author: SNYDER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Charles Jerry DAVIS, Defendant-Appellant.
    No. 47635.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 26, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 13, 1985.
    Application to Transfer Denied April 2, 1985.

      Lester W. Duggan, Jr., St. Peters, for defendant-appellant.
    John Ashcroft, Atty. Gen., Deborah Neff, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   SNYDER, Presiding Judge.

Charles Jerry Davis appeals from a judgment convicting him of possession of a weapon while intoxicated in violation of § 571.115 RSMo.1978 (repealed 1981). A jury found appellant guilty and the court imposed a $500 fine. The principal point raised by appellant is the constitutionality of the warrantless police search of appellant’s residence. The judgment is affirmed.

In addition to the allegation of the unconstitutionality of the residential search, appellant argues that the trial court committed error by: (1) failing to find the statute unconstitutionally vague and overbroad; (2) holding that the state made a submissi-ble case; (3) admitting evidence that bullets which may have been from appellant’s gun were found in a nearby electric transformer; (4) denying appellant’s motion for a bill of particulars; (5) denying a motion to quash and dismiss because the information was too vague; and (6) reciting the wrong range of penalties in the verdict directing instruction.

On December 19, 1980, two police officers received a radio dispatch report of gunshots fired near 791 Southwell in the City of Florissant. At approximately 8:00 a.m. the two officers, in separate police cars, arrived simultaneously at 775 South-well to find a man in the side yard holding a long gun at port arms. The temperature outside was 32° F, but the suspect wore nothing over his short sleeved tee shirt.

The man appeared to see the officers and then entered 775 Southwell, one unit of a duplex apartment, by the side door. A third officer arrived and was stationed by the side door while the other two officers knocked on the front door and announced themselves as police officers. They heard no response even though the door was slightly ajar. The officers pushed the door further open, again announced they were policemen, and began to search the apartment. They saw the outline of two people who were completely covered by a blanket on the bed in one of the bedrooms. The policemen ordered the two out of bed. One of the men was the one whom the officers had seen outside the apartment, the appellant, and the other was his son. Appellant was dressed just as he had been when he was outside the house.

When the officers ordered appellant to stand, he was unsteady on his feet and smelled of alcohol. A search revealed two long guns in the bedroom, and a nearly-empty bottle of whiskey next to a half-empty glass of whiskey in the kitchen. The officers arrested appellant for possession of a weapon while intoxicated.

One of the guns found in the bedroom was a 30.06 Remington rifle. Two 30.06 expended shell casings which had been fired from the rifle were found in the kitchen.

Bullet fragments were recovered from a Union Electric transformer located near appellant’s apartment. There was evidence that the fragmented bullet had been fired from a Remington 30.06 rifle, although the ballistics expert who testified could not narrow it down to appellant’s Remington rifle.

The residence which the police searched and where appellant was found was appellant’s residence. At the time the police knocked, announced themselves, and then entered, they did not know whose residence it was.

Appellant was charged with possession of a firearm while intoxicated, § 571.115 RSMo.1978, and knowingly damaging property of another, § 569.110 RSMo.1978. A jury found him guilty of both offenses but the trial court granted his motion for a new trial on the possession count and his motion for judgment of acquittal on the damage to property count.

A new trial was held which resulted in the judgment now on appeal. A jury found appellant guilty of the charge of possession of a deadly weapon while intoxicated and assessed a fine as his punishment, the amount of the fine to be determined by the court. The court in its judgment set the fine at $500.

If appellant’s non-constitutional claims merited reversal, it would be unnecessary to consider his points alleging violation of his constitutional rights. Inasmuch as the non-constitutional points are meritless, the alleged constitutional violations must be considered. State ex rel. State Board of Mediation v. Pigg, 362 Mo. 798, 244 S.W.2d 75, 79 (Mo. banc 1951).

Appellant argues that evidence of the guns and alcohol must be suppressed as the fruit of an unconstitutional search because they were seized pursuant to a war-rantless search and arrest in his home. Appellant insists his constitutional rights under Art. 1, §§ 2,10 and 15 of the Missouri Constitution, and Amendments IV, V and XIV to the United States Constitution, were violated. His point is without merit.

