mittler broadcast a description of the car and its direction. Appellant’s car was subsequently stopped by another police officer.

First, appellant argues that the trial court erred in denying his motion for a protective order prior to voir dire examination and overruling his objections to the introduction of testimony related to an attempted arrest at the Diamonds Restaurant. Appellant argues that the prosecution was thus allowed to introduce highly inflammatory and prejudicial evidence which was not relevant to the present ease. Appellant argues that this evidence of an attempted arrest deprived him of his right to a fair trial. We disagree. This evidence, specifically that of Deputy Sheriff Mittler, was admissible as evidence showing flight and therefore indicative of guilt.

Unexplained flight is a relevant circumstance in connection with guilt or innocence. Flight may be either from the scene of the crime or elsewhere if it is in order to avoid arrest or prosecution. Remoteness of the flight — in space and time — from the scene and time of the alleged crime goes only to the weight of the evidence and not to its admissibility. . (State v. Rutledge, 524 S.W.2d 449, 458 (Mo.1975))

State v. Coleman, 441 S.W.2d 46, 53 (Mo.1969); See also State v. Woodard, 499 S.W.2d 553, 556 (Mo.1973).

Appellant also contends that flight from the Diamonds Restaurant parking lot was not an indication of guilt of stealing equipment from a different location. Appellant further argues that the admission of the evidence of the attempted arrest prejudiced the present case because he was not being tried for crimes committed at the Diamonds Restaurant. This argument is without merit. As noted above, “. [fjlight may be either from the scene of the crime or elsewhere if it is in order to avoid arrest or prosecution. . . State v. Rutledge, supra, at 458. For example, in State v. Collett, 542 S.W.2d 783 (Mo. banc 1976), the defendant argued that the trial court erred in admitting evidence of an escape while the defendant had multiple charges pending against him. The court, however, disagreed and held that evidence of flight is admissible at a trial of any of the charges and the weight to be given the evidence is a matter for the jury. Id. at 787. Furthermore, as noted in State v. Nienaber, 347 Mo. 615, 148 S.W.2d 1024, 1027 (1941), “. . . [o]ne may flee to avoid arrest for more than one offense. .” Therefore, we reject appellant’s first contention.

Appellant next argues that the trial court erred in overruling his objections related to cross-examination of appellant about his prior arrest record. The general rule is that a witness’s credibility cannot be attacked by evidence of mere arrests which do not result in convictions. E. g., State v. Elbert, 471 S.W.2d 170 (Mo.1971); State v. Macon, 547 S.W.2d 507, 515 (Mo.App.1977); State v. Sanders, 360 S.W.2d 722, 725 (Mo.1962); State v. Rumfelt, 258 S.W.2d 619, 619-620 (Mo.1953). Once an accused has, however, on direct examination, voluntarily opened up the subject of his good character, he may be impeached with prior arrests to test: (1) whether he truthfully is a person of good character and (2) his trustworthiness and credibility as a witness in his own behalf. State v. Macon, supra, at 514; see also State v. Todd, 468 S.W.2d 632 (Mo.1971); State v. Withers, 347 S.W.2d 146 (Mo.1961).

But ever more in point, in the present case, after appellant testified that he had been convicted in 1969 for three separate offenses, imprisoned therefor and released in June 1971, his attorney asked him whether he had tried to go straight since that time. In response, appellant asserted that he had been “going straight” with the qualification that he had been picked up for traffic tickets. In this posture, the prosecutor on cross-examination, developed and obtained admission from appellant that he had been arrested — in August 1972 for armed robbery, in September 1972 for carrying a concealed weapon, in May 1974 for malicious destruction of property, and in August 1974 for armed robbery and assault with intent to kill. In fact, appellant subsequently admitted that he pled guilty to the May 1974 charge.

In our opinion, we hold that the cross-examination of appellant was, under the circumstances developed, a permissible attempt to impeach his obvious effort to present to the jury a record of prior good conduct after his release from the penitentiary in June, 1971. Consequently, the trial court did not err in overruling appellant’s objections to the prosecutor’s cross-examination about appellant’s prior arrests. State v. Elbert, supra, at 172.

Judgment affirmed.

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

      . Police discovered and arrested appellant in possession of the victim’s goods prior to time victim missed his goods at 8:00 A.M., February 14, 1976.

      . In State v. Ball, 339 S.W.2d 783 (Mo. banc 1960), our Supreme Court held that unexplained flight, even thirty days after the corn-mission of a crime, is a relevant circumstance to be considered.