author: GUNN, Judge.

text:
    The CURATORS OF the UNIVERSITY OF MISSOURI ex rel. SHELL-CON, INC., a corporation, Plaintiffs-Respondents, v. NEBRASKA PRESTRESSED CONCRETE COMPANY, a corporation, et al., Defendants-Appellants.
    No. 35185.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 5, 1975.

      Anderson, Gilbert, Wolfort, Allen & Bier-man, Stuart M. Haw, Jr., St. Louis, for defendants-appellants.
    Deeba, DeStefano, Sauter & Herd, James B. Herd, Madigan, Hadiean & Maloney, St. Louis, Paskel, Edwards, Olian & Hadiean, J. Martin Hadiean, Clayton, for plaintiffs-respondents.
   GUNN, Judge.

We consider here an action in quantum meruit brought by the relator-respondent Shell-Con, Inc. (Shell-Con) for work performed in constructing the Warren E. Hearnes Multi-Purpose Fieldhouse at the University of Missouri-Columbia. Suit was brought on two alternative counts, one based on the contract Shell-Con entered into with defendant-appellant Nebraska Prestressed Concrete Co. (Nebraska Pre-stressed), and the other in quantum meruit. Shell-Con elected to proceed at trial on only the quantum meruit theory, seeking damages of $100,000 plus interest. Joined as defendants were Alfred Lindgren, Inc., the general contractor of the entire project, in its capacity as principal on a performance bond, and Pennsylvania Insurance Co. in its capacity as surety. The jury returned a verdict for Shell-Con for $87,000 plus costs, which was remitted to $67,000 by the trial court. Nebraska Prestressed has appealed from the judgment against it.

Nebraska Prestressed raises several points on appeal. It claims that the verdict, even remitted by $20,000, was grossly excessive and unsupported by the evidence. It also asserts that the trial court erred in giving several instructions to the jury and in failing to give others offered by the defendant.

The ultimate act giving rise to this controversy occurred when the president of Shell-Con ordered his crew to leave the construction site after having completed approximately 80 to 85 percent of the work contracted. Shell-Con then brought suit alleging that Nebraska Prestressed had breached its contract by preventing Shell-Con from completing performance. Nebraska Prestressed answered by denying that it breached the contract and asserted as an affirmative defense that Shell-Con, by voluntarily abandoning the contract, had committed the breach.

The basic facts involved in this controversy are not in conflict. In January 1969, defendant Alfred Lindgren, Inc. entered into a contract with the Curators of the University of Missouri for the construction of the Warren E. Hearnes Multi-Purpose Fieldhouse to be situated on the University’s Columbia campus. Subsequently, Alfred Lindgren, Inc. contracted with defendant Nebraska Prestressed for the manufacture and installation of precast concrete exterior wall units and seat units. On February 26, 1969, Nebraska Prestressed subcontracted the installation work to the plaintiff Shell-Con. It is the contract between Shell-Con and Nebraska Prestressed on which this litigation centers. Under the terms of the contract, Nebraska Prestressed agreed to manufacture the precast concrete units and deliver them to the job site. Shell-Con agreed to unload the units and set them into place. The contract price for the completed work was $167,000.

During negotiations with Nebraska Pre-stressed, Shell-Con insisted that conditions at the work site be in a proper state of readiness so that Shell-Con would be able to proceed with its work in a continuous and sequential fashion. Shell-Con had projected that its work would be completed within four to six months; that if Shell-Con were unable to proceed in a sequential order around the structure, it would be forced to move its equipment, including a large crane, from one work area to a noncontiguous area, which would be a time consuming and costly procedure. Several provisions were incorporated into the contract to avoid these problems, including the following requirements: 1) that suitable access to work areas for equipment and material trucks be provided; 2) that all materials furnished by others be delivered by truck to the point of erection; and 3) that delivery of materials be scheduled and coordinated to ensure and maintain continuous and sequential operation.

The saga of Shell-Con’s performance is replete with false starts and continual delays without fault on the part of Shell-Con. Although Shell-Con was scheduled to begin the erection work in August, 1969, it was not ordered onto the job until September 15, 1969. Several days prior to September 15, Shell-Con notified Nebraska Prestressed that an inspection revealed that the structure would not be ready to receive the wall panels until October. Despite the warning, the general contractor told Nebraska Pre-stressed to order Shell-Con onto the job. The structure was not ready and Shell-Con was not able to commence its work. It was forced at substantial expense to dismantle and remove the large crane it had readied for the work. It was not until October, 1969 that Shell-Con actually began to install the wall panels. The crew was forced to stop working on December 19, 1969 because the structure again was not ready to receive the precast concrete panels. Shell-Con resumed work in January and remained at the job site until July 24,1970 at which time Mr. Shell, president of Shell-Con, ordered his men to leave the construction site. Throughout the various intervals that Shell-Con worked, the crew experienced continual problems with the steel structure being out of plumb. There were also problems with the poured-in-place concrete not being properly laid. These difficulties created continual delays and forced Shell-Con to work out of sequence. In addition to the problems with the structure and the poured-in-place concrete, there were access problems relating to the installation of the seats. According to the contract, the seats were to be installed from inside the fieldhouse. Shell-Con was unable to move its crane inside the structure because the interior was cluttered with scaffolding being used by steelworkers. There was testimony that it would take approximately 20 working days to sufficiently clear away the scaffolding to allow access for Shell-Con’s crane. The breaking point, causing Shell-Con to cease work completely on July 24, was an access problem caused by an accumulation of dirt that interfered with the placement of Shell-Con’s crane. Mr. Shell was also disturbed that he had not been paid for the last two months’ work and for extras that had been billed to Nebraska Prestressed for work performed but not covered by the contract. A further reason given for leaving the job was Shell-Con’s unwillingness to bear the burdens of continual delays. Shell-Con also believed that it could no longer rely on Nebraska Prestressed’s assurances that the work would be able to continue in a sequential fashion. It is important to note that after Shell-Con stopped working, Nebraska Pre-stressed undertook the construction project, and the erection of the wall panels and seats was finally completed in late December, 1970, over a year after the work was begun.

The first point raised on appeal by Nebraska Prestressed is a claim that the jury verdict of $87,000, even remitted by the trial court to $67,000, was excessive and not supported by the evidence. Quantum meruit is defined as “as much as he has deserved.” Rolla, Lumber Co. v. Evans, 482 S.W.2d 519, 521 (Mo.App.1972); Rodgers v. Levy, 199 S.W.2d 79 (Mo.App.1947). The measure of recovery in this quantum meruit action depends upon which party has breached the contract. If the contractor is prevented from completing the contract because of the owner’s breach, the contractor is entitled to recover the reasonable value of the work and labor furnished. Spitcaufsky v. Guignon, 321 S.W.2d 481 (Mo.1959); Fuhler v. Gohman & Levine Construction Co., 142 S.W.2d 482 (Mo.1940); Bradley Heating Co. v. Thomas M. Sayman Realty & Investment Co., 201 S.W. 864 (Mo.1918); Woodley v. Esslinger, 458 S.W.2d 869 (Mo. App.1970); Isaac v. Koenig, 447 S.W.2d 818 (Mo.App.1969). When the contractor voluntarily ceases work or, in the construction trade vernacular, “walks off the job,” when the owner has not breached, a different measure of damages is used as set forth in Bradley Heating Co. v. Thomas M. Sayman Realty & Investment Co., supra at 865: “In such an action, by a defaulting contractor, he was permitted to recover; but his recovery could be reduced, under proper pleadings and proof, by the amount of damages his breach of the contract might have occasioned to the owner. Nor would he, in this kind of case, be permitted a recovery in excess of the contract price.” Shell-Con proceeded on the theory that Nebraska Pre-stressed breached the contract by preventing Shell-Con from fulfilling its contractual obligations. Thus, Shell-Con claims it is entitled to the reasonable value of the materials and labor furnished Nebraska Pre-stressed. Nebraska Prestressed, on the other hand, answered by denying that it breached and asserted that Shell-Con, by walking off the job, breached the contract. Thus, Nebraska Prestressed claims that any damages the plaintiff may be entitled to must be reduced by the damages it sustained due to Shell-Con’s breach. Both theories were submitted to the jury, and we believe that there was sufficient evidence to sustain the jury’s finding that Nebraska Prestressed breached the contract. Although Nebraska Prestressed is not responsible under the contract for delays caused by physical problems with the steel structure and poured-in-place concrete, Nebraska Prestressed did have an obligation under the contract to provide for “suitable access to areas of work for equipment and material trucks.” There were numerous instances from October 1969 through July 1970 when Shell-Con’s ability to proceed with its work was impeded due to its inability to gain access to the work areas. Shell-Con’s inability to move inside the fieldhouse in order to install the precast seating units and its inability to move its crane along the exteri- or of the structure due to accumulations of dirt are examples of the access difficulties experienced. Some delays were caused by Nebraska Prestressed’s failure to comply with a clause in the contract which required that “[mjaterial deliveries [were] to be scheduled and coordinated so as to maintain continuous and sequential operation.” Although Shell-Con concedes that this was not an insuperable problem, there was testimony that some deliveries by Nebraska Pre-stressed were not made on time. There is also a factual dispute concerning payments. Shell-Con had not received payment for work done in May and June. It also had not been paid for some of the extras billed to the defendant. Nebraska Prestressed contends that its failure to pay was not a breach, because the contract only required payment to Shell-Con after Nebraska Pre-stressed received payment from the general contractor. The evidence is in conflict as to whether or not Nebraska Prestressed had received money for these bills from the general contractor, and the jury was at liberty to resolve this conflict in Shell-Con’s favor.