When the policemen saw appellant enter the apartment at 775 Southwell carrying a gun, they were investigating a report of gunshots. The officers entered the apartment because they believed that a crime had been committed and had reason to believe that additional criminal activity might be contemplated. They saw a man, appellant, enter a residence with a gun. The officers did not know it was appellant’s residence. He may have been breaking and entering someone else's house. Their beliefs were reasonable under the circumstances.

Police should be free to investigate when they hear reports of gunfire and see a person carrying a gun. The search and seizure provisions of the United States and Missouri Constitutions allow police to enter a home without a warrant where, as here, they reasonably believe a crime is being committed. See, e.g., State v. Novak, 428 S.W.2d 585 (Mo.1968).

The facts of the instant case are similar to Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). In Hayden, an armed robbery suspect hid in a house. The police entered and searched for the suspect and for weapons. Writing for the majority, Mr. Justice Brennan stated:

The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.

Id. at 298-99, 87 S.Ct. at 1645-46.

The police officers responded to reports of gunshots. They saw a man holding a long gun who was not dressed for the weather. The man seemed to see the officers and went into a residence which they did not know to be his and which may have been occupied. He left the door ajar and did not respond when the officers called to him. These facts constitute exigent circumstances which justify warrantless entry into a private home.

Appellant also challenges the constitutionality of § 571.115 RSMo.1978 asserting that the words “possession” and “intoxication” make it unconstitutionally vague and overbroad. The point is also denied.

The appellant concedes in his brief that “The evil sought to be remedied by the prohibitory statute ... is the danger to the public ... caused by deadly weapons in the hands of intoxicated persons.” This statement of the legislative purpose is correct.

Statutory language is to be interpreted consistent with its purpose, U.S. v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975), and will be interpreted to make it constitutional whenever possible, St. Louis Board of Education v. Shannon, 640 S.W.2d 121 (Mo. banc 1982), citing Diemer v. Weiss, 343 Mo. 626, 627, 122 S.W.2d 922, 923 (Mo. banc 1938). Any ambiguity in the meaning of “possession” in § 571.115 is resolved by looking to the purpose of the statute. By similar logic the word “intoxicated” is not unconstitutionally vague or overbroad given the legislative purpose of the law.

The appellant points out that “possession” has multiple meanings. He cites a 1927 decision which held that control of liquor through an agent or co-principal constituted “possession.” State v. Compton, 297 S.W. 413, 414 (Mo.App.1927), citing 33 C.J. 585.

The Compton decision does not apply to appellant’s case. Liquor was a forbidden commodity, so possession of it through another person was no less a violation of law than actually holding a bottle.

Appellant argues his equal protection rights are violated by the exemptions contained in § 571.115 RSMo.1978, the exemption of some public officials who carry guns as part of their jobs and of people traveling peacefully through the state.

The appropriate standard of review is whether the legislation is rationally related to some legitimate state interest. City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976). The officers who carry guns are under greater state control than ordinary citizens. Thus, it is rational to use the statute only to regulate those not authorized to bear arms.

Further, the legislature is not required to remedy all of a given kind of evil or none at all. Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 488-89, 75 S.Ct. 461, 464-65, 99 L.Ed. 563, 572-73 (1955). The Missouri Supreme Court has held that letting travelers carry weapons serves the legitimate interest of allowing people to protect themselves in unfamiliar surroundings. State v. Horne, 622 S.W.2d 956, 957 (Mo.1981). Appellant’s second constitutional point is denied.

Appellant charges the trial court erred in denying his motion for judgment of acquittal because there was insufficient evidence for the jury to find that he possessed a weapon while intoxicated.

The standard of review for sufficiency of evidence is to “... accept as true all evidence, direct or circumstantial, and all reasonable inferences supportive of the verdict and disregard those portions of the record contrary to a finding of guilt.” State v. Turner, 623 S.W.2d 4, 6 (Mo. banc 1981). Applying this standard there was sufficient evidence to take the case to the jury. The point is denied.

