text:
    STATE of Missouri, Plaintiff-Respondent, v. Allen D. PRICE, Defendant-Appellant.
    No. 48330.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 18, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 22, 1985.
    Application to Transfer Denied Feb. 26, 1985.
    Retta-Rae Randall, Sp. Asst. Public Defender, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.
   GAERTNER, Judge.

Defendant was found guilty by a jury of robbery in the first degree, § 569.020, RSMo. 1978, and armed criminal action, § 571.015, RSMo. 1978. As a prior offender, the court sentenced defendant to ten years on the robbery charge and three years on the armed criminal action charge, to run consecutively. From this conviction and sentence, defendant appeals. We affirm.

In reviewing the evidence in the light most favorable to the state, the following facts were adduced at trial.

During the day on November 21, 1982, defendant, Allen Price and James Merrick borrowed a shotgun from Merriek’s brother-in-law. They went to Merrick’s home where defendant sawed off the shotgun barrel. At about 8:30 p.m. that evening, defendant and Merrick drove to a delicatessen at 3735 Connecticut in St. Louis. Either defendant or Merrick entered the deli-catessan and said to Mr. Hey, the owner, “This is a hold-up.” Mr. Hey gave the man the cash from the register; the man put it in his jacket and left. The man then went to a gold Trans Am, and told either defendant or Merrick to “Get out of here.”

About 20 minutes later, two police officers spotted the Trans Am at a gas station. It fit the description of a car that had been involved in a armed robbery. A chase ensued. The chase ended in Tower Grove Park where defendant and Merrick were placed under arrest. Later, the owner arrived at the scene and identified Merrick as the robber. He did not link defendant to the robbery.

On November 22, 1982, defendant made a statement to the police. His facts were the same as above, except he claimed to have entered the delicatessen and committed the robbery. Based on these facts, the jury found defendant guilty of robbery and armed criminal action.

Defendant contends Instruction No. 5, the verdict director for robbery in the first degree, should not have been submitted because it varies from the facts alleged in the information. The information charging the defendant stated “defendant acting with another,” committed the robbery. However, Instruction No. 5 submits that “defendant acted either alone, together with, or aided James Merrick,” in committing the robbery.

In order for a variance between the information and the verdict directing instruction to be fatal and require reversal, it must submit a new and distinct offense from that which defendant was charged. State v. Coleman, 660 S.W.2d 201, 218 (Mo.App.1983). Additionally, the defendant must be prejudiced by the variance and the variance must be material. State v. Martin, 633 S.W.2d 80, 82 (Mo.1982); State v. Macone, 593 S.W.2d 619, 621 (Mo.App.1980). In this case, defendant has not met his burden.

The information sufficiently notified defendant of the charge against him. From the facts, defendant’s actual role in the robbery was unclear. However, the courts have held whether a defendant was the principal participant or the aider, he was liable for robbery in the first degree as long as he made “an affirmative advancement of the criminal enterprise.” State v. Taylor, 624 S.W.2d 541, 542 (Mo.App.1981); State v. Haggard, 619 S.W.2d 44, 47 (Mo. banc 1981). Because the jury could find defendant guilty of robbery in the first degree, regardless of his status as principal or aider, the instruction did not charge defendant with a new and distinct offense to warrant reversal.

The variance between the information and the instruction was not prejudicial to defendant. Defendant was aware by the information the charge lodged against him. The additional language in Instruction No. 5 did not, as defendant contends, broaden his liability. As noted above, defendant could be found guilty of robbery without regard to his degree of participation. Therefore, although the language in the instruction differs from the information, it is not sufficient to require the setting aside of the jury verdict. Defendant’s point is denied.

Defendant next contends Instruction No. 5, MAI-CR2d 23.02 modified by MAI-CR2d 2.12, should not have been submitted because it was in violation of the “Notes on Use,” expanding defendant’s criminal liability. We disagree.

It is well-established deviations from MAI-CR2d instructions “shall constitute error, its prejudicial effect to be judicially determined.” Rule 28.02(e). However, MAI-CR2d 2.12, Notes on Use, Note 6 explicitly states that “any variation in the selection of alternatives in the paragraph following ‘then you are instructed that the offense of [name of offense] has occurred ... ’ shall not be deemed reversible error in the absence of prejudice.” (emphasis added). As indicated by the language of the “Notes on Use,” there is considerable leeway given in wording this particular instruction. In fact, note 6 observes there are numerous variations in the factual situations involving accessorial liability. It is reasonable to conclude there must be several ways to phrase the instruction to encompass the many scenarios. Thus, reviewing the record on appeal, we find defendant was not prejudiced by the submission of this instruction.

Defendant specifically challenges the addition of “acted either alone” to Instruction No. 5 because it increased the scope of his criminal liability. This is not the case. For instructions to be submitted they “must be supported by substantial evidence and the reasonable inferences to be drawn therefrom.” State v. Daugherty, 631 S.W.2d 637, 639 (Mo.1982). Additionally, the court can instruct the jury on alternative theories as long as each is supported by evidence. State v. Fleming, 577 S.W.2d 174, 176 (Mo.App.1979).

In the present case, there was a conflict in the evidence as to who entered the deli-catessan and committed the robbery. One alternative offered by the state was the defendant entered the store alone. This hypothesis was established through the statement of the defendant. Because there was evidence to support this proposition, the court did not err by inserting the additional phrase into Instruction No. 5.

In State v. Dinkins, 508 S.W.2d 1, 5 (Mo.App.1974), the court upheld giving an instruction which included “either alone or together with another” where there was no evidence that the defendant acted alone. The court stated that because “the defendant could have been found guilty in either event hypothesized” it was not error to include the phrase. Id. at 5. Here, there is evidence that supports the contention that defendant acted alone in one phase of the robbery. Therefore, the court did not err in submitting the instruction as modified by “acted either alone.” Defendant’s second point is denied.

Based on the foregoing, the judgment is affirmed.

PUDLOWSKI, P.J., and KAROHL, J., concur.


source: Caselaw Access Project

author: PUDLOWSKI, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Defendant-Respondent v. Renell BURSTON, Plaintiff-Appellant.
    No. 48419.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 18, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 22, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      Henry B. Robertson, St. Louis, for plaintiff-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, for defendant-respondent.
   PUDLOWSKI, Presiding Judge.

Appellant, Renell Burston, was convicted of burglary in the first degree, rape and robbery in the first degree. Appellant’s only point on appeal alleges insufficient evidence to support the charge of robbery in the first degree. We affirm.

A brief recitation of facts follows. On June 20, 1983, victim went to bed in her apartment in the City of St. Louis. Her apartment was secure and she was alone. Between 5:00 and 5:30 in the morning, victim was awakened by appellant who was standing at the side of her bed. He bore down on her with a butcher knife and told her that he was going to rape and kill her. Victim struggled with appellant and appellant dropped the knife. Victim kicked it under the bed. Appellant repeatedly hit victim in the face causing multiple lacerations and contusions.

Subsequently, appellant went through victim’s purse. He took some currency and food stamps. He then went to her dresser and took a radio, three watches and some coins. While appellant was going through the dresser, victim was able to take hold of a can of chemical spray which she kept under her pillow. She sprayed appellant in the face. Appellant fell in the living room whereupon victim slammed and locked the door behind him and called the police.

Appellant alleges that the evidence was insufficient to support a finding that the taking of the property was accomplished through the use of a dangerous instrument. Specifically, appellant claims he was not in possession of the knife when he stole the property and as such a conviction for robbery in the first degree cannot stand. This claim is without merit.

Section 569.020 RSMo 1978 defines robbery in the first degree as “forcibly steals property and in the course thereof he ... (4) [displays or threatens the use of what appears to be a deadly weapon or dangerous instrument.” The operative phrase in the definition is “in the course thereof.” The statute does not state that during the actual taking of property appellant must simultaneously display or threaten the use of what appears to be a deadly weapon or instrument. In the case at hand, the “course” of stealing encompassed the rape and beating of the victim. It was through these events that appellant prevented and overcame any resistance by the victim to the taking of her property.

While there is no case law construing the present statute, we do have interpretations from cases decided under the previous robbery statute, Section 560.120 RSMo 1969 (repealed). In interpreting that statute, our court ruled that the threatened force, violence or intimidation could precede the taking of the property. See State v. Beatty, 617 S.W.2d 87 (Mo.App.1981). We see no reason to change our ruling. At the time the incident in question began, appellant displayed and threatened the victim with a deadly weapon.

Judgment affirmed.

GAERTNER and KAROHL, JJ., concur.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Walter THOMAS, Appellant.
    No. 48561.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 18, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 22, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      Henry B. Robertson, Public Defender, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   ORDER

PER CURIAM.

Defendant, Walter Thomas, was convicted, after a jury trial, of burglary in the second degree and stealing. He was sentenced, as a persistent offender, to imprisonment for ten years on the burglary conviction and a consecutive five-year term on the stealing conviction. He now appeals. No jurisprudential purpose would be served by a written opinion. The judgment of the trial court is affirmed pursuant to Rule 30.25(b).


author: GAERTNER, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Tommy McLAURIN, Defendant-Appellant.
    No. 48651.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 18, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 22, 1985.
    Application to Transfer Denied Feb. 26, 1985.
    Henry B. Robertson, Asst. Public Defender, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.
   GAERTNER, Judge.

Tommy McLaurin appeals from a judgment entered on a jury verdict convicting him of burglary in the second degree. § 569.170, RSMo.1978. The trial court sentenced appellant as a persistent offender to a term of ten years imprisonment. § 558.-016, RSMo.1978 (1984 Cum.Supp.). The judgment is affirmed.

On early Sunday morning, July 24, 1983, two police officers observed two persons at T & T Pood and Liquor Store on Union Boulevard in the City of St. Louis. The store had a recessed entry way enclosed by a gate on the outside and a door on the inside. A small area, referred to during trial as a foyer, is between the gate and the door. The police officers saw one of the persons, appellant, in the foyer handing a pillowcase to the other person, who was outside the gate. Appellant and his accomplice attempted to flee, but the officers apprehended them. The plate glass in the door was broken. In the pillowcase were liquor and cigarettes identified as merchandise missing from the store.