Since there was sufficient evidence that would support a finding that Nebraska Prestressed breached the contract, we next consider the valuation of Shell-Con’s damages. The jury could find that Nebraska Prestressed breached the contract; hence, Shell-Con would be entitled to recover from Nebraska Prestressed the reasonable value of the work and labor furnished. Spitcaufsky v. Guignon, supra; Fuhler v. Gohman & Levine Construction Co., supra; Bradley Heating Co. v. Thomas M. Sayman Realty & Investment Co., supra; Woodley v. Esslinger, supra; Isaac v. Koe-nig, supra. To prove the reasonable value of the material and labor furnished, Shell-Con introduced into evidence the invoices it had billed to Nebraska Prestressed for work done pursuant to the contract through July 1970. These invoices totalled $112,550.75. At the outset of the project, Shell-Con prepared, with Nebraska Prestressed’s approval, an itemized cost sheet assigning a contract price to each individual aspect of the job, e. g. installation of large wall panels, small wall panels, spandrels, and other items of construction. Near the end of each month, Shell-Con would send to Nebraska an invoice that would estimate the amount of work that would be completed through the end of the month. These invoices were calibrated by listing the different types of units projected to be erected during the month multiplied by the contract price set out in the itemized cost sheet for that particular type of unit. Shell-Con conceded that these invoices were estimates at the time they were written and did not reflect the actual work completed by the end of that particular month. But if an invoice proved inaccurate, the next month's invoice would be readjusted to accurately reflect the work done in the preceding month. In addition to these invoices, Shell-Con introduced invoices totalling $25,114.72 for extra work it did over and above the contract specifications. Relying on all of its invoices, Shell-Con claims that the actual value of its work totalled $187,665.47. Shell-Con offered no other evidence as to the value of the work done. It admits having received payment from Nebraska Prestressed for $75,273.08, $63,926.77 of which covered work done under the contract, and the remaining $11,846.26 was payment for some of the extra work. Assuming that Shell-Con’s invoices accurately represent the actual work done, Shell-Con would be entitled to recover $62,892.44^$137j-665.47 minus $75,273.03). Thus, the judgment as remitted is almost $5,000 over the actual value of the work and labor furnished Nebraska Prestressed and as yet not paid for. However, Nebraska Prestressed correctly contends that Shell-Con’s figures do not represent the actual work it performed. This is caused by Shell-Con’s invoice for July 1970, the last month it was on the job. The invoice is dated July 22, and on its face is a bill for “work completed through July 31, 1970” for the sum of $24,-982.00. Witnesses for Shell-Con testified that this figure estimated the value of work it would complete through July 31, 1970. From undisputed testimony, Shell-Con left the construction site on July 24 and did not work at all during the last work-week in July. Thus, the July invoice covers work projected to be done on five working days that Shell-Con did not in fact work. This invoice cannot be used as proof of actual work performed during the month of July and by relying on it in its total invoice figure, Shell-Con has failed to show the actual value of the material, work and labor it furnished Nebraska Prestressed. We have noted that the jury verdict as remitted, is approximately $5,000 in excess of Shell-Con’s own ¡figures as to its damages. But a further remittitur will not cure the flaw in Shell-Con’s proof of damages. The July invoice of $24,982, which is a substantial portion of the total judgment, is unreliable since it is based on an entire month’s billing, whereas Shell-Con worked only a portion of July. Further, there is absolutely no evidence as to how much work Shell-Con did in July; we cannot speculate as to what portion of the $24,982 (if any at all) Shell-Con would be entitled to as damages. The case must therefore be remanded for Shell-Con to present accurate and reasonable evidence of the value of the work and labor furnished Nebraska Prestressed during the month of July.

Nebraska Prestressed offered its own evidence as to the actual value of work done by Shell-Con up to July 24, 1970. Nebraska Prestressed’s job coordinator, Mr. Nordquist, went to the job site shortly after July 24 and took photographs of the work that had been completed by Shell-Con. He compared these photographs with shop drawings of the project and then prepared a list of all the various units Shell-Con had installed. He then multiplied the number of units set in place by the contract price of each unit as established in the itemized cost sheet prepared by Shell-Con. He found the contract value of Shell-Con’s work to be $95,807.25. Although Nebraska Prestressed had contested the validity of some of the extra invoices, it is willing to concede that the jury found against it on this point and thereby adds $25,114.72 for extras, giving a total of $121,021.97 as the actual value of work done by Shell-Con. Subtracting the $75,278.03 that Nebraska Prestressed had already paid Shell-Con, Nebraska arrives at $45,748.94 as the maximum amount it should owe Shell-Con. Claiming that Shell-Con breached the contract, Nebraska Pre-stressed contends that it is entitled to subtract from the maximum figure of $45,-748.94 any damages it sustained. As the measure of its damages, Nebraska Pre-stressed looked to the difference between the reasonable cost to complete the work Shell-Con failed to perform and the proportion of the contract price attributed to this work. Using this standard Nebraska Pre-stressed arrived at $24,580.56 as its contractual damages. According to Nebraska Pre-stressed’s theory of the case, the maximum value of Shell-Con’s work, $45,748.94, should be reduced by $24,580.56 to $21,-168.38. The jury, of course, did not accept Nebraska Prestressed’s theory of the case that Shell-Con had breached the contract.

Nebraska Prestressed also contends that Shell-Con failed to prove that the value assigned to the work and labor furnished was reasonable. In a quantum meruit case, the plaintiff has the burden of showing that the value of the work is reasonable. Rolla Lumber Co. v. Evans, supra; Rodgers v. Levy, supra. Shell-Con has met this burden by relying on the contract price for the value of the work and labor he furnished. It is well established that in an action grounded in quantum meruit, the contract price is prima facie evidence of “reasonableness.” Smith v. Ray M. Dilschneider, Inc., 283 S.W.2d 631 (Mo.1955); Oliver L. Taetz, Inc. v. Groff, 363 Mo. 825, 253 S.W.2d 824 (1953); K-V Builders, Inc. v. Thomas, 353 S.W.2d 130 (Mo.App.1962).

However, with regard to Nebraska Pre-stressed’s first point on appeal — that the jury verdict in favor of Shell-Con for $87,-000 remitted to $67,000 was not supported by the evidence — it is manifest, as we have previously observed, that the judgment is not supported by Shell-Con’s proof. Shell-Con’s July invoice is too indefinite to serve as a proper gauge for damages.

Having determined that the case be remanded, we now consider other contentions of error raised by Nebraska Prestressed. The second point raised on appeal by Nebraska Prestressed concerns Instruction No. 2 which reads as follows:

“In these instructions you are told that your verdict depends on whether or not you believe certain propositions submitted to you. In determining whether or not you believe any proposition, you must consider only the evidence and the reasonable inferences derived from the evidence. ' The burden is upon Plaintiff to cause you to believe the propositions necessary to support its claim against Defendants. The burden is upon Defendants to cause you to believe the propositions necessary to support their affirmative defense as submitted in Instruction 4. If the evidence in the ease does not cause you to believe a particular proposition submitted or if you are unable to form a belief as to any such proposition, then you cannot return a verdict requiring belief of that proposition.” (emphasis added). (MAI No. 3.01 Modified).

Nebraska Prestressed contends that Shell-Con, by admitting it left the job, has breached the contract; that in reality Shell-Con is pleading in confession and avoidance and thus has the burden of showing that it is entitled to avoid the consequences of its breach. Nebraska Prestressed argues further that Instruction No. 2 erroneously places the burden on Nebraska Prestressed that Shell-Con has breached the contract. Nebraska Prestressed concludes that since its affirmative defense (that Shell-Con breached the contract) has been conceded, placing the burden of proof upon it as was done in Instruction No. 2 was incorrect and highly confusing to the jury.

Nebraska Prestressed’s argument is untenable and misconceived. At no time does Shell-Con concede that it breached the contract. In its pleadings and throughout the trial, Shell-Con proceeded on the theory that Nebraska breached the contract. Merely walking off a job is not a breach of contract as a matter of law. When the owner, or someone standing in his stead, prevents a contractor from completing performance, the contractor’s failure to complete his work is excused, and he is not regarded as having breached the contract. The contractor, under those circumstances, has the right to sue on the contract or elect to sue in quantum meruit for reasonable value of labor and work furnished. Isaac v. Koenig, supra; Rodgers v. Levy, supra. Nebraska Prestressed relies on the holding in Bradley Heating Go, v. Thomas M. Sayman Realty & Investment Go., supra, that the defendant was entitled to an instruction placing the burden on Shell-Con to show by the greater weight of the evidence that Nebraska Prestressed prevented completion. Instruction No. 2 does exactly what Nebraska Prestressed asks. The instruction’s purpose is twofold: 1) Shell-Con’s theory was that Nebraska Prestressed breached the contract by preventing Shell-Con from fully performing, and under Instruction No. 2 the burden of proving this breach was on Shell-Con. 2) Nebraska Pre-stressed asserted as an affirmative defense that Shell-Con breached the contract by failing to complete its work. Since Shell-Con did not concede breaching the contract by abandonment, the instruction properly places the burden of proving Shell-Con’s breach upon Nebraska Prestressed. The instruction correctly follows MAI No. 3.01 Notes on Use which require the court to include in the burden of proof instruction a sentence placing the burden on Nebraska Prestressed of proving its affirmative defense.

The next point raised on appeal by Nebraska Prestressed is a challenge to Instruction No. 3 which Nebraska Prestressed claims was inapplicable to the case and confusing and inconsistent with another instruction that was submitted. Instruction No. 3 is Shell-Con’s verdict directing instruction and follows MAI No. 26.05, modifying it only to the extent that it was made to apply to the facts of this case:

“Your verdict must be for Plaintiff if you believe:
First, Plaintiff furnished labor, equipment and materials incidental to the erection of precast concrete to Defendants, and
Second, Defendants accepted such labor, equipment and materials unless you believe that Plaintiff is not entitled to recover by reason of Instruction No. 4.”