Appellant also alleges that the trial court erred in overruling his objections to the evidence of the guns, shell casings, bullet fragments and photographs of the damaged transformer because it was irrelevant and immaterial, because it showed evidence of other crimes (the charge of knowingly damaging property of another, of which he was acquitted), and because it constituted double jeopardy.

The double jeopardy argument is fallacious on its face. This possession offense is not the same as the damage to property offense.

The evidence was relevant along with evidence of the 30.06 rifle found to show the possession of the firearm by appellant while standing outside his residence.

Appellant also asserts that the issue of whether he had fired the bullets into the transformer from his 30.06 rifle was decided when he was acquitted of the property damage charge, apparently arguing collateral estoppel. The property damage charge could have been decided on other issues, that is, whether the damage amounted to more than $500 or whether appellant knowingly damaged it. Collateral estoppel does not lie.

Appellant further asserts that evidence of the bullet fragments should not have been admitted because it was evidence of another crime. The evidence was admissible because it legitimately tended to prove appellant’s guilt of the crime charged and because proof of the two crimes was so linked together that proof of one involved proving the other. State v. Winston, 657 S.W.2d 399, 400[1] (Mo.App.1983). Appellant’s point relating to the admission of the guns, shell casings and bullet fragments is denied.

Next the trial court is accused of error for denying appellant’s motion for a bill of particulars, or alternatively, for denying his motion to quash and dismiss the information for vagueness. The point is denied.

The information cited § 571.115 RSMo. 1978 and set forth the elements of the offense. It included the date, time and place of appellant’s acts. The information stated that appellant “Possessed, while intoxicated a deadly weapon to-wit: a long gun; defendant was observed in his backyard with a long gun after reported shots fired.”

The argument that a “long gun” is not included in the statutory prohibition is not persuasive. The statute regulates “any kind of firearms.” Nor did failure to specify the manufacturer and serial number of the gun or how appellant possessed his gun (e.g., in his hand) hinder the preparation of his defense.

The information stated all essential elements of the offense. It apprised the defendant of the facts constituting the offense with sufficient clarity. State v. Brown, 660 S.W.2d 694, 698 (Mo. banc 1983), Mo.Rule 23.01(b).

Under Rule 23.04 the trial court has discretion to direct or permit the filing of a bill of particulars. Its purpose is limited to “informing the defendant of the particulars sufficiently to prepare his defense.” State v. Anderson, 384 S.W.2d 591, 598[2] (Mo. banc 1964).

In the case under review the information sufficiently apprised the appellant of the offense he was charged with so that he could prepare his defense. The trial court did not abuse its discretion when it denied the motion for a bill of particulars.

Appellant contends and the state admits that the trial court’s instruction to the jury on the possible range of punishment was error. The error, however, was harmless and appellant’s request for reversal on this point is denied.

The error came about because of an amendment to the criminal statutes effective after the commission of the offense. The classification of the offense charged had been reduced from a Class D felony to a Class B misdemeanor and the trial court should have instructed the jury on the reduced punishment. § 1.160 RSMo.1978.

Such an error is not prejudicial per se. State v. Brewer, 630 S.W.2d 591, 597 (Mo.App.1982). The court instructed the jury on the more severe felony punishment but the jury found appellant guilty and set his punishment as a fine, the amount to be assessed by the court. The court fined appellant $500, within the Class B misdemeanor range of punishment, which is imprisonment for a term not to exceed six months, 558.011 RSMo.1978, or a fine not to exceed $500, § 560.016 RSMo.1978. The error was not prejudicial. See State v. Brewer, supra at 597[6].

The judgment is affirmed.

STEWART, J., and JACK L. KOEHR, Special Judge, concur.