Appellant’s sole point relied on is that the trial court erred in refusing appellant’s request for a continuance. Appellant requested the continuance on the morning of trial in order to attempt to secure the attendance of a witness who had been served with a subpoena the day before the trial. According to appellant’s offer of proof, the witness would have testified that she was walking with appellant and his accomplice along Union Boulevard past the liquor store when she noticed that the glass in the door had already been broken out and that she then departed from the scene.

A trial court’s decision regarding whether to grant a continuance will not be reversed on appeal absent a clear abuse of discretion. State v. Winston, 627 S.W.2d 915, 917 (Mo.App.1982).

“One of the issues for the court to consider in ruling on ... [a motion for a continuance to obtain the presence of an absent witness] is whether there is a reasonable probability that the personal presence of the witness will ever be obtained.” State v. Oliver, 572 S.W.2d 440, 445 [2-4] (Mo.banc 1978). An application for a continuance to secure the attendance of a witness must contain “facts showing reasonable grounds for belief that the attendance or testimony of such witness will be procured within a reasonable time.” Rule 24.-10(b).

Appellant has not shown reasonable grounds for a belief that the attendance of the witness would be procured within a reasonable time. Despite being served with a subpoena, the witness did not show up for trial. The investigator for appellant’s counsel was unable to locate the witness on the morning of trial. Appellant would not have been able to obtain the witness’s attendance through his family because his family did not even know the witness’s name. Finally, appellant’s written application states, “It is unknown when this witness would be available....”

Moreover, the proposed testimony of the witness did not refute appellant’s guilt. The fact that she observed the broken glass in the door and left the appellant and his co-defendant at the scene does not disprove their entry into the store and removal of the merchandise later found in their possession. Entry for an unlawful purpose, not breaking, is now the cornerstone of the crime of burglary, second degree. § 569.170, RSMo.1978. In view of the strong evidence of appellant’s guilt, it is not likely that the testimony of the missing witness would have accomplished a different result. Cf. State v. Lynch, 528 S.W.2d 454, 457 (Mo.App.1975).

Three continuances had already been granted to appellant. The trial court did not abuse its discretion in denying, on the morning of trial, a request for an indefinite continuance to obtain the attendance of the missing witness.

The judgment is affirmed.

PUDLOWSKI, P.J., and KAROHL, J., concur.


text:
    Phillip JAMISON, Appellant, v. STATE of Missouri, Respondent.
    No. 48847.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 18, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 22, 1985.
    Application to Transfer Denied Feb. 26, 1985.
    William J. Shaw, Public Defender, Clayton, for appellant.
    John Ashcroft, Atty. Gen., John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   ORDER

PER CURIAM.

Movant entered guilty pleas in St. Louis County Circuit Court to a charge of second degree murder in cause no. 453471 and a charge of first degree assault in cause no. 453472. He was sentenced to fifteen years on each charge, both to be served concurrently with another fifteen year sentence previously imposed for a robbery conviction. One 27.26 motion was made on both the murder and assault charges, and the trial court denied the motion without an evidentiary hearing. Movant appeals. The judgment is affirmed in accordance with Rule 84.16(b).


text:
    Dora Joan CHRISTIAN, Appellant, v. STATE of Missouri, Respondent.
    No. WD 35469.
    Missouri Court of Appeals, Western District.
    Dec. 18, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Jan. 29, 1985.
    Application to Transfer Denied Feb. 26, 1985.
    Robert G. Duncan, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Frank Rubin, Asst. Atty. Gen., Jefferson City, for respondent.
    Before PRITCHARD, P.J., and SHAN-GLER and BERREY, JJ.
   PER CURIAM.

Appeal from denial, without evidentiary hearing, of second Rule 27.26 motion to vacate guilty plea to second degree murder, and sentence of forty years imprisonment.

Affirmed. Rule 84.16(b).


author: PREWITT, Chief Judge.

text:
    Donald E. SMEAD and Susan C. Smead, Plaintiffs-Respondents, v. Lance Schuyler GRANGER, Defendant-Appellant.
    No. 13542.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 27, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 1985.
    Donald E. Woody, Monte P. Clithero, Taylor, Stafford & Woody, Springfield, for plaintiffs-respondents.
    Sandra L. Skinner, Springfield, for defendant-appellant.
   PREWITT, Chief Judge.

After a default judgment was taken against defendant he filed a motion to set it aside. The trial court refused to do so and defendant appealed. By filing his motion defendant preserved a right of appeal. See Vonsmith v. Vonsmith, 666 S.W.2d 424 (Mo. banc), retransferred, 666 S.W.2d 426 (Mo.App.1984).

Defendant has two points relied on. We first discuss his contention that the trial court lacked jurisdiction to render the judgment because the return of service of process was defective. The return recites that defendant was served in Allegheny County, Pennsylvania by a deputy sheriff of that county. Rule 54.20(b)(1) states:

Every officer to whom summons or other process shall be delivered for service outside the state shall make an affidavit before the clerk or judge of the court of which affiant is an officer stating the time, place and manner of such service. There shall be attached to the affidavit the certificate of such judge or clerk as to the official character of the affiant and to his authority to serve process in civil actions within the state or territory where such service was made.

The return was sworn to before a notary public and no certificate by a clerk or judge as to the deputy’s official character or authority was attached. Citing Industrial Personnel Corp. v. Corcoran, 643 S.W.2d 816 (Mo.App.1981), and English v. English, 592 S.W.2d 297 (Mo.App.1979), defendant contends that the trial court lacked jurisdiction over him because proof of service was deficient. Those cases so indicate. Plaintiffs agree that the return was defective. Their brief states they “do not contend that this return of service fully comports with the requirements of Missouri Supreme Court Rule 54.20(b)(1)”, but that the defects in the return were waived by defendant.

The record does not indicate and defendant does not contend that this question was presented to the trial judge. Defendant’s motion to vacate or set aside the judgment did not raise any issue as to service or the return. It stated “[tjhat plaintiffs’ Petition was served upon this defendant on August 15, 1983 in Imperial, Pennsylvania where defendant resides.” No mention of this contention was made at the hearing on defendant’s motion.

Relying principally on Sega Enterprises, Inc. v. Bengiminia, 589 S.W.2d 366 (Mo.App.1979), and Crouch v. Crouch, 641 S.W.2d 86 (Mo. banc 1982), plaintiffs contend that the defects were waived when service or the return were not questioned by defendant’s motion to set aside the judgment or otherwise properly raised in the trial court. Based upon the supreme court’s discussion of Bengiminia in Crouch, we agree that this contention was waived.

In Bengiminia, a default judgment was taken. Thereafter, defendant filed a petition for review. That petition was dismissed by the trial court. With leave of court, a late notice of appeal from the judgment was filed. On appeal the defendant contended that the trial court did not have personal jurisdiction over him because return of service was not proper. The court held that this contention was waived under Rule 55.27(g)(1)(B) when it was not raised by motion or included in a responsive pleading and because it was not asserted in the petition for review. That petition affirmatively stated that defendant was personally served and his counsel admitted the service in the hearing on it.

In discussing this decision in Crouch, the supreme court stated, 641 S.W.2d at 94:

In Bengiminia a default judgment was rendered against the defendant who, like appellant in the present case, failed to appear. The defendant contended on appeal that the trial court had no personal jurisdiction because the return of service was improper. He had admitted in his trial court petition for a review of the default judgment, however, that he had been personally served. The court of appeals held that the ‘defense was waived when it was not raised by motion or included in a responsive pleading.’ Bengiminia, 589 S.W.2d at 368. Its language is misleading in view of our holding today and in Weinstein, but its result is correct because the waiver resulted from conduct by the defendant wholly inconsistent with his assertion that the trial court was without personal jurisdiction.

Here, the defendant admitted service and did not question it or the return in the trial court, but asked for relief on other grounds. As stated in Crouch, defendant’s conduct was “wholly inconsistent with his assertion that the trial court was without personal jurisdiction.” Therefore, this contention has been waived.

In his other point defendant contends that the trial court erred in overruling his motion because he had exercised reasonable diligence in obtaining counsel and had a reasonable excuse for his default, that he had a meritorious defense, and plaintiffs would not be injured or suffer any hardship if the judgment was set aside. These are grounds generally stated as essential before a default judgment is set aside. Sullenger v. Cooke Sales & Serv. Co., 646 S.W.2d 85, 89 (Mo. banc 1983); Lester v. Dyer, 518 S.W.2d 213, 216 (Mo.App.1974).

To have a reasonable excuse for allowing a default judgment to occur the party must be free from negligence. Williams Energy Co. v. Tracy Truck Leasing, 562 S.W.2d 765, 767 (Mo.App.1978). A default judgment will not be disturbed on appeal unless the required showing is so clearly apparent that the refusal to set the judgment aside is arbitrary. Id.

We determine that defendant did not show a reasonable excuse for allowing the case to be in default and thus do not decide whether the defendant established his other contentions under this point.

After defendant was served in Pennsylvania on August 15, 1983, he contacted an attorney there. That attorney telephoned plaintiffs’ attorney, and plaintiffs’ attorney agreed to extend the time for pleading to September 30,1983. Thereafter, defendant called plaintiffs’ attorney and plaintiffs’ attorney agreed that defendant would have until October 7,1983, to plead. On October 4th defendant telephoned Jack Hoke, a Springfield attorney, and asked him to represent defendant in this case.

After looking at the trial court’s file, Hoke determined that there might be a conflict of interest if he represented defendant. On October 5th he telephoned defendant and informed him that he could not represent him. Hoke, the only witness at the hearing on defendant’s motion, said that he reminded defendant that he had to plead by October 7th. On October 7th attorney William McDonald telephoned Hoke. Hoke was out of his office and could not recall whether he returned the call and talked about this case to McDonald on October 7th or the 11th.

A default judgment was entered on October 11, 1983. On October 25, 1983, the law office of which McDonald is a partner filed a motion to set aside the judgment on behalf of defendant. An attorney, now deceased, from a different law firm represented defendant at the hearing on the motion.

Defendant did not appear at the hearing. No attempt was made to show why defendant waited from August 15th until October 4th to contact a Missouri attorney. This delay, absent an excusable reason for it, could be negligence, particularly where the contact is from another state. At the least, the lack of explanation for this delay indicates that defendant had no reasonable excuse for waiting 50 days, until it was 3 days before the pleading deadline as it was extended. The trial court found that defendant did not establish that he had a reasonable excuse for the default. This determination appears correct.

The judgment is affirmed.

HOGAN, P.J., and MAUS, J., concur.