Nebraska Prestressed contends that this instruction places in issue the question of liability which it claims has been conceded. In addition, Nebraska Prestressed argues that Instruction No. 3 is in conflict with Instruction No. 5 which requires that the jury award at least $15,086.02 to Shell-Con. Since the jury must return a verdict in favor of Shell-Con under Instruction No. 5, Nebraska Prestressed argues that Instruction No. 3 is inapplicable because it injects the question of liability when another instruction has removed the liability issue from the jury’s consideration. Nebraska Prestressed argues that these two instructions confused and misled the jury as evidenced by the excessive verdict rendered by the jury.

Shell-Con responds to Nebraska Prestressed’s argument by asserting three reasons why the giving of Instruction No. 3 was not error. First, Shell-Con asserts that liability was not conceded by Nebraska Pre-stressed. In paragraph 15 of its answer to Shell-Con’s petition, Nebraska Prestressed denied liability:

“[defendant specifically denies that $100,000.00 or any other sum whatsoever is owing from defendant Nebraska Pre-stressed Concrete Co. to relator, and specifically denies that defendant Nebraska Prestressed Concrete Co., has breached its contract with relator and specifically denies that relator has suffered any damage by reason of any act of defendant.”

Second, Shell-Con points to the fact that on two separate occasions, after Nebraska Pre-stressed’s evidence, and during closing arguments, it moved for a directed verdict solely on the question of liability, and both motions were denied. Both motions were submitted after Nebraska Prestressed had conceded that it was liable to some extent to the plaintiff. Although Nebraska Pre-stressed had conceded liability during the trial, Shell-Con claims it was entitled to Instruction No. 3, since the trial court refused to direct a verdict on the question of liability. Third, Shell-Con correctly asserts that even if Instruction No. 3 is prejudicial, its prejudice is against Shell-Con. If the giving of Instruction No. 3 was error, the error would favor Nebraska Prestressed since Shell-Con was given a greater burden then required by law. It is well-established that “one may not complain of an instruction placing too great a burden on his adversary.” Tinsley v. Massman Construction Co., 270 S.W.2d 835 (Mo.1954); Hough v. Jay-Dee Realty & Investment, Inc., 401 S.W.2d 545 (Mo.App.1966); Tabor v. Hahs, 398 S.W.2d 7, 11 (Mo.App.1965). See also cases digested in SB Mo.Dig., Appeal and Error, Thus, even if there were error in submitting Instruction No. 3, the error did not prejudice Nebraska Pre-stressed.

Nebraska Prestressed also alleges that the trial court erred in failing to give several instructions that it proposed. Nebraska Prestressed offered its Instruction B claiming that it correctly sets out the ultimate jury issue involved in the litigation. The instruction is a combination of four MAI instructions pieced together to apply to the circumstances of this case. The instruction directs a verdict for Shell-Con and sets out damages, limiting Shell-Con to the proportion of the contract price that is attributable to the work and labor furnished. The instruction also requires the jury to deduct from this figure, payments made and any damages sustained by Nebraska Prestressed. This is the measure of damages used when the contractor voluntarily walks off the job and the owner, or the person standing in his place, has not prevented completion of the work. See Bradley Heating Co. v. Thomas M. Sayman Realty & Investment Co., supra. Although Nebraska Prestressed is entitled to have its theory of the case submitted to the jury (this was done in Instruction No. 4 in the form of an affirmative defense), Instruction B does not set out the ultimate jury issue. Shell-Con has made a submissable case, as noted above, that Nebraska Prestressed breached the contract, and Shell-Con is therefore entitled to an instruction on measure of damages when the owner, or person standing in his place, has breached the contract. The trial court properly refused to give Instruction B. The court also did not give Instruction E which was supplemental to Instruction B. Instruction E deals with Shell-Con’s damages arising from the extra work it performed for Nebraska Prestressed. Since the extra work and materials furnished would be considered by the jury under both Instructions 3 and 5, Instruction E would result in unnecessary duplication and was therefore properly refused.

Nebraska Prestressed claims that the court erred in refusing to give its Instruction A which attempts to place before the jury the roles defendant Alfred Lind-gren, Inc., and Pennsylvania Insurance Co. have in the litigation. The proposed instruction reads as follows:

“Under the law, defendants Alfred Lindgren, Inc. and the Pennsylvania Insurance Company are liable to Relator, Shell-Con, Inc., only in their capacities as Principal and Surety on the Construction Contract Performance Bond, and you may only assess such damages against these defendants in the same amount and to the same extent that you award damages against defendant, Nebraska Pre-stressed Concrete Co., for monies owing to Realtor, Shell-Con, Inc., for the value of the tools, equipment, material and labor furnished in the construction of the multi-purpose complex at the University of Missouri.”

In place of Instruction A, the trial court did submit to the jury Instruction No. 7:

“Under the law, the defendant, Alfred Lindgren, Inc., as Principal on the Construction Contract Performance Bond and the Pennsylvania Insurance Co., as Surety on said Bond are liable to plaintiffs to the same extent and in the same amount that Nebraska Prestressed Concrete Company is liable to plaintiff.”

We believe that these two instructions are substantively the same and both properly define the roles of these two defendants. The proposed instruction differs only in emphasis and in including the measure of damages, both of which are unnecessary in this instruction. Instruction No. 7 is as understandable as Instruction A, and we do not find error here merely because the defendant believes its proposed instruction is preferable.

Another allegation of error raised by Nebraska Prestressed deals with the trial court’s refusal to answer a question sent by the jury after it began its deliberations. The jury sent the judge the following note: “The jury would like to see the actually [sic] figures paid Shell-Con, Inc. to date, plus extra due him and paid him.” After discussing the request with counsel of both parties, the trial court sent back to the jury the following additional instruction: “The jury is to base decision [sic] on the evidence the jury has heard and remember it to be.” The defendant claims that the trial court should have instructed the jury as to the exact amount Nebraska Prestressed had paid Shell-Con, since that figure was conceded by the plaintiff. By refusing to so instruct, the defendant contends that the jury was left to speculate on a matter that was not at issue. Inasmuch as this case is to be remanded and it is unlikely that this issue will reoccur in the new trial, there is no need to delve into its merits.

We have indicated that there was sufficient evidence from which the jury could find that Nebraska Prestressed — not Shell-Con — had breached the contract between the parties. We are also convinced that there is no need to retry this case on the question of liability. We therefore affirm that portion of the judgment relating to the liability and finding that Nebraska Pre-stressed is liable to Shell-Con for damages in quantum meruit by reason of Nebraska Prestressed’s breach of contract.

A final point raised by Nebraska Prestressed concerns Shell-Con’s damage Instruction No. 5 which, in relevant part provides:

“If you find the issues in favor of the Plaintiff, you must award Plaintiff the reasonable value of labor, equipment, and materials incidental to the erection of precast concrete.
However, if you find for Defendants under Instruction No. 4 (defendant’s affirmative defense instruction) then your award must take into consideration damages, if any, as have resulted to Defendants.” (emphasis added).

Nebraska Prestressed challenges this instruction on two grounds. First, it claims that the jury should have been instructed that it must deduct damages, if any, resulting to the defendant. Nebraska Pre-stressed contends that the wording of In-straction No. 5 is inconsistent witb the wording of Instruction No. 6, Nebraska Prestressed’s damage instruction, if the jury finds in its favor on its affirmative' defense. Instruction No. 6 requires that the jury:

“Must deduct from this amount (the value of plaintiff’s work and labor) not only the amount of all payments made by defendant, Nebraska Prestressed Concrete Company, to plaintiff, Shell-Con, Inc., but also such sum as you believe was the difference between the reasonable cost to defendant, Nebraska Prestressed Concrete Company, of performing the work which plaintiff, Shell-Con, Inc., failed to perform and that proportion of the contract price attributable to the work which plaintiff, Shell-Con, Inc., failed to perform.”

Nebraska Prestressed claims that the “take into consideration” language of Instruction No. 5 is inconsistent with “must deduct” language of Instruction No. 6. “Instructions should not be so worded as to be conflicting.” Payton v. Bi-State Development Agency, 417 S.W.2d 522, 527 (Mo.App.1967). See also 27A Mo.Dig., Trial, &wkey;243 for digest of cases holding it is error to submit inconsistent or conflicting instructions. We find that the language in Instruction No. 5 does conflict and is inconsistent with the language in Instruction No. 6. Under Instruction No. 6, the jury, if finding for Nebraska Prestressed on its affirmative defense, is required to deduct defendant’s damages from the damages it finds that Shell-Con has sustained. Under the language of Instruction No. 5, the jury is only required to take into consideration the very same damages resulting to Nebraska Prestressed.

Nebraska Prestressed’s second objection to Instruction No. 5 is that it fails to require that the jury deduct, from whatever damages it finds were suffered by Shell-Con, the actual payments Nebraska Pre-stressed made to Shell-Con. Shell-Con conceded receiving a total of $75,278.03 in payments for work done under the contract and for extras. Therefore, whatever value the jury placed on the work done by Shell-Con, Nebraska Prestressed was entitled to have the amount it had already paid Shell-Con deducted from this figure. Nebraska Prestressed claims that since there is no MAI instruction that would be applicable to this situation, the trial court should have submitted a modification of MAI No. 7.01. MAI No. 7.01, applicable when there is an admitted settlement with a joint tort-fea-sor, instructs the jury that “[ajfter you have determined such sum, (plaintiff’s damages), you must deduct_dollars which (name of joint tort-feasor) has paid plaintiff.” Shell-Con claims that the problem is resolved by the inclusion in Instruction No. 6 of the requirement that the jury deduct payments made by Nebraska Prestressed. Instruction No. 6 does not completely cure the deficiencies of Instruction No. 5. Instruction No. 6 is predicated upon the jury’s finding in favor of Nebraska Prestressed on its affirmative defense. The two instructions read together seem to direct the jury to deduct payments made by Nebraska Pre-stressed only if the jury finds in favor of Nebraska Prestressed on its affirmative defense and not to deduct such payments if the jury finds in favor of Shell-Con’s theory of the case. We believe that this is misleading and that Nebraska Prestressed was entitled to have added to Instruction No. 5 a provision requiring the jury to deduct the amount of payments Nebraska Prestressed made to Shell-Con whether or not the jury found in favor of Nebraska Prestressed’s affirmative defense.