CROW, J., recused.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Ricky R.R. SMITH, Defendant-Appellant. STATE of Missouri, Plaintiff-Respondent, v. Jollie R.A. SMITH, Defendant-Appellant.
    Nos. 13674, 13675.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 28, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 22, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Roy W. Brown, Bruce B. Brown, Brown & Brown, Kansas City, for defendants-appellants.
   PREWITT, Chief Judge.

Defendant Jollie R. A. Smith and his brother, defendant Ricky R. R. Smith, were convicted of stealing after taking an automobile owned by Jollie Smith from a garage where it had recently been repaired. The repair bill had not been paid. Both defendants were sentenced to 5 years’ imprisonment. Their jury trials were conducted together, and as their contentions here are the same, we consolidated their appeals.

Defendants’ first points contend that the evidence was insufficient to establish that they were guilty beyond a reasonable doubt because there was no showing that they appropriated the vehicle with “the purpose of withholding it from the owner in such a way that made recovery by the owner unlikely.”

Section 570.030.1, RSMo 1978 states:

“A person commits the crime of stealing if he appropriates property or services of another with the purpose to deprive him thereof, either without his consent or by means of deceit or coercion.”

The jury was instructed on the crime of stealing using the portion of the definition of “deprive” set forth in § 570.010(8)(c), RSMo 1978, meaning “To use or dispose of property in a manner that makes recovery of the property by the owner unlikely”. The instruction appeared to follow MAI-CR2d 24.02.1.

In determining if the evidence is sufficient to support the verdict, the evidence and all reasonable inferences must be considered in the light most favorable to the state and all evidence and inferences to the contrary disregarded. State v. Buffington, 588 S.W.2d 512, 514 (Mo.App.1979). Even if, as defendants contend, State v. Siraguso, 610 S.W.2d 338 (Mo.App.1980), correctly interprets Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), as calling for a more stringent review of criminal cases than Missouri appellate courts had given before Jackson, there was evidence to meet that standard here. The evidence was sufficient for a rational trier of fact to find defendants guilty beyond a reasonable doubt.

In late 1982 or early 1983, defendant Jollie Smith’s wife, apparently at his request, made arrangements with W. L. Johnson, who owns a garage in West Plains, to repair Jollie’s 1979 Renault automobile. Before April 22nd, except for an apparent minor adjustment to be made after the car was driven fifty miles, the repairs were completed. Johnson and Brent Short, a mechanic employed by Johnson, went to Jollie’s house in Ravenden, Arkansas to present him the repair bill of $941.36. Jollie was not there and his wife informed Johnson that she could not pay the bill. Johnson and Short returned to West Plains.

Later that day defendant Jollie Smith, defendant Ricky Smith, and their brother, Rowdy, went to Johnson’s garage in West Plains. When they arrived around 4:30 p.m. the Renault was not there. Short was apparently driving it to visit some relatives to put the additional mileage on it before the adjustments. Johnson testified that the Smiths said they came to pay for the car and get it. He said he agreed with them that Jollie could test-drive it, but he told them that the repair bill would have to be paid before they could have the car.

Johnson telephoned Short to bring the automobile back to the premises so Jollie could test-drive it. While waiting for Short, the Smiths went to a local restaurant to eat. When they returned, Short was there and the Renault was parked near the garage. While they were discussing the repairs, Jollie went outside to use the toilet. After he was gone 5 to 10 minutes Short went outside where lie found Jollie attempting to start the Renault. Jollie said he was going to test-drive it and Short said he was going to go along. Ricky Smith also got in the car. Short testified that Ricky then got out of the car saying he needed to get his “goodie box” and got a large “candy can” from the car in which the Smiths had been traveling.

When they left the garage Jollie Smith was driving. Short was in the front passenger’s seat and Ricky was in the back seat. They stopped at a gas station where Jollie bought five dollars worth of gasoline. Then they left West Plains heading toward Koshkonong. After they went a short distance Short objected to the speed that Jollie was driving and asked that they go back to town. Jollie replied that they were going to Koshkonong. Short testified that then he was poked in the side of his ribs by a gun barrel held by defendant Ricky Smith and was forced to get out of the car while it slowed, but did not stop.

Jollie testified that he and Short disagreed as to his manner of driving. Then he “could feel something in one of the wheels that didn’t seem right.” He pulled over and Short got out “like he was going to check the tires, I guess. And when he did it just come back to me that me and him had been arguing and I wasn’t going to turn around. So I just took off and left him standing there.” Defendants denied that they had a gun or that Short was forced out of the vehicle.

Short went to a nearby house where the Howell County sheriff’s office was called. The vehicle with defendants in it was stopped in Alton by a city policeman who had received a report from the county sheriff’s office. When defendants got out of the car, defendant Ricky Smith ran away. He turned himself into law enforcement officers three days later. Jollie testified that he drove to Alton because he wanted to test-drive the car “through the hills and over curvy roads and really give the car a good drive.” He said they intended to go back to the garage to pay for the car.

After Jollie was arrested a deputy testified that Jollie said that he took the vehicle and was not going to pay for the repairs because of the time it took to make them. There was no evidence that the parts could have been obtained faster, that the repairs should have been done sooner, that the repairs were improperly done, or that the charges for them were too high.

Defendants claim that as the parts and labor which Johnson claimed payment for were used on the vehicle and incorporated into it, and Jollie Smith owned it, neither defendant was guilty of stealing it.

Sections 570.030 and 570.010 do not appear to change the rule in effect before their enactment that one can be guilty of stealing property that he had legal title to. Although § 570.010(8) refers to “owner” and § 570.030 refers to “property or services of another”, there is no indication that they intended to change the decisions that ownership of property necessary to support a charge of larceny may be “either general or special” and “may be supported by proof of any legal interest or special property in the things stolen, although it may he less than an absolute title.” State v. Flowers, 311 Mo. 510, 278 S.W. 1040, 1043 (1925).

“It has long been established that ownership of stolen property may be charged either to the actual owner or the one rightfully in possession and a showing that the property was taken from one who merely had charge and control thereof is sufficient.” State v. McCoy, 647 S.W.2d 862, 864 (Mo.App.1983). Lawful custody and control of property is a sufficient attribute of ownership to support an averment and proof of ownership. Id.

“It is a trite saying that one cannot steal from himself, and that may be true, for the expression implies he is in possession at the time of the supposed crime, and asportation would be lacking. But it is generally conceded that one may steal his own property, which at the time is in the possession of some one else, as, for instance, a bailee, pledgee, and the like.” Cote v. Gillette, 186 S.W. 538, 540 (Mo.App.1916). This appears to be the general rule in other jurisdictions as well. See 50 Am.Jur.2d, Larceny, § 86, p. 259.

It was admitted by defendants at trial and the evidence established that Johnson had the right of possession of the car by virtue of a common-law artisan’s lien. See Poole v. McKeen, 654 S.W.2d 362, 364 (Mo.App.1983). Jollie Smith had no right to possession of the vehicle as against Johnson until the discharge of that lien. State ex rel. Rueseler Motor Co. v. Klaus, 281 S.W.2d 543, 546 (Mo.App.1955). By taking the car from Johnson’s possession Jollie Smith could be guilty of stealing. If Jollie Smith could be guilty, it necessarily follows that by helping him, Ricky Smith could also be guilty.

Defendants also contend that as Johnson knew where Jollie Smith lived, and as Johnson had an artisan’s lien, it is likely he could have recovered the car or collected the debt. That is no defense to the charge. The test is not whether the debt might have been paid or the vehicle recovered. As § 570.030 states, it is whether defendants had “the purpose to deprive” Johnson of the car as “deprive” is defined in § 570.010(8)(c). The evidence indicates such a purpose existed, whether or not it was successful.

Citing State v. Siraguso, supra, 610 S.W.2d at 341, defendants further assert that the circumstantial evidence here did not “exclude all reasonable hypotheses” that they were innocent. They contend that the evidence at the most showed that Jollie intended to take possession of the vehicle without first paying for the parts and labor, but did not establish that he never intended to pay the bill. Assuming that would be a defense, the jury could have found otherwise.

The state’s case was not, as defendants contend, based solely on circumstantial evidence. It presented evidence that Jollie Smith admitted that he took the vehicle and was not going to pay for its repairs because of the time it took to make them. Admissions against interest are direct evidence of guilt. State v. Sherrill, 657 S.W.2d 731, 738 (Mo.App.1983); State v. Williams, 600 S.W.2d 120, 122 (Mo.App.1980).

The jury could have found beyond a reasonable doubt that Jollie and Ricky went to the garage for the purpose of taking the vehicle without paying for the repairs and did so. Jollie’s statements as to his intent so indicate. Defendants’ first points are denied.

Defendants contend in their second points that the trial court erred by not submitting a “claim of right” instruction following MAI-CR2d 2.37.3(2). Defendants claim that the vehicle was taken under a “claim of right”, which the jury could have found precludes their being guilty of stealing. They assert that a “claim of right to take the Renault for a thorough test drive is sufficiently supported by the evidence.” They also contend that there “is no evidence indicating that Jollie did not believe he had a right to take the vehicle and then settle the debt.”

Section 570.070, RSMo 1978, provides that a person does not commit stealing under § 570.030, RSMo 1978, if he acted “in the honest belief that he had the right to do so”. That section puts the burden on defendant to inject the issue of claim of right and if it is not injected, no instruction on it need be given. State v. Hontz, 655 S.W.2d 590, 592 (Mo.App.1983).

“To warrant submission of the claim of right defense, there must be, apart from testimony of the defendant or principal as to his subjective belief, sufficient evidence to enable the court to infer that the relevant person honestly held that belief.” State v. Quisenberry, 639 S.W.2d 579, 584 (Mo. banc 1982).

The burden on the defendant to “inject the issue” of claim of right includes adducing evidence of facts from which in the context of the entire case, the honesty of his belief can reasonably be inferred. Id. at n. 15. A claim of right is a special negative defense and inherent in its concept is that the act charged occurred, but by reason of the defense, the act did not possess the qualities of criminality. Id. 639 S.W.2d at 583 & n. 8.

The naked assertion of an honest belief in a legal right, unsupported by any evidence of facts or circumstances from which such a belief might reasonably be inferred, is insufficient to raise the issue. State v. Hontz, supra, 655 S.W.2d at 592. See also State v. Sloan, 664 S.W.2d 41, 43 (Mo.App.1984).

Defendants contend that they never intended to keep the vehicle but were going to return it, apparently acknowledging that they had no right to take it until the repairs were paid for. Their evidence was that it was being taken for a test-drive. There was no dispute that Jollie had the right to take it for a test-drive with Short along. The question for the jury was whether defendants intended to return. Whether they had a purpose to deprive Johnson of it was sufficiently presented to the jury in the submission instructions. Cf. State v. Stiers, 610 S.W.2d 83 (Mo.App.1980).

Defendants offered no evidence that the vehicle was taken beyond the consent given. Their claim was that they were still test-driving it with permission. Submitting as a defense that they did not intend to return the car in the honest belief that Jollie had the right to do so was inconsistent with their evidence. As such a claim of right was inconsistent with their evidence, they were not entitled to an instruction upon it. See State v. Cascone, 648 S.W.2d 190, 191 (Mo.App.1983). Obviously, if defendants intended to return the vehicle, they could not claim they were keeping it under a claim of right. Defendants’ second points are denied.

The judgments are affirmed.

HOGAN, P.J., and MAUS and CROW, JJ., concur.


author: KAROHL, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Earsel Larry JOHNSON, Defendant-Appellant.
    No. 48249.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Dec. 31, 1984.

      Donald J. Hager, Public Defender, Farm-ington, for defendant-appellant.
    John Ashcroft, Atty. Gen., John Munson Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   KAROHL, Judge.

Defendant appeals conviction in a jury-tried case of burglary in the second degree in violation of § 569.170, RSMo.1978. He was sentenced as a prior offender to serve a term of fifteen years.

The issues on appeal are defined by a pro se motion for new trial together with a motion for new trial filed by counsel on defendant’s behalf. The trial court overruled both motions. Appellant’s brief on appeal refers to seventeen points relied on, four of which are argued. The points not argued were included in the brief at defendant-appellant’s request. All of the points relied on contend appellant is entitled to a new trial. They are of a technical nature and do not assert that the state failed to make a submissible case.

The evidence supports a finding that appellant, together with Larry Irby, Susan Jones and Allana Berenski Kelly burglarized Plummer’s Gamble Hardware Store in Farmington, Missouri on February 27, 1983. Appliances, watches, tools and other merchandise were removed from the store in the middle of the night. The burglary was accomplished by breaking into the store through a window, removing the merchandise and transporting it in a van occupied by the four participants to the home of Jones and appellant. The next day Ms. Kelly and appellant made arrangements to sell some of the stolen merchandise.

Several weeks later Ms. Kelly was arrested for an unrelated forgery charge and while on bond on that charge she gave a statement to the police describing the burglary. Relying on her statement the police obtained a search warrant for the residence in which appellant and Ms. Jones lived. The police went to the home, identified themselves and Ms. Jones invited them to search while appellant was asleep in a bedroom. With the permission of Ms. Jones they removed a number of items which were identified by the store owner at trial as having been taken in the burglary.

We first dispose of the pro se contentions of error. Our study of the legal file and transcript indicates that the amended information on which the case was tried adequately informed the defendant of the charge; that all exhibits which were admitted without objection were properly admitted; that there was evidence from which the court could and did find defendant was a prior offender; that the statutory provisions for such findings are constitutional; and, there was no plain error in the pretrial proceedings relating to the prosecution of this case. These points are denied. Rule 84.14.

Defendant also argues that the search of the home was invalid because there was no valid search warrant. However one was not needed because the home owner gave her permission to search the home. State v. DuBose, 617 S.W.2d 509, 513 (Mo.App.1981). There was no plain error in failing to declare a mistrial when the prosecutor stated during closing argument that there was no plea bargaining in that county. The judge admonished the jury to disregard the statement. State v. Brueckner, 617 S.W.2d 405, 410 (Mo.App.1981). Defendant claims his motion to dismiss based on the speedy trial act should have been granted because his trial was held more than 180 days after arraignment. However 66 days are not to be counted because that was the time during which the pretrial motions were being decided. § 545.780(3)(1)(c), RSMo.Supp.1984. The trial was timely. State v. Ratliff, 633 S.W.2d 267, 270 (Mo.App.1982).

The remaining claim of error relates to an exhibit which was admitted over objection that it constituted hearsay and violated appellant’s constitutional right to confront witnesses. The exhibit in question was the voluntary written statement Ms. Kelly gave to the police. The statement was identified by Ms. Kelly during her testimony and received as state’s Exhibit 22 during her redirect examination.

Cross-examination of Ms. Kelly was directed to an attack on her credibility. Defendant’s attorney attempted to prove that Ms. Kelly fabricated her testimony to facilitate a plea bargain between herself and the prosecuting attorney’s office on the forgery charges. During cross-examination, the defense attorney questioned Ms. Kelly about the circumstances surrounding her testimony, inferring that the prosecutor’s office had offered her probation in a pending forgery charge on the condition that she testify against the defendant. He also implied that her testimony was false and recently fabricated in order to meet the terms of the plea bargain. Ms. Kelly acknowledged that a plea bargain was made with respect to the forgery charge, but denied making the bargain until after she had informed police of the burglary.

On redirect, the state offered Exhibit 22 to permit the jury to determine whether Ms. Kelly had made a statement to the police prior to her initial contact with the prosecutor’s office and before a plea bargain was considered. The statement was consistent with her in-court testimony and indicated that the testimony was not recently fabricated.

We find no error in admitting the prior consistent statement for the purpose of rehabilitating the witness and rebutting the inference of recent fabrication.

The rationale of the hearsay rule is that when a statement is offered as evidence of the truth of the facts asserted in it, the credit of the asserter becomes the basis of the inference, and therefore the assertion can be received only when made upon the witness stand, subject to cross-examination. If, however, an extrajudicial statement is offered without reference to the truth of the matter asserted, the hearsay rule does not apply.

State v. Henderson, 666 S.W.2d 882, 887 (Mo.App.1984). Ms. Kelly’s statement contained in Exhibit 22 was extrajudicial. However, she was an in-court witness and was subject to cross-examination on both her testimony offered in court and with regard to the exhibit. The exhibit was not offered until after defendant raised the issue of recent fabrication. As it was consistent with the in-court testimony it offered no new evidence of defendant’s guilt which was not subject to the test of cross-examination. In addition, the exhibit was offered not for the truth of the statements made but to rebut an inference of recent fabrication raised by the defendant’s cross-examination.

In the recent case of State v. Henderson, 666 S.W.2d 882 (Mo.App.1984) the court found no prejudice in permitting a witness to give testimony of a prior consistent statement of another witness in order to rebut an inference of recent fabrication raised by the defendant’s cross-examination of the first witness. The Henderson court cited the following Missouri cases on the admissibility of a statement offered in rebuttal to a charge of recent fabrication: State v. Richardson, 349 Mo. 1103, 163 S.W.2d 956 (1942); State v. Higgs, 259 S.W. 454 (Mo.1924); Wills v. Sullivan, 211 Mo.App. 318, 242 S.W. 180 (1922); and State v. Taylor, 134 Mo. 109, 35 S.W. 92 (1896). In the most pertinent, State v. Higgs, the testimony of an identification witness was supported by a second state’s witness. On cross-examination, the identification witness acknowledged that he had previously said that he did not know the robber. The supporting state witness was allowed to testify over a hearsay objection that the identification witness had identified the robber by name shortly after the incident. The supporting witness’ testimony was held admissible to rebut a charge of “recent fabrication.” 259 S.W. at 457.

Our examination of state’s Exhibit 22 indicates that it is entirely consistent with the direct testimony of Ms. Kelly. It added nothing to the evidence of the appellant’s participation in the crime charged. Because the declarant was a witness subject to cross-examination the rationale of the hearsay rule was not violated and its admission was not prejudicial to appellant. The admission of the statement as an exhibit may have rehabilitated the credibility of Ms. Kelly but it did not offer new evidence in the form of hearsay which was not subject to cross-examination. Accordingly the exhibit was properly admitted for the purpose offered.

For the reasons given we find no error. We affirm.

REINHARD, C.J., and DOWD, J., concur.

      . The exchange was as follows:
      Q- Now, there was a plea bargain between your lawyer and the prosecutor’s office concerning the forgery case?
      A- Yes, sir.
      Q- The bargain was that if you would testify against Larry Johnson, you would get probation in the forgery?
      A- No, sir. It was that if I would testify and tell the truth about what would happen, they would try to help me get probation.
      Q- You got probation.
      A- Yes.

      Q- You're telling us that you don’t know if they are going to charge you with this burglary?
      A- I’m really not sure ...
      Q- It sort of depends on how you do as a witness, doesn't it?


author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Earsel Larry JOHNSON, Defendant-Appellant.
    No. 48252.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Jan. 15, 1985.
    Donald J. Hager, Public Defender, Farm-ington, for defendant-appellant.

      John D. Ashcroft, Atty. Gen., John J. Oldenburg, Jr., Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   DOWD, Judge.

Defendant-appellant, E. Larry Johnson, was found guilty by a jury of second degree burglary under § 569.170, RSMo 1978. The defendant appeals his sentence as a persistent offender to a term of fifteen years imprisonment.

As the defendant does not challenge the sufficiency of the evidence, we shall set forth only those facts necessary to the disposition of this appeal. A tavern in Farmington, Missouri was burglarized and a number of items stolen including a jukebox, a cigarette machine, and money. The stolen items were traced to the possession of the defendant.

During final argument the prosecutor stated the state had to prove its case beyond a reasonable doubt but not beyond a shadow of a doubt, or not beyond any doubt at all. The objection by the defendant’s attorney to this argument was overruled. Initially, the defendant contends that the trial court erred in overruling his objection to the prosecutor’s remarks during closing argument concerning the term “reasonable doubt.” For support defendant relies on State v. Williams, 659 S.W.2d 778 (Mo. banc 1983). However, our research reveals that State v. Sincup, 674 S.W.2d 689 (Mo.App.1984) is factually more analoguous to the case at bar, and thus, is dispositive of this contention. In Sincup, the prosecutor stated his conception of the term in the negative: “not ... beyond a shadow of a doubt,” and “not have to prove my case beyond any doubt at all.” While this court considers these statements improper, they do not constitute prejudicial error as they are not legally incorrect. Id. at 690 citing State v. Ball, 622 S.W.2d 285, 288 (Mo.App.1981). Point denied.