However, the error in these instructions lies only on the questions of damages and whether the jury chose to accept Nebraska Prestressed’s affirmative defense that Shell-Con had breached the contract. Since we are remanding the cause on the issue of damages, and since the jury rejected Nebraska Prestressed’s affirmative defense, the error of Instruction Nos. 5 and 6 can be cured, provided that on retrial on the issue of damages Nebraska Prestressed is given opportunity to have the jury instructed to deduct payments made to Shell-Con from the damages the jury finds Shell-Con has sustained.

The judgment finding in favor of Shell-Con on the issue of liability is affirmed and the cause remanded for retrial on the issue of damages only.

SIMEONE, P. J., and McMILLIAN, J., concur.

      . The court in Bradley found the omission of such instruction to be harmless error in that case.


source: Caselaw Access Project

author: DOWD, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Samuel BLOCKTON, Defendant-Appellant.
    No. 36295.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 5, 1975.

      Charles D. Kitchin, Public Defender, Cornelius T. Lane, Jr., Thomas J. Prebil, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Chief Counsel, Scott A. Raisher, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., David P. McDonald, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

The defendant was originally indicted on three counts of murder in first degree and one count of assault with intent to kill. He was found guilty by a jury of three counts of manslaughter. Defendant was granted a new trial and subsequently charged with three counts of manslaughter and one prior felony in connection with the shooting deaths of Marvin Gray, Donald Parish, and James Story. The case was tried in May, 1974. Defendant was found guilty of three counts of manslaughter. A prior felony conviction for murder in the second degree was proved and sentence was set by the court under the Second Offender Act, § 556.280 (RSMo 1969), at ten years imprisonment on each count of manslaughter to run consecutively for a total of thirty years. Defendant appeals.

Since defendant does not challenge the sufficiency of the evidence supporting his conviction, the evidence at the trial may be stated briefly. The shooting occurred on August 31, 1972 at the Bi-State Transit garage during an argument between defendant and the decedents, all of whom were employees of Bi-State. Several eyewitnesses testified that defendant shot Gray, Parish, and Story. There was testimony that defendant walked over and shot Parish twice in the head after Parish had fallen from the first shot. The defendant does not deny that he shot the decedents. The defendant testified that the victims of the shooting started the altercation by striking him, and he suggested that the decedents were angry at defendant because he had filed complaints against Bi-State charging racial discrimination in employment practices. After the shootings, the defendant spent a few days in East St. Louis, Illinois and several months in Michigan and Texas. He returned to St. Louis and was arrested in March, 1973.

Defendant raises three contentions on this appeal. Defendant first contends that the trial court committed prejudicial error it not declaring a mistrial following comments of the prosecutor made during his examination of a witness. During the direct examination of Arthur Mann, the prosecutor asked the witness whether Mr. Story (one of the victims) had made a comment to the witness. The questioning is as follows:

“A. Story, he came out past me.
“Q. He walked past you, right?
“A. Yeah.
“Q. Did he make any comment to you?
“A. He told me—
MR. LANE: Let me object.
THE COURT: Sustained.
MR. McDONALD: Judge, he was one of the men shot. It would have a bearing on the case as to what was—
MR. LANE: Let me object. Swear him in.
MR. McDONALD: I wish I could; if I could testify, we wouldn’t be trying this case.
THE COURT: I’ll sustain the objection.
(The following proceedings were had at the bench outside the hearing of the jury):
THE COURT: We’re not going to tolerate this and we’re not going to have it.
MR. LANE: Your honor, I’d like to object at this time to the statement made by the prosecutor regarding he wishes he could take the stand and testify because we wouldn’t be here.
THE COURT: I’ll sustain the objection.
(Proceedings were then resumed within the hearing of the jury as follows):
THE COURT: Jury instructed to disregard that last statement.”

We do not believe the trial court committed prejudicial error in not declaring a mistrial. First, the defendant did not ask for a mistrial during the trial, and the trial court need not grant more relief than that requested. State v. Brown, 480 S.W.2d 843, 845 (Mo.1972); State v. Johnson, 485 S.W.2d 106, 111 (Mo.1972). Second, the prosecutor’s comments were retaliatory in nature and were invited by the defense attorney’s comment to “Swear him [prosecutor] in” and testify. Third, the prosecutor’s comments were not such as to mandate a mistrial on the court’s own motion.

It is improper for a prosecuting attorney to intimate to a jury that he knows facts which are not in evidence which point to defendant’s guilt. Failure to sustain objections to such arguments by the prosecuting attorney is prejudicial error. State v. Lenzner, 338 Mo. 903, 92 S.W.2d 895, 896 (1936); State v. Montgomery, 363 Mo. 459, 251 S.W.2d 654, 658 (1952). However, improper comments made by the prosecutor do not inexorably result in a new trial. Cases which might support appellant in his argument involved instances in which the trial court reinforced the prosecutor’s comments by overruling objections to the prosecuting attorney’s remarks or by failing to take corrective measures. State v. Montgomery, supra; State v. Lenzner, supra, at 896-897; State v. Mathis, 323 Mo. 37, 18 S.W.2d 8, 10 (1929); State v. Dixon, 253 S.W. 746, 748 (Mo.1923). Failure to declare a mistrial after such prejudicial remarks by the prosecution has been upheld when the trial judge sustained the objection and gave an admonishing instruction. State v. Heather, 498 S.W.2d 300, 303 (Mo.App.1973); State v. Raspberry, 452 S.W.2d 169, 173 (Mo.1970); State v. Kimmins, 514 S.W.2d 381, 382 (Mo.App.1974); State v. Robinson, 516 S.W.2d 40, 44 (Mo.App.1974); State v. Stroud, 362 Mo. 124, 240 S.W.2d 111, 113 (1951); State v. Miller, 359 Mo. 327, 221 S.W.2d 724, 727 (1949).

The declaration of a mistrial is a drastic remedy, utilized only when the prejudicial effect of the error can be removed in no other way. For this reason, the trial judge is given broad discretion as to whether mistrial should be declared. The trial judge observed the incident and has the better position to observe the magnitude and effect of the error and to gauge the measures necessary to cure it. The appellate court’s function is to determine whether, as a matter of law, the trial court abused its discretion to the prejudice of the appellant in refusing to grant a mistrial. State v. Heather, supra; State v. Raspberry, supra; State v. Smith, 431 S.W.2d 74 (Mo.1968). It is not an abuse of discretion to deny a request for a mistrial subsequent to improper remarks by the prosecution to which objections were sustained and admonishing instructions given. State v. Heather, supra; State v. Kimmins, supra; State v. Robinson, supra.

Since the error is not so prejudicial and impressive to require a mistrial upon request, this court is loath to hold that failure to declare a mistrial upon the court’s own motion is an abuse of discretion. Here, the appellant did not request a mistrial during the trial. Our Supreme Court has affirmed a conviction when an objection was sustained to comments by the prosecutor and no further relief was requested. State v. Brown, supra, at 845.

Appellant argues that the trial court’s failure to declare a mistrial is constitutional error. We have considered Chapman v. California, 386 U.S. 18, 24-25, 87 S.Ct. 824,17 L.Ed.2d 705 (1967), and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and do not believe that these cases require the declaration of a mistrial under the circumstances. As said, the trial judge unequivocally sustained the defendant’s objection and instructed the jury to disregard the prosecutor’s remarks. We feel this was sufficient to cure the error. Considering the entire record before us, we do not believe the trial court abused its discretion by failing to declare a mistrial on its own motion.

The appellant’s second argument assess that the jury Instructions Numbers 5, 7, and 9 were erroneous. These instructions submitted the issue of manslaughter to the jury for each of the three deaths charged against the defendant. Appellant argues that such instructions “failed to instruct the jury as to defendant’s intent, an element of manslaughter” and that the structure of the instructions “placed the burden upon the defendant to prove his defense.” Instructions 5, 7, and 9 were identical except as to the count, the name of the victim, and the cross-reference to the justifiable homicide instruction submitted with each of the three instructions for manslaughter. The format of Instructions 5, 7 and 9 was as follows:

“As to Count_, if you find and believe from the evidence beyond a reasonable doubt that on August 31, 1972 in the City of St. Louis, State of Missouri, the defendant caused the death of_by shooting him and that the death was not a justifiable homicide as submitted in Instruction No._, then you will find the defendant guilty under Count _ of manslaughter.
“However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, then you must find the defendant not guilty under Count_of that offense.”

Such instructions conform to MAI-CR No. 6.08, the “voluntary manslaughter” instruction. MAI-CR No. 6.08, Notes on Use (4). In the MAI-CR Comments it is declared that manslaughter is a residual homicide. The killing would be murder in the first or second degree were it not mitigated to manslaughter and is a killing without just cause or excuse. There are three types of manslaughter: voluntary manslaughter, which involves an intent to kill; involuntary manslaughter, which involves the intent to do an unlawful, non-felonious act; and manslaughter by culpable negligence. Scurlock, Manslaughter in The Missouri Bar Committee Comments on Missouri Approved Criminal Instructions (1974).

We believe that MAI-CR combines the instructions for voluntary and involuntary manslaughter in one instruction, MAI-CR No. 6.08. While a separate instruction is provided for manslaughter by culpable negligence, MAI-CR No. 6.10, no separate instruction is provided for involuntary manslaughter. In addition, no distinction is drawn between voluntary and involuntary manslaughter in the statutory definition contained in Section 559.070 (RSMo. 1969). Thus, MAI-CR No. 6.08 is the applicable instruction for both voluntary and involuntary manslaughter.

Rule 20.02(c) provides that whenever an MAI-CR instruction is applicable under the law to the facts, the MAI-CR instruction shall be given to the exclusion of any other on the same subject. Since MAI-CR No. 6.08 is the applicable instruction for manslaughter other than by culpable negligence, it is not error to give such instruction. Even before the MAI-CR instructions became mandatory, it had been held that MAI-CR instructions would not be declared erroneous on appeal. “It is not open to us to declare erroneous the use of that form [of instruction] which now has been adopted for standard use by the Supreme Court.” State v. Yeokum, 516 S.W.2d 585, 537 (Mo.App.1974). Here, the trial court properly gave MAI-CR No. 6.08 which is mandated.

Likewise, MAI-CR No. 6.08 sufficiently instructs the jury upon all questions of law necessary for the verdict, and also complied with the statutory definition of manslaughter. Manslaughter is defined as “every killing of a human being by the act, procurement or culpable negligence of another, not herein declared to be murder or excusable or justifiable homicide.” § 559.070 (RSMo. 1969). MAI-CR need not mention intent because manslaughter is a residual homicide. If a defendant kills a human being and the offense is not murder and not excusable or justifiable homicide, it is manslaughter. Scurlock, Manslaughter, in The Missouri Bar Committee Comments on Missouri Approved Criminal Instructions (1974).

We also reject the contention that the negative construction of the manslaughter instructions or the order in which the manslaughter and justifiable homicide instructions were given placed the burden on the defendant to prove his defenses. It is true that the defendant has no burden to prove self-defense. Cases cited by appellant hold only that jury instructions which expressly state that the defendant has the burden of proof on the issue of self-defense are erroneous. State v. Malone, 327 Mo. 1217, 39 S.W.2d 786 (1931); State v. Minnis, 486 S.W.2d 280, 284 (Mo.1972). All instructions are to be considered together. If the trial court has given the presumption of innocence and burden of proof instruction, as was done here in Instruction Number 4, the order in which instructions are given does not shift the burden of proving self-defense to the defendant. State v. Robinson, 516 S.W.2d 40, 43-44 (Mo.App.1974). The negative structure of a self-defense instruction has been held not to shift the burden of proof in State v. Holt, 434 S.W.2d 576, 579-580 (Mo.1968). In that case, the court upheld the structure of the instruction which posited that if the defendant killed the victim, but it was self-defense, then the defendant was not guilty. This is the same negative structure of which the appellant now complains.

Appellant’s final argument maintains that the trial court erred in submitting Instruction Number 12 which permitted the jury to consider defendant’s flight to determine whether defendant was guilty of crimes charged. Appellant’s brief avers that such an instruction is not expressly authorized by MAI-CR and is therefore erroneous.

Appellant has not preserved this point for review. Although appellant challenged this instruction in his motion for a new trial, the grounds then asserted were that such an instruction was a comment on the evidence and lacked evidentiary support. On appeal, appellant abandoned these grounds and asserts that the instruction is reversible error because no flight instruction is contained in MAI-CR. An allegation of error is not preserved if the appellant urges only new grounds on appeal. State v. Davis, 482 S.W.2d 486, 489 (Mo.1972); State v. Cromwell, 509 S.W.2d 144, 147-148 (Mo.App.1974). The appellant cannot broaden the scope of his objection on appeal from the precise objection made at the trial. State v. Larkins, 518 S.W.2d 131, 134 (Mo.App.1974). When objections to instructions are not preserved the appellate court will not consider the instructions as plain error unless the court below so misdirected or failed to instruct the jury on the law as to cause manifest injustice. State v. Grebe, 512 S.W.2d 409, 410 (Mo.App.1974).

MAI-CR Number 5.40, which prohibits the submission of a flight instruction, has been adopted and became effective on March 1, 1975. However, defendant’s trial was held in May, 1974 and is therefore controlled by State v. Fleming, 523 S.W.2d 849 (Mo.App.1975). State v. Fleming notes the long-standing rule prior to adoption of MAI-CR No. 5.40 that a flight instruction was permissible if the evidence supported it. After an analysis of MAI-CR No. 5.40, Fleming holds that MAI-CR No. 5.40 bars the use of a flight instruction only in cases tried after March 1,1975. In trials prior to March, 1975, such as appellant’s, a flight instruction is proper when warranted. Clearly, the evidence, unchallenged by defendant, warranted the flight instruction in this case.

We find that the trial court did not err on any of the grounds presented by this appeal. The judgment is affirmed.

WEIER, P. J., and RENDLEN, J., concur.

      . Scurlock, Manslaughter in The Missouri Bar Committee Comments on Missouri Approved Criminal Instructions (1974).


author: SIMEONE, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Edward Eugene COLLETT, Defendant-Appellant.
    No. 35980.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 12, 1975.

      William J. Shaw, Public Defender, Howard Schainker, Dennis Neil Smith, Asst. Public Defenders, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Pros. Atty., George Westfall, Sam C. Bertolet, Asst. Pros. Attys., Clayton, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

I

Introduction

This is an appeal by the defendant-appellant, Edward Eugene Collett, from a judgment of conviction entered January 18, 1974, by which the appellant was sentenced by the court to the department of corrections for the offenses of robbery in the first degree by means of a dangerous and deadly weapon and assault with intent to do great bodily harm with malice. §§ 560.120, 559.-180, RSMo 1969.

Appellant was charged in Count I of an amended information with robbery, first degree and in Count II with assault with intent to do great bodily harm with malice; he was found guilty by a jury on both counts, and the court, having found the Second Offender Act, § 556.280, RSMo 1969, applicable, sentenced the appellant to two thirty-year terms to run consecutively. He appeals. For reasons hereinafter stated, we affirm.

Appellant does not challenge the sufficiency of the evidence, so that only those facts necessary for the disposition of the points raised on this appeal need be stated.

II

The Facts

A jury could reasonably find the following: Reverend Emmett Louis Glenn, an ordained minister, in his spare time assisted his son, Donald, at his son’s Shell Service Station, located at 13090 Tesson Ferry Road in St. Louis County. On the evening of March 3, 1970, Rev. Glenn was working alone at the station office. At about 8:00 p. m., a Chevrolet pickup truck pulled into the service station near the entrance to the office. The passenger side faced the office. Rev. Glenn saw the truck pull up as he was seated at the front desk facing a window overlooking the parking area. He was seated at the desk, writing out work orders. There were three persons in the truck. Rev. Glenn noticed that on the side of the truck were the words “Dittmer, Missouri.” Two of the men, identified as the defendant and Michael Wells, came into the office, and one asked where they could “get a sandwich.” The third man, James Poirrer, crossed in front of the office and went to the other side of the building where there was a soda machine. While the defendant and Wells were talking, Rev. Glenn had “eye contact” with them. One of the men, identified by Rev. Glenn as the defendant, complained about having a pain in his abdomen. “He kind of bent over and when he raised up he had a gun in his hand. He said: This is a stick up. You get that register open and you get that register open in a hurry.” Glenn opened the register, and Collett commanded Wells to “take the money out.” Wells took the “bills” from the register — about $182.00. Glenn was then taken “around the back,” “out through the side door past the cash register and around to the back.” The side door led to a “bay” area and to the “stock room.” At trial, accounts of Glenn and Wells differed as to who took Glenn to the stock room. Wells testified that both he and the defendant began to accompany Glenn' to the stock room, but that Wells went to wait on a customer who had pulled into the station. Glenn indicated that Wells led him to the stock room holding something to his back. According to Glenn, while he was in the stock room, both Wells and Collett had a gun, although Wells denied he had a gun. Collett entered the stock room and said, “What have you got this guy standing up for. Get him on the floor.” Collett then ordered Glenn to lie on the floor. Possibly a minute later, the third man, James Poirrer, came in and “shouted to the other two men in the stock room the police has been alerted. We have got to get out of here.” Collett then told Glenn to put his head down. “He was close to me standing over me.” Then “I was hit in the face on the right side.” “Next thing occured [sic] I was hit on the back of the head.” “Then I was hit a third time and I heard a sound like the firing of a gun and I went completely out.” The whole time that Collett was in the back room he had “a gun in his hands.” Glenn’s ear was “practically cut off,” and he spent some nine days in the hospital. From the time that the gun was pulled in the office to the time Glenn got to the back room, “a minute; maybe two minutes; somewhere in that time limit” elapsed. Glenn’s wallet was also taken from him.

While Glenn was in the back room, a customer, Raymond Knittig, whose father owns a bowling alley across the street from the service station, pulled in for oil. Wells waited on him but did not know how to put the oil in the engine or how much it cost. Knittig told Wells he wanted two cans and told him he thought it cost $.40 a can. He gave Wells a $10.00 bill. While Wells waited on Knittig, Poirrer waited on another customer. Wells went to the stock room to get change. After receiving his change, Knittig left. Wells then got into the truck and tried to start it. “And I heard what I thought was a shot. Next thing I knew both [Poirrer and Collett] went out to the truck and both got into the truck.” Wells asked Collett, “Did you shoot him?” and Collett replied, “No, the gun discharged when I hit him.”

The three then went to Collett’s house and divided the money and the contents of Glenn’s wallet, which had been taken from him.