Secondly, the defendant contends that the trial court erred by instructing the jury on the crime of “burglary” without defining the object crime of “stealing.” For support, defendant simply cites MAI-CR2d 23.52, the instruction for second degree burglary. In response, we direct defendant’s attention to Note 8 of MAI-CR2d 33.00: Definitions which states in part “[t]he Notes on Use under MAI-CR forms approved or reapproved after May 2, 1978, give complete and exclusive directions as to all terms, words and phrases which either must or may be defined.” See State v. Jamerson, 643 S.W.2d 888 (Mo.App.1982). Turning to the Notes on Use under MAI-CR2d 23.52, this court finds that the term “stealing” is not among the terms that must or may be defined. Point denied.

Thirdly, the defendant claims that his right to a speedy trial pursuant to § 545.780, RSMo 1978 has been violated because more than 180 days have elapsed between his arraignment and his trial. The defendant was arraigned on April 22, 1983 and was tried on January 3, 1984, a period exceeding the statutory limit by approximately 76 days. However, the record reveals numerous pre-trial motions and change of venue. The defendant should have consulted State v. Goddard, 649 S.W.2d 882 (Mo. banc 1983) before raising this point. Had the defendant not raised these motions, his trial would have fallen within the statutory time period. Sections 545.780.3(l)(c, d) RSMo Supp.1984 exclude these periods of delay when computing the 180 days. “While defendant has a legal right to assert such matters, he is in no position to complain of a delay occasioned by the conscientious processing and deciding of such motions by the trial court.” Id. at 890 citing State v. Dean, 637 S.W.2d 409, 411 (Mo.App.1982). Point denied.

Lastly, defendant raises twenty-five additional points on appeal proposed by defendant as pro se points. No authorities are cited and no arguments are put forward under these points. The brief states that counsel for the defendant disassociates himself from these points but raises them as required by State v. Zeitvogel, 649 S.W.2d 945 (Mo.App.1983). However, in State v. Pugh, 600 S.W.2d 114, 116 (Mo.App.1980) the Court of Appeals in the Southern District recognizes that although careful attention must be given each assignment of error, the constitution of this state as implemented by Rule 30.25(a) does not mandate a discussion on meritless points on appeal. See also State v. Trimble, 654 S.W.2d 245, 259-60 (Mo.App.1983). We agree with the Southern District. Hence, after considering all the defendant’s additional pro se points, we find them wholly without merit, and thus, discussing any of these points would not add to the general body of the law. Points denied.

Affirmed.

REINHARD, C.J., and KAROHL, J„ concur.


author: MAUS, Judge.

text:
    John C. DAVID, Plaintiff-Respondent, v. Randy SHIPPY, Defendant-Appellant.
    No. 13786.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 7, 1985.

      James R. Spradling, Esterly, Spradling & Checkett, Carthage, for defendant-appellant.
    Ron Mitchell, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for plaintiff-respondent.
   MAUS, Judge.

The plaintiff had judgment in the amount of $1,485.15 against the defendant for radio commercials advertising a corporate business. The defendant was an officer and shareholder of the corporation. The defendant’s sole point is that the evidence does not establish that in arranging for the commercials he acted for an undisclosed principal or any other basis for his personal liability.

No detailed findings of fact or conclusions of law were requested or made in this court tried case. Rule 73.01(2)(a). The judgment is to be affirmed if it properly could have been reached on any reasonable theory. Worlledge v. City of Greenwood, 627 S.W.2d 328 (Mo.App.1982). All fact issues are to be considered as having been found in accordance with the result reached. Rule 73.01(b). Wingate v. Griffin, 610 S.W.2d 417 (Mo.App.1980). So considered, the evidence established the following facts.

Captain W.T. Walkers, Inc., was incorporated on January 6, 1983. Its shares were owned one-half by the defendant and one-half by Tom Schroeder. The defendant was the president and chief executive officer of the corporation. The corporation operated a restaurant and bar under the name Captain W.T. Walkers.

Before the business opened, the defendant contacted the sales representative of the plaintiffs assignor radio stations to arrange for commercials. In response to an inquiry, the defendant told the sales representative the business was owned by the defendant and Schroeder. The defendant referred to Schroeder as his partner. The defendant did not tell the sales representative that Captain W.T. Walkers was a corporation or that the business was owned by a corporation. The plaintiff’s assignor had no such knowledge.

Contracts for the commercials were executed upon forms prepared by the assignor radio stations. In general, the body of each form as completed provided for an agreement between “Captain W.T. Walkers” and the radio station for commercials for “W.T. Walkers.”

The bottom of the forms provided for execution by the advertiser by the affixation of a name on the first line and a signature on the line below. At the beginning of the bottom line was the printed word “By.” Typically, the contracts were executed “Capt. W.T. Walkers By Randy Shippy.” On two forms, no name was inserted in the top line. They were apparently executed by a sales representative writing “Per Randy Shippy” on the bottom line. One form did not purport to be executed on behalf of the advertiser. The judgment of the trial court did not include the commercials covered by the latter three forms. The plaintiff makes no complaint on the basis of these omissions. On no form did the name of the advertiser include “Inc.” or any other word of similar connotation. No signature of Randy Shippy was accompanied by any designation such as “President” or any other title.

The principles governing the liability of one who acts for another applicable to the defendant’s appeal have been succinctly stated.

It is a general rule that where one who is in fact the agent for another makes a contract with the third person without disclosing the fact of agency, or if he discloses such fact without disclosing the identity of his principal, he will be individually bound by the contract and the third party may hold the agent or the undisclosed principal at his election.

Hartwig-Dischinger R. Co. v. Unemployment Comp. Com’n, 350 Mo. 690, 168 S.W.2d 78, 81 (banc 1943). Also see Empire Petro., Inc. v. D.F. & Assoc., Inc., 538 F.Supp. 615 (E.D.Mo.1982); O’Fallon Lbr. & Supply Co., Inc. v. Benear, 589 S.W.2d 625 (Mo.App.1979). These maxims are expressed in Restatement (Second) of Agency §§ 320, 321 and 322 (1958).

To be relieved from personal liability, it is not enough for the agent to disclose or for the third party to know the agent is acting for another. A legal encyclopedia states:

It is not the third person’s duty to seek out the identity of the principal; rather, the duty to disclose the identity of the principal is on the agent. The disclosure of an agency is not complete for the purpose of relieving the agent from personal liability unless it embraces the name of the principal; without that, the party dealing with the agent may understand that he intended to pledge his personal liability and responsibility in support of the contract and for its performance.

3 Am.Jur.2d Agency § 320 (1962). Also see A.A. Electric Machinery Co. v. Block, 193 S.W.2d 631 (Mo.App.1946).

“The other party has notice of the existence or identity of the principal if he knows, has reason to know, or should know of it, or has been given a notification of the fact.” Restatement (Second) of Agency § 4 comment a (1958). Lubbock Feed Lots, Inc. v. Iowa Beef Processors, 630 F.2d 250 (5th Cir.1980). “It is, therefore, not enough that the other party has the means of ascertaining the name of the principal; the agent must either bring to him actual knowledge, or, what is the same thing, that which to a reasonable man is equivalent to knowledge or the agent will be bound.” Stevens v. Graf, 358 Mich. 122, 99 N.W.2d 356, 359 (banc 1959). The defendant’s obligation of disclosure was not, as he contends, discharged by the fact of incorporation. Nor was it discharged because he did not expressly state that Captain W.T. Walkers was not a corporation. That duty was not discharged because federal, state and city licenses were issued in the name of the corporation. In this case, the decisive question is whether or not the manner of the completion and execution of the contracts amounted to a disclosure of the corporate principal to a reasonable person.

The execution of contracts in a corporate name that includes “Inc.” or a word of similar import obviously can be a disclosure of a corporate principal. Stern v. Lieberman, 307 Mass. 77, 29 N.E.2d 839 (1940). However, the execution of a contract in a trade name is not necessarily a sufficient disclosure of an individual or corporate principal conducting a business in that name. Annot., 150 A.L.R. 1303 (1944); Fletcher Emerson Management Co. v. Davis, 134 Ga.App. 699, 215 S.E.2d 725 (1975). This is true even though the trade name is similar to a corporate name. Como v. Rhines, 645 P.2d 948 (Mont.1982). On the other hand, when a distinct trade name was used, it has been held “[i]t is equally apparent, from the face of the contract, that Wiemann signed the agreement in his capacity as president of the corporate entity whatever its precise name, and not in his individual capacity, for as appears he signed as 'Pres.’ and ‘For the Corporation.’ ” Wired Music, Inc. v. Wiemann, 468 S.W.2d 668, 670 (Mo.App.1971). But, it is not necessarily a sufficient disclosure to merely add the designation “Pres.” to the signature of the agent. Receivables Finance Corporation v. Hamilton, 408 S.W.2d 44 (Mo.1966).

The recognized rules are illustrated by their application in decisions holding that the execution of a contract in a trade name was not a sufficient disclosure of a corporate principal. For example, see the following cases involving the conduct of a business in a trade name by a corporation: Northern-Aire Lodge and Country Club operated by Northern-Aire Development Company, Myers-Leiber Sign Co. v. Weirich, 2 Ariz.App. 534, 410 P.2d 491 (1966); Tally-Ho East Motor Hotel operated by W K D & C, Inc., Carter v. Walton, 469 S.W.2d 462 (Tex.Civ.App.1971); Sound West operated by Sound West, Inc., Como v. Rhines, supra; Magic Moment Restaurant conducted by Seascape Restaurants, Inc., Van D. Costas, Inc. v. Rosenberg, 432 So.2d 656 (Fla.App.1983); The Clubhouse operated by Dale F. Everett Company, Inc., James G. Smith & Associates v. Everett, 1 Ohio App.3d 118, 439 N.E.2d 932 (1981); Grinold Auto Parts, Inc. operated by R.W. Grinold Realty Company, Inc., New England Whalers Hockey Club v. Nair, 1 Conn.App. 680, 474 A.2d 810 (1984).