Some minutes after the robbery, Officer Thomas Gilyon of the St. Louis County Police Department received a radio dispatch and proceeded to the Shell station. When he arrived, Rev. Glenn was bleeding. Soon Patrolman George Ice and Detective Marvin Phelan also arrived. Rev. Glenn gave them a description of the three men and of the pickup truck (a “light green”) and then was taken in an ambulance to the hospital. Other officers came, and photographs were taken. The next day, Patrolman Ice showed Glenn some photographs, but he was not able to identify anyone from the photos. On two separate occasions following Glenn’s release from the hospital, he was shown a number of photographs. On the second occasion, March 20,1970, Officer Jimmie Kitterman of the police department of the City of St._ Louis went to Glenn’s home and showed him six photographs, and Glenn identified Collett. Glenn stated that there was no doubt in his mind that Collett was the “one who came in first with the gun.”

At trial, during direct examination, the prosecutor asked Officer Kitterman:

“Q. When you went to see him did you have something to show him?
A. Yes.
Q. What?
A. Photographs.
Q. About how many?
A. Six.
Q. Was Mr. Collett’s photograph one of those?
A. Yes, it was.
Q. Did Mr. Glenn have anything with regard to that photograph to say to you?
A. Yes. He positively identified — ”

Then the following occurred:

“[Defense counsel]: Your Honor, I will object to anything somebody else said as being hearsay.
THE COURT: Sustained.
[Prosecutor]: Okay. Now that was the same day that you arrested Edward Col-lett?

That same evening, March 20, about an hour later, Officer Kitterman and Detective Chester Kell went to the home of Mr. Collett’s mother, Mrs. Edith Kotura, where Collett was staying. They waited for Col-lett. In time, he drove up in a red and white pickup truck, came toward the house and for “unknown reasons he broke and ran.” The officers gave chase; Collett returned to the house through the back door and was arrested in the kitchen. The pickup truck was parked outside, and later police photographers took pictures of it. Officer Kitterman identified the name of “Ditt-mer, Missouri” on the side of the truck. Later that evening, Kitterman took Glenn to see the truck. Glenn said that the truck was the truck that “drove up that night.”

The next day, Rev. Glenn viewed a lineup and recognized Collett as the “man that pulled the gun on me and robbed me” and as the one who told him to put his head down in the back room. At the time of the lineup, however, Glenn indicated that Col-lett had a “crew cut” which was different than at the time of the robbery, since it was “medium length” and “combed.”

On April 1,1970, Officer Leo Burle, of St. Louis County, arrested James Poirrer, and on April 2,1970, Michael Wells surrendered at St. Louis County Police Headquarters, being brought there by his father. Wells signed a statement.

One of the principal witnesses against Collett was Michael Wells. Wells testified that he and Poirrer had been in a tavern during the afternoon of March 3, and drank a number of beers. They then went to a restaurant at Grand and Arsenal, where Collett’s wife worked and where he would often see Collett. At the restaurant, they met Collett. At about 4:30 p. m. the three left in Collett’s truck, and at about 8:00 p. m. they stopped at the Shell station. Poirrer and Collett got out of the truck, and Wells stood at the doorway. Wells said he saw Collett pull a gun on Glenn and tell the man to open the cash register, and he “instructed me [Wells] to take the money out. I did that.” Wells testified that he and his father went to the police department about a month after the robbery and told his story. On direct and on cross-examination, Wells testified that he pleaded guilty to robbery with a dangerous and deadly weapon and received a three-year probation. While he was in jail, his lawyer suggested that, while there were no promises or guarantees, if he agreed to testify against Col-lett he might get probation or it would be helpful “with regard to what the Judge would do . He was in fact put on probation in March, 1973. He was never told that he would not make probation if he did not come in and testify against Collett. He admitted he had been sentenced and that he was on probation. On recross, defense counsel indicated the “whole deal” had been pretty nice for you [Wells]. “You have confessed to an armed robbery and beating an old man and you are still walking the streets?” At trial and on cross-examination, Wells stated that there had been no promises or guarantees made to him in return for his testimony against Collett.

The defendant’s defense was essentially an alibi and an attempt to discredit the testimony of Wells and Glenn. The defense admitted that a robbery had taken place and that Glenn was assaulted but contended that Collett was not the person who participated therein. The defendant’s wife, Viola, testified that she married Collett in December, 1969, and that she worked as a waitress for the Courtesy Restaurants. She testified that her husband always had dinner with her from seven to eight o’clock each and every night since they were married. She testified that on the evening of March 3, 1970, she and her husband had dinner at the restaurant where she was working — 18th and Olive — that they finished dinner at 8:00 p. m., that Collett played the pinball machine until about 9:00 p. m., left, and that he returned to pick her up at midnight.

Viola also testified that sometime prior to March 3,1970, Wells and Collett had gotten into a fight at a restaurant where Viola was working and that as Wells left he vowed he would “get even . . . one way or the other.” She also testified that on the evening of March 19, 1970, Wells came into the restaurant and told Viola that “he had fixed Butch’s [Collett’s] wagon” — he said he had “pulled an armed robbery and he had let the police know my husband was the one that done it.” That is why Viola and Collett went to his mother’s home later that night.

Viola explained the reason that Collett “ran” on the evening of March 20 — the night he was arrested. She testified that she was in the truck when they pulled up to Collett’s mother’s house and when she saw a “stranger” at the window she thought it was Wells or Poirrer and not the police. And when Collett returned to the house after running and was told it was the police, he said, “Well, we will wait for them.”

The remainder of the defendant’s case consisted of impeaching Wells and Glenn. The defendant’s mother and his sister both testified that he always had a crew cut and that sometime in April, Wells came to the house and said, “I’m Mike Wells. I’m the one who was in the burglary or armed robbery, whatever, in the service station out in the County. And I want you to know Ed was not with me .... [BJefore I let your son go to prison I’ll tell the truth.” Wells explained this by indicating he had done this at the request of Collett.

The defense also introduced the testimony of Mr. Les “Papa” Lewis, his wife and daughter. Mr. Lewis testified that sometime in May or June, 1970, while having dinner with his family at a restaurant, Wells came over to his table, introduced himself as knowing him “from Butch” and stated that he had to go to court the next day in regard to the robbery — “the one where I almost beat that man to death.” According to Lewis, Wells said he was not worried because “I think he said his stepfather was the prosecutor in the case.” Mr. Lewis had never before met Wells, although he and his family knew Collett for some six or seven years.

Much testimony was devoted to the color and style of the pickup truck, to the description of Collett — his weight, color of hair and eyes — and to the length or shortness of his hair. Defense testimony differed in some particulars from the state’s witnesses.

The court gave a number of instructions. The court instructed the jury as to robbery in the first degree by means of a deadly and dangerous weapon under Count I (Instruction No. 6) and instructed on assault with intent to do great bodily harm with malice under Count II of the amended information (Instruction No. 8). The court also gave Instruction No. 11, which told the jury that if .it did not find the defendant guilty of assault with malice then it must consider whether he was guilty of assault without malice.

During defense counsel’s closing argument, which brought out a number of inconsistencies and questioned the credibility of Wells, defense counsel stated, “What we know about the nice boy, Mike Wells is he is on probation. That was the only thing he has ever done. ... He has entered a plea of guilty to armed robbery, a very serious crime in this State.” “Why did he do it? Number One: He sought revenge. . The second was to make himself a pretty nice deal . . . Boy, they treated him great.” “. . .He was put on probation after having confessed to armed robbery and all of the crimes in the interim. How is it that man is loose on the street? Somebody went to bat for Mm and that’s the reason he came in on Collet [sic] and made up the story on Collet, to help himself and to get even with Collet for a beating he took.”

In the second half of the prosecutor’s argument, the prosecutor stated that “We are talking about Mr. Wells being a convicted felon. Do you know why? Because he pled guilty to what he did. He came in and pled guilty. . . . You ask yourself why did he get probation? I have no quarrel with it. If you want to assume the State recommended probation you can assume that, if you like. . . . ” Defense counsel then stated: “Wait a minute. What is this? Are you saying a deal was made? . . . You said you made a deal and I object. If there has been a deal made, I didn’t know about it. This is the first I heard about it. I object and — ” He moved for a mistrial. The trial court overruled the objection and denied the motion for mistrial.

On November 16, 1973, the jury found the defendant guilty on both counts, and after the defendant’s motion for new trial was overruled on December 20, 1973, the court sentenced the defendant to thirty years on each of the two counts to run consecutively.

Ill

The Contentions

On this appeal, the appellant contends that the court erred: (1) “in permitting Officer Kitterman to testify as to Mr. Glenn’s out of court identification of appellant from a group of photographs in that said testimony was hearsay and was inadmissible in absence of any impeachment of identifying witness’ testimony,” (2) “in failing to grant a mistrial based on the state not disclosing, upon request, the existence of a ‘deal’ made in exchange for an accomplice’s testimony and in allowing the prosecutor to argue credibility on same matter in the state’s last portion of closing argument, in that said failure to disclose such evidence denied appellant his right of due process,” and (3) in the “submission of Counts I and II, by way of Instructions No. 6, 8, and 11, [which] subjected appellant to multiple conviction [sic] and punishment for a single offense and thereby placed him twice in jeopardy.”

IY

Motion to Perfect Transcript

At the outset, we must dispose of a preliminary matter. On oral argument of this cause before this court, appellate counsel orally, which was later reduced to writing, filed a “motion to perfect transcript” and moved this court to direct the clerk of the circuit court to certify the circuit court record in the case of State v. [Michael] Wells, Cause No. 311340, and to make that record a part of the transcript of the present appeal of Edward Eugene Collett. The motion urged us to do so pursuant to Rule 83.03 [sie]. As grounds for said motion, counsel in argument indicated we could and should take judicial notice of the records of the circuit court, and in the motion urged us to order up such records because they “clearly indicate that the Prosecuting Attorney . . . presented false evidence at the trial of appellant . . .” In a memorandum in support of the “motion to perfect” filed subsequent to the motion, appellant urges us to grant the motion under Rule 84.03, because the trial record indicates that on April 20,1971, some two years prior to the trial of defendant, (1) Wells was endorsed as a witness against Collett, (2) Wells pleaded guilty to assault with intent to rob and (3) the state amended the charge from robbery with a dangerous and deadly weapon to assault with intent to rob. This, appellant contends, although we are not so clearly persuaded, shows that “some sort of arrangement was made between the state and Michael Wells in exchange for Wells’ testimony.” Hence, appellant contends we could issue a “writ of Certiori [sic]” to order up the record of the circuit court file of State v. Wells.

The state opposes such motion on the ground that we cannot take judicial notice of matters not before the trial court “unless those matters have previously been on file and been made a part of the records of the appellate court.” It relies on Rule 81.12(c) —“... If anything material to either party is omitted from the transcript . the parties by stipulation, or the trial court or the appellant court . shall direct that the omission shall be corrected . . . . The appellate court may . . . order that a supplemental transcript on appeal shall be prepared and filed by either party or by the clerk of the trial court ... or the clerk may be directed to send up any original documents or exhibits.”

It contends that the Rules contain no provisions for supplementing the transcript with facts which have not been presented to the trial court from which an appeal is taken, and further contends that while we may take judicial notice of our own records, we cannot take judicial notice of the records in other courts.

Appellant correctly quotes from that portion of Supreme Court Rule 84.03 which reads: “. . . The court may of its own motion, at any time, require the clerk of the trial court to send up a complete transcript or any portion thereof or any original documents or exhibits.” Appellant urges, in effect, that the foregoing passage empowers this court to supplement the transcript on appeal with facts and records which have not been presented to the trial court from which the appeal is taken. In support of this position, appellant cites two cases, Kollmeyer v. Willis, 408 S.W.2d 370 (Mo. App.1966), and McDaniel v. Lovelace et al., 392 S.W.2d 422 (Mo.App.1965). Yet, an examination of these cases indicates that the various records and papers that were ordered up from the circuit court were properly before that court at trial or were records of entries made by that court at trial. All of the records and files were from prior proceedings in the same cause. Likewise, the case of Sanderson v. Producers Commission Ass’n, 241 S.W.2d 273 (Mo.App.1951), which appellant claims presents an analogous situation to the case presently before this court, can be distinguished on the ground that the record ordered up from the circuit court was a certified copy of the judgment of that court in the proceeding appealed from.

Although we are dealing with evidence that was not properly before the trial court below, counsel for appellant in argument indicated that we could take judicial notice of the records of the circuit court. We do not agree. Although we may take judicial notice of our own records, Hays-Fendler Const. Co. v. Traroloc Investment Co., 521 S.W.2d 171 (Mo.App.1975), matters of record in other courts are denied notice. Kansas City v. Mathis, 409 S.W.2d 280 (Mo.App.1966); State v. Moreland, 351 S.W.2d 33, 37 (Mo.1961).

We deny the appellant’s motion to perfect the transcript. We may consider only those matters presented on the record made in the lower court. Kansas City v. Mathis, supra, 409 S.W.2d at 288, and eases cited therein.

Rule 84.03 does not authorize the granting of the motion as appellant contends. This Rule authorizes us to require the clerk to send up a complete transcript or a portion thereof or any original documents or exhibits in the case tried before the circuit court and does not authorize us to order up any and all matters that may have some relation to the cause on appeal.

Y

Officer Kitterman’s Testimony

We turn to the merits. As to his first point, appellant argues that the “facts at bar are substantially the same as those contained” in State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972). He argues that when “Officer Kitterman was allowed to testify that he showed the victim, Mr. Glenn, six photographs, and of which Mr. Glenn identified the appellant therefrom, the very same rule of law was violated” as in Degraffenreid. The defendant argues that this inadmissible testimony prejudiced him.

With reference to this point, we note that when the question was asked of Officer Kitterman, “Did Mr. Glenn have anything with regard to that photograph to say to you?” and Officer Kitterman stated, “Yes. He positively identified — ”, an objection was immediately made and sustained. No further reference was made to a statement. Counsel did not request a mistrial. He received all the relief requested. Where appellant has received all the relief requested, he cannot complain on appeal. State v. Allen, 429 S.W.2d 697, 699 (Mo.1968).

Furthermore, there was no specific allegation of error as to this point in the motion for new trial. The motion did indicate that the court erred in overruling the continuing objection and motion for mistrial when Officer Kitterman testified to presenting defendant’s photograph to Glenn, on the ground that such testimony raised the inference that defendant had a prior police record. But'this point in the motion for new trial did not go to the point raised on this appeal that the court erred in permitting Kitterman to testify as to Glenn’s out of court identification. This allegation, accordingly, has not been preserved for review. State v. Lee, 522 S.W.2d 63, 65 (Mo.App.1975).

But even though not preserved, the statement of Officer Kitterman was not prejudicial error. We recognize that the testimony of an officer that an identifying witness had identified the defendant by means of a photograph is inadmissible absent impeachment of the identifying witness’ testimony with respect to the extrajudicial identification. State v. Degraffenreid, supra, 477 S.W.2d at 63. But the admission of such testimony may or may not be harmless error. In Degraffenreid, there was only one eye witness, a 78 year old man, and the testimony of the officer corroborating the identifying witness could have tipped the scales against defendant. The police officer there testified in the state’s case that the identifying witness identified a photograph of the defendant and identified him in a lineup. We believe Degraffenreid is distinguishable and does not control this case. Officer Kitterman never finished the statement. Even if the logical inference is that Kitterman’s statement was that “[h]e [Glenn] positively identified” Collett, an objection was immediately made and sustained. No further reference was made to the identification. Furthermore, unlike Degraffenreid, Glenn was not the only witness to the affair. While Wells was admittedly an accomplice, he identified Collett as one of the persons who participated in the robbery; the fact that Wells was an admitted accomplice goes to the weight and not the admissibility of his testimony. The limitations of Degraffenreid are shown in the concurring opinion of Judge Finch — there are cases where such evidence did not operate to the prejudice of defendant. See also State v. Kennedy, 513 S.W.2d 697 (Mo.App.1974). We cannot conclude that the incomplete statement of Officer Kitterman, objected to and sustained by the court, constituted, as in Degraffen-reid, prejudicial error in the context of this record. In view of the fact that the testimony of Glenn which placed the defendant at the scene of the robbery was substantially corroborated by Wells, we cannot conclude that Kitterman’s three-word partial response could have had such an effect on the jury as in Degraffenreid so as to “tip the scales against the defendant.”

We rule this point against appellant.

VI

The “Deal”

Next, appellant argues that the court erred in refusing to grant a mistrial during the prosecutor’s argument because the state did not disclose “upon request” the existence of a “deal” made with Wells in exchange for his testimony against Collett. Appellant also contends it was error for the prosecutor to comment on this in his argument. He relies on State v. Brooks, 513 S.W.2d 168 (Mo.App.1973), and the decisions of the Supreme Court of the United States.

While appellant’s point on appeal in this regard is that the court erred in failing to grant a mistrial because the state did not disclose the existence of a “deal” made with Wells in exchange for his testimony against Collett, the true issue as we see it is: Was there error because the jury was, as in Brooks, unaware of the facts which might cause Wells to be less than fully truthful or untruthful?

As stated in Giglio v. United States, supra, 405 U.S. at 153-154, 92 S.Ct. at 766, there is no question that “. . . deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with ‘rudimentary demands of justice.’ ... In Napue v. Illinois [supra], we said, ‘[t]he same result obtains when the State, although not soliciting false evidence, allows it to go uncorreeted when- it appears.’ . . . ” See also State v. Ball, 408 S.W.2d 17, 20 (Mo.1966); State v. Thompson, 396 S.W.2d 697, 700 (Mo. banc 1965); and State v. Hurd, 520 S.W.2d 158, 164-165 (Mo.App.1975).

The appellant relies on the well-settled principle first established in Mooney v. Holohan, 294 U.S. 108, 55 S.Ct. 340, 79 L.Ed. 791 (1934), and developed in Brady v. State of Maryland, supra, that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution.” Brady, supra, 373 U.S. at 87, 83 S.Ct. at 1196. See also State v. Thompson, supra; State v. Hurd, supra, and Annot., 34 A.L.R.3d 17 (1970). This general principle was extended in Napue v. People of the State of Illinois, supra, to include false testimony which goes only to the credibility of a material prosecution witness. “The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend. .” Napue v. People of the State of Illinois, supra, 360 U.S. at 269, 79 S.Ct. at 1177.

In Giglio v. United States, supra, where the only witness against the defendant denied that he had received any promises or entered into an agreement for prosecutorial leniency when in fact an affidavit of a prosecutor showed otherwise, the Supreme Court of the United States held that the credibility of the Government’s witness was an important issue in the case and that “evidence of any understanding or agreement as to a future prosecution would be relevant to his [witness’] credibility and the jury was entitled to know of it.” 405 U.S. at 155, 92 S.Ct. at 766.

Missouri courts have followed these decisions. We held in State v. Brooks, supra, that “[c]ourts have traditionally been cautious of convictions obtained upon the uncorroborated testimony of persons who have participated in the crime. . . . [F]or a jury to assess the credibility of a witness, it must be aware of facts which might cause a witness to be less than fully truthful or untruthful. The determination of that credibility is solely within the province of the jury and it is entitled to any information which might bear on that credibility.” State v. Brooks, supra, 513 S.W.2d at 173. See also State v. McClain, 498 S.W.2d 798 (Mo. banc 1973).