In Lange v. Baker, 377 S.W.2d 5 (Mo.App.1964), Trailback Plantation, Inc., owned and operated a business in the name of Trailback Plantation. The evidence disclosed the corporate agent personally guaranteed payment for medical services to be rendered to employees of the corporation. Further, it was observed, “[t]hus, the instant case falls within the firmly-established doctrine that one who acts as agent for another in making a contract is liable individually if, at the time of making such contract, he fails to disclose his agency and the identity of his principal.” Lange v. Baker, supra, at 9. In Fairbanks v. Chambers, 665 S.W.2d 33 (Mo.App.1984), partners had done business in the name of Chambers Feed and Farm Supply. Thereafter, the business was incorporated but continued to use the same name. On appeal, it was said the partners could be found liable because of their failure to disclose their principal as Chambers Feed and Farm Supply, Inc. (Emphasis added). There was evidence from which the court could have found the defendant did not fully disclose the identity of Captain W.T. Walkers, Inc. The judgment is affirmed.

HOGAN, P.J., PREWITT, C.J., and CROW, J., concur.


author: JEAN C. HAMILTON, Special Judge.

text:
    Evelyn FLEXTER, Plaintiff-Respondent, v. Leo FLEXTER, Defendant-Appellant.
    Nos. 47706, 47809.
    Missouri Court of Appeals, Eastern District, Division Five.
    Jan. 8, 1985.

      Walter J. Kramer, St. Louis, for defendant-appellant.
    Hardy C. Menees, Clayton, for plaintiff-respondent.
   JEAN C. HAMILTON, Special Judge.

Leo Flexter appeals the orders of the Circuit Court, St. Louis County, in two cases, consolidated on appeal, involving the registration of foreign judgments. For the reasons set forth below, we affirm the trial court’s orders in each case.

On November 7, 1980, the District Court of Sedgewick County, Kansas, entered a default judgment entitled “Journal Entry and Decree of Divorce” in the case of Leo Flexter, Plaintiff, and Evelyn Flexter, Defendant, Case No. 80D3240. On March 16, 1982, Appellant, Leo Flexter filed Cause No. 470189, a Petition for Registration of a Foreign Judgment, in St. Louis County Circuit Court. Respondent Evelyn M. Flexter was personally served with the petition on April 15, 1982. After she failed to appear or to plead, the Kansas judgment of November 7, 1980, was registered in Missouri on June 9, 1982. Notice of the registration of this judgment was sent to Respondent on August 4, 1982.

On December 20,1982, the District Court of Sedgewick County, Kansas, granted Respondent Evelyn Flexter a new trial in Case No. 80D3240 on the issues of property division and support and, on April 7, 1983, entered its “Journal Entry of Judgment” on those issues. On May 25, 1983, Respondent filed Cause No. 490656 in St. Louis County Circuit Court, a Petition for Registration of a Foreign Judgment, by which she sought to register the Kansas judgment of April 7, 1983, in Missouri. Appellant answered this Petition, asserting as affirmative defenses that the Kansas Court lacked jurisdiction over him to enter the judgment of April 7, 1983, and that the latter judgment was in conflict with the Kansas judgment of November 7, 1980, previously registered in St. Louis County on June 9, 1982 (Cause No. 470189).

On June 13, 1983, in Cause No. 470189, Respondent filed a Motion to Set Aside and Expunge Judgment on the ground, inter alia, that the Kansas Court had now set aside the default divorce order entered in Kansas in November, 1980, which was the foreign judgment registered in Missouri on June 9, 1982. The motion was heard and submitted on July 8,1983. By order of the trial court on July 8, 1983, Appellant was given an opportunity to file a responsive memorandum on or before July 25, 1983, but none is reflected in the file.

On September 8, 1983, the trial court held a hearing in Cause No. 490656, with attorneys for both parties present. The court denied Appellant Leo Flexter’s request for continuance of the hearing. It proceeded to admit evidence and to hear arguments of counsel regarding the Petition for Registration of a Foreign Judgment in Cause No. 490656. It also heard comments of counsel concerning the Respondent’s Motion to Set Aside and Expunge Judgment in Cause No. 470189. The trial judge, thereafter, sustained Respondent’s Motion to Set Aside and Expunge Judgment in Cause No. 470189 on August 17, 1983, and ordered registration of the Kansas judgment of April 7,1983, in Cause No. 490656 on September 16, 1983. These appeals followed.

Appellant contends (1) that the trial court improperly registered the Kansas judgment of April 7, 1983, because it failed to determine in an evidentiary proceeding whether the Kansas Court had jurisdiction to enter such a judgment; (2) that the judgment of April 7, 1983, was in conflict with the earlier Kansas judgment dated November 7, 1980, and, therefore, not entitled to full faith and credit in Missouri courts; and (3) that the trial court erred in sustaining the Motion to Set Aside and Expunge Judgment in Cause No. 470189 because the pleadings were insufficient, proof was lacking and the Respondent, having been in default when the judgment of registration was entered, is barred from now raising her defenses to the registration.

The record fails to support Appellant’s first contention. The hearing of September 8,1983, was an evidentiary hearing, having been timely set on a “testimony docket.” The trial court gave both parties an opportunity to present evidence. Without objection by the Appellant, Respondent offered, and the court received into evidence, an authenticated copy of the Kansas judgment of April 7, 1983. Appellant offered no evidence, but, for the first time, orally requested a continuance which the court denied.

Appellant does not contend, nor does the record reflect, that the court’s denial of a continuance was improper. See Chapman v. St. Louis County Bank, 649 S.W.2d 920, 922 (Mo.App.1983). At the close of the hearing, the sole evidence before the court was the Kansas judgment of April 7, 1983. By the terms of that judgment, the Kansas court found that it did have jurisdiction over Appellant, Leo Flex-ter, in order to determine “all issues pertinent to a divorce other than the dissolution of the marital bond between the parties, since this Court is compelled to correct any wrongs that may have occurred by the previous default divorce order that has now been set aside.” The introduction into evidence of that judgment gave rise to a presumption of its present validity because

[a] judgment rendered by a court of general jurisdiction of a sister state is presumed, absent any showing to the contrary, to be a judgment wherein the court not only had jurisdiction over both the parties and over the subject matter, but also that the court followed its laws and entered a valid judgment in accordance with the issues made in the case.

Corning Truck and Radiator Service v. Inc., 542 S.W.2d 520, 524 (Mo.App.1976). Having failed to produce evidence to overcome the presumption of validity which must be accorded the Kansas judgment of April 7, 1983, Appellant has failed to demonstrate error by the trial court. His first point is, therefore, denied.

In points two and three, Appellant claims error by the trial court in setting aside the Missouri judgment of June 9, 1982, which registered the Kansas divorce judgment of November 7, 1980. We reject this claim.

The purpose of the Uniform Enforcement of Foreign Judgments Law (hereinafter, Uniform Act), § 511.760, RSMo (1978), is “to afford judgment creditors an alternative and summary method of enforcing judgments of foreign forums which were entitled to full faith and credit under the Federal Constitution.” Corning Truck and Radiator Service v. J.W.M., Inc., 542 S.W.2d at 525. The nature of this law is derivative. It operates only upon extant foreign judgments entitled to full faith and credit by the registering state. The registering state can give the foreign judgment no greater effect than it would receive from courts in its rendering state. Winget v. Woods, 294 S.W.2d 43, 46 (Mo.App.1956). When, in December, 1982, the Kansas court set aside its default divorce order of November 7,1980, on the issues of property division and support, that judgment with respect to those two issues was no longer entitled to full faith and credit by Missouri. The Kansas judgment as to those issues became a nullity in Kansas and therefore, could be afforded no greater force in Missouri. The subsequent rulings on April 7, 1983, by the Kansas court on property division and support were substitute rulings, or, in the words of the Kansas judgment of April 7, 1983, “proper rulings that initially would have been made had full and complete information been presented to the Court at the time of the default divorce hearing.” At no time were the two Kansas judgments in conflict.

Respondent's Motion to Set Aside and Expunge Judgment was a permissible procedure to invoke the equity jurisdiction of the Missouri court to set aside, on the basis of material mistake of fact, a final Missouri judgment that registered a foreign divorce decree. See S_ v. S_, 490 S.W.2d 344, 349-50 (Mo.App.1973). Respondent's motion appended a duly authenticated copy of the Kansas court’s judgment of April 7, 1983, which demonstrated that “full and complete information” had not been presented to the court at the time of the default divorce hearing. As a result of this mistake of material fact, the Kansas court set aside its default divorce order of November 7, 1980, as to property and support, litigated those issues, and entered a judgment on them on April 7, 1983. Appellant, although afforded an opportunity by the trial court to respond to Respondent’s Motion to Set Aside or Expunge Judgment, failed to do so. Respondent’s Motion and the authenticated Kansas order of April 7, 1983, stand unrefuted in the record and provide substantial evidence to support the trial court’s action setting aside the judgment.

The orders of the trial court are affirmed.

CRANDALL, P.J., and CHANNING D. BLAEUER, Special Judge, concur.


author: SIMON, Presiding Judge.

text:
    In re the ESTATE OF Norine V. CANTONIA, Deceased, Harry O. Pirkey, Administrator, Plaintiff/Appellant, v. Charles D. SINDEL, Guardian of the Estate of George Edward Heitmeier, Defendant/Respondent.
    No. 47892.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 8, 1985.

      Bernard J. Cuddihee, St. Louis, for plaintiff/appellant.
    Charles D. Sindel, Clayton, for defendant/respondent.
   SIMON, Presiding Judge.

This is an appeal from a judgment of the Circuit Court of the City of St. Louis, Probate Division on a petition to discover assets. The probate court awarded proceeds from redeemed U.S. Savings Bonds, which had been registered in co-ownership form, to the surviving co-owners equal to their ownership in the bonds prior to redemption.

On appeal, Harry 0. Pirkey (Pirkey), administrator of Norine V. Cantonia’s (No-rme) estate, raises the following points: (1) the trial court improperly applied the doctrine of equitable conversion; and (2) the trial court erred in failing to award all of the proceeds from the bonds to Norine’s estate.

A cross appeal was filed by Charles D. Sindel (Sindel) as guardian of George Heit-meier’s (George) estate in the event this court finds the Probate Court erred as contended by Pirkey on appeal. Sindel’s sole point in the cross appeal is that the trial court erred in finding that Norine was sole owner of the U.S. Savings Bond or the proceeds therefrom because there was no evidence to support the finding and to do so is a misapplication of federal law. We affirm.