These authorities recognize that when the reliability of a material witness may well be determinative of the guilt or innocence of the accused, nondisclosure of evidence affecting his credibility falls within the rule that suppression or nondisclosure of material evidence justifies a new trial.

In these decisions, the tests of whether or not a reversal of a conviction should result are (1) whether the nondisc-losed evidence had a reasonable likelihood of affecting the judgment of the jury, Giglio v. United States, supra, 405 U.S. at 154, 92 S.Ct. 763; Napue, supra, 360 U.S. at 271, 79 S.Ct. 1173; State v. McClain, supra, 498 S.W.2d at 800; and (2) whether the evidence is “material.” Brady v. State of Maryland, supra, 373 U.S. at 87, 83 S.Ct. 1194.

The whole thrust of Napue, Giglio, Brooks and other authorities is that the triers of facts are entitled to know and be aware of any arrangement or agreement with a material prosecution witness because such agreement might cause the witness to be less than truthful or untruthful, and because without such information the triers of fact are unable to test the credibility of the material prosecution witness. In these decisions, the failure of the state to inform the triers of facts of an agreement or arrangement made in fact and disclosed by the record may well be determinative of the guilt or innocence of the accused.

In all of the authorities the jury was not aware or apprised of an arrangement or agreement made in fact between the material witness and the prosecution. Thus, the jury did not have the benefit of testing the credibility of the material prosecution witness.

We believe that under the circumstances here, the appellant’s contention that he is entitled to a new trial because of a violation of the above authorities and because the state failed to disclose a “deal” is without merit.

First, the record, unlike all of the authorities discussed above, does not clearly disclose that any arrangement or agreement was made with Wells in exchange for his testimony against the appellant. “To warrant the granting of the motion for new trial, it is incumbent upon the defendant to show that the testimony used at trial was deliberately false and known to be so by the prosecution and that the conviction was obtained by reason thereof.” State v. Flauaus, 515 S.W.2d 873, 880 (Mo.App.1974).

Furthermore, in all of the authorities the facts as to an agreement or arrangement were fully developed either in hearings, in other proceedings or by way of stipulation.

Secondly and much more important, the decisions relied upon and discussed above are not controlling or dispositive of this cause. The important and overriding consideration, under the above authorities, is that the jury must be aware of facts concerning an arrangement or agreement which might cause the witness to be less than truthful so that it is in a position to test the credibility of the material prosecution witness. In this case, the jury could not help but be aware of the facts which might cause Wells to be less than truthful. There are numerous instances in the record to show that it was clear to the jury that Wells participated in the robbery on March 3, that he pleaded guilty for his participation in that robbery and was placed on probation. These matters were brought out on numerous occasions by both the defense and prosecution. In view of such circumstances, the jury was not kept in the dark; they were aware of facts which might cause Wells to be less than truthful and were able to test his credibility. Hence, we believe that Napue, Giglio and Brooks are not controlling and dispositive of this case.

Furthermore, Wells was not, as in Giglio, supra, the only witness; there was strong, reliable evidence from Reverend Glenn, so that, unlike Giglio, the reliability of Wells may well not have been determinative, of guilt or innocence.

Under all the circumstances, we do not believe that a reversal is required here, for we do not believe that the authorities relied upon are dispositive of the issues here, and we do not believe that, under the tests of Giglio, Napue and Brooks, the nondisclosure of an agreement or arrangement, if any, affected, in any reasonable likelihood, the judgment of the jury or the outcome of the trial. Cf. Pugh v. State, 528 P.2d 719 (Okl.Cr.App.1974).

We find no abuse of due process. State v. Flauaus, supra, 515 S.W.2d at 879.

The argument of the prosecutor complained of was not error. It was retaliatory to defense counsel’s argument. It was defense counsel who first used the term “deal.” The prosecutor’s argument did not clearly indicate that a “deal” had been made, but even if it had, the jury was aware of the information bearing upon the credibility of Wells.

We cannot conclude that the court erred in refusing to grant a mistrial and rule this point against appellant.

VII

Double Jeopardy

Lastly, appellant contends that the court erred in submitting instructions which authorized the jury to find the defendant guilty of both robbery and assault. He contends that such submissions subjected him to multiple convictions for a single offense and thus placed him twice in jeopardy. He argues that it “is clearly established from the testimony in this trial that the taking of money from Mr. Glenn was part and parcel of the assault upon his person . . . Hence, he contends that he could not be convicted of both robbery and assault.

It is true that a state cannot split a single crime and prosecute it in parts. As stated in State v. Richardson, 460 S.W.2d 537, 539 (Mo. banc 1970), quoting from In re Nielson, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118, “‘Where ⅜ * * a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense.’ ” In Richardson, our Supreme Court held that where the necessary act toward commission of attempted robbery was the identical assault upon which the charge of assault with intent to maim was based and the defendant had been convicted of robbery, a subsequent prosecution for assault was violative of the rule against double jeopardy.

In State v. Neal, 514 S.W.2d 544 (Mo. banc 1974), our Supreme Court held that where a robbery was the result of an assault committed upon an employee of a hardware store, it was error to submit the assault charge. “To thus split the single crime of robbery and prosecute it in Count I and a second time in Count III as an assault violated the rule against double jeopardy.” State v. Neal, supra, 514 S.W.2d 548. But such is not the situation here, and this ease is not governed by these principles in Richardson and Neal. Richardson also recognizes that:

“ ‘If there is but a single act of force proved as an essential element of the crime of robbery, then such act of force cannot be availed of as constituting the separate crime of assault, but the rule is otherwise where the existence of the distinct elements as realities is established, as where the force relied on to establish assault occurred after the robbery had been accomplished.’ 460 S.W.2d at 540 (emphasis added).

Various cases and examples are given, including Ex parte Chapman, 43 Cal.2d 885, 273 P.2d 817 (Cal. bank 1954) — where the accused made an assault as part of robbery and subsequently committed a second assault on victim.

We believe that the latter principle applies here. In this ease there were two distinct offenses. In this case the robbery was complete when the gun was “pulled” on Glenn, when he was ordered to open the cash register and the money was removed. This was sufficient to establish the elements of robbery under § 560.120. State v. Lawson, 501 S.W.2d 176 (Mo.App.1973). Thereafter, Glenn was taken out the side door of the office, through the bay area and to the back room, where he was forced to lie on the ground and was then beaten about the head three times. This constituted a separate assault, and was a separate offense.

The court did not err, therefore, in submitting Instructions No. 8 and 11 dealing with assault.

VIII

Conclusion

We have read the lengthy transcript, the briefs submitted by the parties and all of the authorities relied upon by the appellant. We are convinced that no prejudicial error occurred and thus conclude that the judgment of conviction should be affirmed.

The judgment is affirmed.

McMILLIAN and GUNN, JJ., concur.

      . At trial, there was considerable testimony concerning the truck. Glenn had stated it was light green or blue; the truck was red and white. Glenn indicated it had lights on top of the cab; several defense witnesses testified that CoEett’s truck with the name “L. Lewis” “Dittmer, Missouri” did not have lights, and always had a tool box behind the cab, which the photograph of the truck parked at Collett’s house failed to show. Glenn stated that he was color blind and could not easily distinguish colors. Where conflicts in the evidence exist, the matter is for the jury to determine. State v. Nolan, 499 S.W.2d 240, 250 (Mo.App.1973).

      . Although the truck had the words “L. Lewis” on it, Les “Papa” Lewis had no connection with the truck.

      . Rule 83.03 deals with transfer to the Supreme Court after opinion by the Court of Appeals.

      . “. . . The court may of its own motion, at any time, require the clerk of the trial court to send up a complete transcript or any portion thereof or any original documents or exhibits.”

      . In Kollmeyer, the circuit court set aside a default judgment in favor of plaintiff in the amount of $25,000, arising out of a personal injury action, and subsequently, after trial, rendered judgment in favor of plaintiff in the amount of $22,500. Plaintiff appealed the setting aside of the default judgment. The appellate court noted that the transcript was incomplete in that it did not include several pleadings and papers to which reference was made and which were needed to shed light on the setting aside of the default judgment. Therefore, pursuant to Rule 83.-03 (presently 84.03), the reviewing court directed the circuit clerk to send up the original file in its entirety and ordered that the same be made a part of the transcript on appeal.

      . In McDaniel, a question arose as to whether the appeal from a nunc pro tunc order entered in a declaratory judgment action was taken within the time prescribed by law. The transcript on appeal failed to show the date upon which the circuit court entered the nunc pro tunc order. The reviewing court of its own motion, pursuant to Rule 83.03 (presently 84.03), issued an order directing the circuit clerk to send up a certified copy of the record entry in the trial court showing the entry of the order nunc pro tunc, and the date thereof.

      . In Sanderson, the court of appeals became concerned with the nature of the action taken by the circuit court on an appeal from the findings and final award of the Industrial Commission in a workmen’s compensation action. The judgment entry of the dr-cuit court was not shown in the record before the appellate court. The court of appeals on its own motion ordered up a certi-fled copy of the judgment of the circuit court.

      . In appellant’s brief, he indicates that “[w]hen defense counsel, prior to trial, made his request for disclosure of evidence favorable to defendant, the prosecuting attorney should have been put on notice at the time to make inquiry.” This is not the same point urged at trial and in the motion for new trial. See State v. Stevens, 467 S.W.2d 10, 18 (Mo.1971), cert.den., 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546 (1971).

      . Napue v. People of the State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

       The felonious taking of property from another from his person or in his presence and against his will by violence to his person or by putting him in fear of some immediate injury to his person.