Since the record of this case is lengthy, we shall relate only the decisive facts. No-rine and George lived together for a number of years. They handled their financial affairs together and it is undisputed that between July 1971 and June 1977 they became co-owners of numerous U.S. Savings Bonds, Series E, with a face value of fifty-two thousand one hundred dollars ($52,-100). There is no evidence of the source of the funds used to purchase these bonds which were registered in the names of No-rine or George.

Norine and her sister, Hazel Swanson (Hazel), also became co-owners on four (4) one thousand dollars ($1,000.00) bonds in July of 1971, and one (1) one thousand dollars ($1,000.00) bond in August of 1974. Similarly, these bonds were registered in the names of Norine or Hazel. Since Hazel testified to having no knowledge of the bonds, she was not the source of the funds used to purchase these bonds.

Norine and George suffered from health problems and began having difficulty managing their affairs in March of 1981. George’s son, Edward Heitmeier (Edward), came to help them in April of 1981. Norine was hospitalized when Edward arrived but was released April 17, 1981.

George suffered a stroke early in May and was hospitalized. Sometime between May 1st and 15th, Edward was granted power of attorney over Norine’s affairs. On May 15, 1981, while George was in the hospital, Edward accompanied Norine to Roosevelt Federal Savings and Loan so she could redeem the aforementioned bonds. A check payable to Norine V. Catonia and Roosevelt Federal for Sixty Two Thousand Six Hundred Ten Dollars and Thirty Two Cents ($62,610.82), representing the proceeds from the bonds, was issued.

That same day, Norine placed the bonds proceeds in a Forty-Five Thousand Dollars ($45,000) certificate of deposit (C.D.) and opened a NOW account with the balance of Seventeen Thousand Six Hundred Ten Dollars and Thirty-Two Cents ($17,610.32). Both the C.D. and the NOW account were registered in the names of Norine and Edward as joint tenants with the right of survivorship. Shortly thereafter, Edward expended approximately $10,000.00 from the NOW account for his personal use leaving a balance of $7,082.10.

On June 25, 1981, Norine was declared incompetent and Pirkey was appointed her guardian. Upon Norine’s death on August 8, 1981, Pirkey, as administrator, commenced a proceeding in the Probate Court for an inventory of Norine assets and discovered the balance of $7,082.10 in the NOW account. He transferred this amount to a separate estate account at Manufacturers Bank on August 10, 1981, but he was unaware of the existence of the C.D. at this time.

In October of 1981, Edward attempted to have both the C.D. and the NOW account transferred to Sindel, who had been appointed George’s guardian in August of that year. Sindel was informed by an employee of Roosevelt Federal that only the C.D. existed because the NOW account had been closed upon thé transfer of the balance to Pirkey. A new C.D. was issued in Sindel’s name as guardian. On January 26, 1982, Edward assigned his interest to the proceeds which had been in the NOW account to Sindel as George’s guardian.

Pirkey filed a petition for discovery of assets in the circuit court to obtain title to the C.D. Sindel counterclaimed and sought to recover the $7,082.10 withdrawn by Pir-key from the joint NOW account after No-rine’s death. Sindel’s counterclaim sought title to the NOW account as assignee of Edward’s interest in the proceeds. Roosevelt Federal interpleaded the certificate of deposit.

Following a hearing on July 6, 1982, the probate court made findings of facts based on the evidence presented. The pertinent findings of fact are provided:

(1) Norine was mentally incompetent on May 15, 1981.

(2) It was not the desire and intent of Norine that all of her United States Savings bonds be converted to cash and the proceeds transferred to joint accounts with right of survivorship in the form of a C.D. and NOW account with Edward.

(3) Norine acted under the undue influence of Edward in redeeming her bonds.

(4) Norine was sole owner of the $62,610 proceeds from the bonds redeemed on May 15, 1981.

(5) Norine was competent at the time of the issuance of the bonds (between July, 71-June, 77).

(6) The court invoked the doctrine of equitable conversion, considering the bonds as remaining in registered condition of May 15, 1981, to effectuate the intention of No-rine. Further, awarded to George and Hazel the following proportions of the C.D. and NOW account funds, which is identical to their percentage of ownership in the surrendered bonds:

George Heitmeier .8966% (approx. 90%)
Hazel L. Swanson .1034% (10%)

It was stipulated that the bond redemption proceeds were the source of the C.D. and the NOW account balance.

On November 22, 1982, George died and Edward was substituted as his personal representative in place of Sindel on August 25, 1983. Hazel was living at the time of the hearings.

Judgment was entered September 6, 1983 and was amended September 30,1983.

On review, we must affirm the trial court’s judgment if it is supported by substantial evidence, not against the weight of the evidence and the court correctly declared and applied the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

Pirkey contends the probate court erred in invoking equitable principles because: (1) the relief granted was not supported by the evidence; (2) no such relief was requested; (3) the remedy went beyond the relief requested; and (4) an adequate remedy at law existed.

Turning first to Pirkey’s contention that the evidence did not support the application of equitable principles, we disagree. The probate court has both equitable and legal powers. § 472.030 RSMo (Supp.1984). The evidence establishes that No-rine was incompetent on May 15, 1981 and had been unduly influenced by Edward into redeeming savings bonds and subsequently into opening joint accounts in her name and Edward’s. The law is well established that when unadjudicated incompetent contracts, the contract is not void, but voidable under equitable principles. See Evans v. York, 195 S.W.2d 902, 906[4] (Mo.App.1946). Thus, the probate court invoking its equitable powers restored the bond proceeds to the registered co-owners, who survived No-rine.

As to Pirkey’s arguments that equitable relief was not requested and furthermore that the relief granted went beyond the relief requested, we see no merit in these arguments. The plaintiff does not have to label the cause as one in equity when the relief and principles involved are clearly equitable. In equitable actions the probate court has the inherent power to adjust equity between the parties without rigid adherence to any determined form and may shape the remedy to meet the demands of justice. Osterberger v. Hites Construction Co., 599 S.W.2d 221, 231[31, 32] (Mo.App.1980).

Contrary to Pirkey’s argument that equitable relief was improper because an adequate remedy existed at law, it is established that when concurrent jurisdiction exists, i.e. law and equity, equitable principles can be invoked despite the existence of an adequate remedy at law. 27 Am.Jur.2d Equity § 89, p. 612.

Further, Pirkey maintains that even if equitable relief is appropriate under the facts of this case, the court improperly applied the doctrine of equitable conversion because this doctrine is usually applied to matters pertaining to probate estates involving the conversion of real property into personal property.

The doctrine of equitable conversion has been applied to situations not involving real property. The purpose of equitable conversion is to effectuate the intention of the contracting parties. It is not a fixed rule of law but proceeds on equitable principles that take into account the result desired. 27 Am.Jur.2d Equitable Conversion § 1, p. 483.

In Moran v. Sutter, 360 Mo. 304, 228 S.W.2d 682, 687[7] (1950), our Supreme Court applied equitable conversion to hold a daughter’s rights as cestui quie trust attached to the money from the sale of stock which had been held in trust, in lieu of the stock itself. Consequently, we find the probate court’s application of equitable conversion is proper and Pirkey’s point is meritless.

Having determined that the doctrine of equitable conversion is applicable, we will now address the issue of whether the probate court properly applied the doctrine to the facts.

The probate court awarded the bond proceeds to the surviving co-owners in proportions equal to their ownership in the bonds prior to Norine’s redemption. Pirkey maintains that pursuant to regulations of U.S. Treasury Department Norine was the sole owner of the proceeds.

Pirkey relies on the United States Treasury Department, 31 C.F.R. § 315.37 (1983) which in part provides:

“A savings bond registered in co-ownership form will be paid to either co-owner upon surrender ... and upon proper payment ... the other co-owner will cease to have any interest in the bond. If both co-owners request payment ... the check will be drawn in the form, ‘John A. Jones and Mary C. Jones.’ ”

Government regulations establish that the government’s interest is contractual, i.e., to pay the owners an agreed amount upon proper presentation of the bonds. Valentine v. St. Louis Union Trust Co., 250 S.W.2d 167, 169[1] (Mo.1952). The regulations pertain to the rights of co-owners in relation to the government at redemption not as to their rights between each other. Once the proceeds were paid, the government’s interest in the matter ended.

The above regulation creates a joint tenancy with right of survivorship between the co-owners. Valentine, 169[1].

We have not been directed to, nor has our research revealed, a case concerning the disposition of funds received upon the surrender of U.S. savings bonds by one co-owner but since the co-owners are treated as joint tenants with the right of surviv-orship we look to our Supreme Court’s holding in Armbruster v. Armbruster, 31 S.W.2d 28, 37[7-8] (Mo.1930). Armbruster is informative because it involves a similar form of joint tenancy created by statute, a joint savings account. In Armbruster, at 31, our Supreme Court applied the following rule:

“[T]he joint form of the account, either or the survivor to draw, of itself alone raises a presumption of fact, or inference, that the joint interest of the depositors follows funds withdrawn by either and negatives the idea that such withdrawals were severed from the joint estate and appropriated by the drawer to his own use. But the presumption is a weak one and readily yields to parol proof of the real intention of the parties. And while it makes a prima facie case for the party asserting the joint interest, the burden of proof is on him to establish his title by a preponderance of all the evidence.”

Applying this rationale, we find Pirkey failed to overcome the presumption and the preponderance of the evidence clearly indicates that Norine did not intend to redeem the bonds and create a joint tenancy with Edward in a C.D. and a NOW account.

Pirkey, after Norine’s death, has no authority to act in derogation of Norine’s intent in the disposition of her interest. Willman v. Phelps, 631 S.W.2d 63, 66[4] (Mo.App.1982).

Thus, the probate court properly applied and declared the law and its findings have substantial evidentiary support.

Judgment affirmed.

STEWART and STEPHAN, JJ., concur.


author: CHANNING D. BLAEUER, Special Judge.

text:
    STATE of Missouri, Respondent, v. Lawrence E. FOSTER, Appellant.
    No. 48072.
    Missouri Court of Appeals, Eastern District, Northern Division.
    Jan. 8, 1985.
    Dennis G. Schafer, Asst. Public Defender, St. Charles, for appellant.
    John Ashcroft, Atty. Gen., John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   CHANNING D. BLAEUER, Special Judge.

The defendant was found guilty by a jury of assault in the first degree, § 565.-050, RSMo (1978), a class A felony, and armed criminal action, § 571.015, RSMo (1978). The trial court found that he was a “prior offender” as defined by § 558.016.2, RSMo (Supp.1984), and sentenced him to consecutive terms of fifteen years, § 558.-011, RSMo (Supp.1984), and seven years § 571.015.1 RSMo (1978) on the respective convictions. We affirm.

Defendant does not challenge the sufficiency of the evidence to support the conviction. In his only point, he attacks the use of his prior conviction while that conviction was pending on appeal. The attack is twofold. First, defendant contends that the court improperly removed the sentencing function from the jury. Second, he alleges the court erred in overruling his motion in limine which sought to prevent the prosecution from impeaching him, if he testified, by the prior finding of guilt. Defendant did not testify.

Since defendant did not take the stand, there was no impeachment. Therefore, the ruling on the motion is not properly before us. However, defendant’s point is squarely resolved by State v. Jackson, 651 S.W.2d 547 (Mo.App.1983). In Jackson, the Western District held a defense witness may be impeached by a conviction then pending on appeal. This court has held it will follow Jackson. State v. Kayser, 671 S.W.2d 352, 354 (Mo.App.1984). In this matter defendant stands in the same position as any other witness. Townsend v. State, 621 S.W.2d 312, 313 (Mo.App.1981). The ruling on the motion was proper.

Similarly, the court did not err in assessing punishment. The sentencing procedures are purely statutory, there being no constitutional right to a jury on the issue of punishment. State v. Hampton, 607 S.W.2d 225 (Mo.App.1980). By statute, the court assess punishment if defendant is a prior offender. § 557.036.4(2) RSMo (Supp.1984). The operative fact in determining whether defendant is a prior offender is whether he “has pleaded guilty to or has been found guilty of one felony.” § 558.016.2 RSMo (Supp.1984). A final judgment of conviction is not required. State v. LaPlant, 673 S.W.2d 782, 784-85 (Mo. banc 1984). Thus, the test used here is the same as that used for impeachment purposes; simply, whether there has been a finding of guilt. Here, there had been that finding so the court did not err in assessing punishment itself.

The judgment is affirmed.

REINHARD, C.J., and CRIST, J., concur.

      . State v. Foster, 665 S.W.2d 348 (Mo.App.1984).


text:
    KENNETH D. CORWIN, LTD., a corporation, d/b/a Plastic and Reconstructive Surgery, Inc., Plaintiff-Respondent, v. MISSOURI MEDICAL SERVICE, a corporation, Defendant-Appellant.
    No. 48398.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 8, 1985.

      Henry J. Mohrman, St. Louis, for defendant-appellant.
    Gerald J. Bamberger, St. Charles, for plaintiff-respondent.
   PUDLOWSKI, Presiding Judge.

This is a civil action for damages for breach of contract in which the trial court entered Summary Judgment in favor of plaintiff and against defendant and denied defendant’s Motion for Summary Judgment. This appeal involves the determination of the parties’ rights and obligations under certain contracts relating to health services. We affirm.

Defendant, Missouri Medical Service, is a nonprofit membership corporation organized und^r Chapter 352 and licensed as a health service corporation under Chapter 354 of the Revised Statutes of Missouri. It operates a health service plan known as the Blue Shield Plan under which prepaid medical, surgical and related health services are furnished to subscribing members in accordance with programs chosen by such subscribers.

Kenneth D. Corwin, M.D. (hereinafter referred to as Dr. Corwin) is a licensed physician and surgeon specializing in plastic surgery, who on December 12, 1975 applied for registration as a participating physician member of defendant. He was accepted as such on or about December 29, 1975. On January 29, 1976, Dr. Corwin formed a professional corporation known as Kenneth D. Corwin, Ltd.

Larry J. Thieret (hereinafter referred to as Thieret) at all relevant times was a member of the Missouri Farm Bureau Federation which sponsored a health care program called the “Deluxe Option,” consisting of three separate contracts which were (1) a contract for hospital services only issued by Blue Cross Hospital Service, Inc., of Missouri, (2) a contract for surgical services issued by defendant, and (3) a contract for Major Medical expense issued jointly by defendant and Blue Cross Hospital Service, Inc. of Missouri.

On December 19, 1977, Dr. Corwin performed a surgical operation upon Thieret for a facial deformity for which Dr. Corwin charged a fee of $3,215.00. On January 28, 1978, Dr. Corwin reported this operation and the charge to defendant. He submitted with his service report an operative report disclosing that he had performed four separate procedures, three to the eye area and one to the nose area. Defendant determined that the maximum benefit under its contract for surgical services was $503.00 and accordingly defendant paid Dr. Corwin $503.00 on June 22, 1978.

Meanwhile, Thieret applied to the Major Medical Department of Blue Cross Hospital Service, Inc. of Missouri and defendant for major medical benefits due to him under his contract for major medical expense. The Major Medical Department determined that Thieret was entitled to $2,169.60 which was paid to him on June 30, 1978. This payment was based upon the belief that Thieret had fully paid plaintiff for its services. However, Thieret had made no payment to plaintiff and on October 20, 1980, Thieret filed a voluntary petition in bankruptcy scheduling plaintiff as a creditor. Thieret’s debt owed to plaintiff was duly discharged on August 7, 1981.

Plaintiff began this action on May 2, 1980 under the style of Plastic and Reconstructive Surgery, Inc. alleging that plaintiff was entitled to recover from defendant a payment of $2,169.60. On March 10, 1981 plaintiff was granted leave to amend its name to Kenneth D. Corwin, Ltd., a corporation, d/b/a Plastic and Reconstructive Surgery, Inc.

Defendant relied upon the provisions of the applicable contracts and denied any obligation to make the payment demanded by plaintiff.

The trial court entered judgment for plaintiff on November 14, 1983 in the amount of $2,169.60 with interest and costs. On November 28, 1983, defendant filed a Motion for New Trial, which was denied on February 24, 1984. From the denial of that motion this appeal was taken.

Defendant’s first point on appeal alleges the trial court erred in holding that plaintiff, Kenneth D. Corwin, Ltd., a corporation, d/b/a Plastic and Reconstructive Surgery, Inc. acquired any rights against defendant from Dr. Corwin because the contract between Dr. Corwin and defendant was for personal services, and as such, was not assignable without consent of both parties.

The standard of review of a summary judgment is the same as that of a case tried by the court. City of Kirkwood v. City of Sunset Hills, 589 S.W.2d 31, 34 (Mo.App.1979). The judgment of the trial court will be affirmed unless the trial court erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

It is well recognized that in a contract for personal services, which involves special knowledge, skill or a relation of personal confidence, the duty to perform is not assignable without the consent of both parties. Sympson v. Rodgers, 406 S.W.2d 26, 30 (Mo.1966); Corbin on Contracts, One Volume Ed. 804, 805. However, the right to receive money due or to become due under a contract, is not personal in nature, and as a general rule is assignable. C.J.S., Assignments § 19 p. 613.

Plaintiffs affidavit of Dr. Corwin in support of plaintiff’s Motion for Summary Judgment specifically stated that “on January 29, 1976, affiant formed a Missouri professional corporation, Kenneth D. Corwin, Ltd. and from that date forward all accounts receivable for medical and surgical services of affiant were the property of said corporation.” This was sufficient evidence for the trial court to find that on January 29, 1976, plaintiff had been assigned Dr. Corwin’s rights to accounts receivable. While the debt owed to Dr. Cor-win by defendant for services rendered did not accrue until December 19, 1977, this fact is of no significance. Dr. Corwin was not assigning his duty to perform personal services but was assigning his right to receive payments in the future. The assignment of a right to receive future payments does not violate the policy against assignment of a duty to perform personal services. The trial court did not err in holding that plaintiff acquired Dr. Corwin’s right to receive future payments.

Defendant’s next two points allege the terms of Dr. Corwin’s contract limited benefits and payments to those actually provided. Defendant’s contentions are without merit.

Dr. Corwin’s contract was in the form of an application to defendant for registration as a participating physician. The contract provided in relevant part:

I understand that the services to be rendered by the Participating Physician under the plan shall be limited to such medical, surgical and other professional health care services as are covered by the Corporation’s agreement with each representative subscriber. It is understood and agreed that the corporation shall pay directly to the Participating Physician compensation for medical, surgical and other health care services as specified in the Subscriber’s Certificate of Membership. (Emphasis added).

Dr. Corwin’s contract specifically provides for direct payment for services which are covered by defendant’s agreement with each representative subscriber. Kathryn Nieburg, Manager of the Claims Review Department of defendant, testified by affidavit that Thieret’s agreement known as the “Deluxe Option” provided:

(1) Hospital Services by Blue Cross Hospital Services, Inc.;
(2) Medical-surgical Services by defendant;
(3) Major medical expenses jointly made by defendant and Blue Cross Hospital Service, Inc.

Defendant approved $503 from the total charge of $3,215 for medical-surgical services as provided by (2). Nieburg testified that the remaining $2,712 was covered under Thieret’s contract for major medical expenses. Thus there is no dispute that the medical services were covered by the “Deluxe Option.”

Defendant, however, argues that Thier-et’s Major Medical Expense Contract was separate from the physician contract and as such, Dr. Corwin was not entitled to payment. Defendant’s also argues that the Major Medical contract provided that “all indemnities will be payable to the member.”

We note, and defendant agrees, that the two contracts are separate. It is because they are distinct that we disagree with defendant’s contention. The physician contract specifically requires the appellant to pay directly to the participating physician compensation for medical, surgical and other health care services as specified in the subscriber’s contract. The subscriber’s contract provided for medical expenses and we conclude that plaintiff is entitled to those medical costs under the physician contract. We need not address defendant’s liability to the employee’s claim under the contract with the defendant since that issue is not before us.

Judgment affirmed.

GAERTNER and KAROHL, JJ., concur.


text:
    OSAGE OUTDOOR ADVERTISING INC., Respondent, v. PARA-SAIL RIDES LTD., a corp., Thomas M. Schiller, Individually, and Thomas M. Schiller and Abbie Schiller, as Statutory Trustees of Para-Sail Rides, Ltd., Appellant.
    No. 48619.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 8, 1985.
    James H. Wollbrinck, St. Louis, for appellant.
    Alex Bartlett, Jefferson City, for respondent.
   ORDER

PER CURIAM.

Defendants appeal a judgment against them for $8,976.00 plus costs in a court tried action for breach of an advertising contract. No jurisprudential purpose would be served by a written opinion. The judgment is affirmed pursuant to Rule 84.-16(b).