      . § 571.115 RSMo.1978 was repealed in 1981. § 571.030.1(5) RSMo.Cum.Supp.1983 is the current statute concerning possession of a weapon while intoxicated.


source: Caselaw Access Project

author: SMITH, Presiding Judge.

license: Public Domain

text:
    ST. LOUIS POLICE OFFICERS’ ASSOCIATION, a not for profit corporation, Donald Schnable, Paul Rea and James Conner, Appellants, v. Homer E. SAYAD, Charles Valier, Thomas W. Purcell, Robert F. Wintersmith, comprising the membership of the Board of Police, St. Louis Metropolitan Police Department, Respondents.
    No. 48258.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 26, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 13, 1985.

      C. John Pleban, St. Louis, for appellants.
    F. William McCalpin, St. Louis, for respondents.
   SMITH, Presiding Judge.

Appellants, the St. Louis Police Officers’ Association and three individual police officers, appeal from the trial court’s refusal to issue a peremptory writ of mandamus against the Board of Police Commissioners of the City of St. Louis. The St. Louis Police Officers’ Association is a voluntary not-for-profit association whose membership includes a majority of the police officers employed by the Board. We affirm in part and reverse in part. Most of the pertinent facts are contained in a stipulation of the parties or are documentary in nature.

There exists within the police department a procedure for investigation of complaints made against police officers. In 1974 the then existing Board provided for a procedure for investigation of complaints made by citizens against officers, including certain appeal rights by citizens to the Board itself. One of the new rules enacted at that time was Rule 7.013. It provided:

“7.013 Classification-Complaint Investigation Reports — Each forwarded complaint investigative report shall specify the allegation(s) which are to be classified in one of the following four categories:
(a) Unfounded. The complaint was not based on facts, as shown by the investigation, or the incident complained of did not occur.
(b) Exonerated. The action complained of did occur, but the investigation disclosed that the actions were reasonable, lawful and proper.
(c) Not sustained. Insufficient evidence available to either prove or disprove the allegations in the complaint.
(d) Sustained. Investigation disclosed sufficient evidence to support the allegations in the complaint.
In any instance when a complaint is finally disposed of as ‘Unfounded,’ or ‘Exonerated,’ all records pertaining to the complaint and its disposition shall be expunged.”

These categories pre-existed the rules change but no expungement was authorized.

The minutes of the Board meeting at which the new procedures were passed, including Rule 7.013, stated:

“Colonel McNeal directed the Board’s attention to the new draft on the citizen complaint procedures. Following the discussion of this new draft, Mayor Poelker moved that the citizen complaint procedures be approved and adopted by the Board to take effect on October 1, 1974 and that incidents occurring and filed on and after that date would be covered by the new procedures. Incidents occurring prior to October 1, 1974 will be covered by the present procedures. Colonel Walsh seconded the motion, which was unanimously approved.”

In 1977 the Board amended Rule 7.013 to add a category of “Complaint Withdrawn” which category was added to those covered by the expungement provision.

Commencing on October 1, 1974 the Department began expunging from departmental records complaints and investigations thereof occurring on or after that date found to be “Unfounded” or “Exonerated.” It did the same for “Complaint Withdrawn” dispositions occurring on or after the effective date of the 1977 amendment. No expungement was made from departmental records of complaints in any of the three categories which were disposed of prior to the effective date of the rules. As a result the records of officers having complaint dispositions in any of the three categories for which expungement is now provided still show such complaint dispositions occurring before the effective date of the rules. These records are utilized by the Board in assessing punishment for complaints “sustained” and in determining promotions.

The three individual plaintiffs are all long-time police officers and each has one or more of the now expunged complaint categories reflected in his service record for complaints pre-dating the 1974 and 1977 rules. These plaintiffs and the Association sought mandamus to compel the Board to expunge from all department records complaint dispositions of “unfounded,” “exonerated” and “withdrawn" which pre-date the rules changes. They also sought to have all complaint dispositions in the “not sustained” category expunged on due process grounds.

The plaintiffs challenge the trial court’s finding that the Association lacked standing to bring this action. The Board has not addressed this issue in its brief. The practice challenged directly affects many members of the Association and if the failure of the Board to expunge is illegal it is a practice which the individual members could properly challenge as it affects their discipline and promotion. The interests which the Association seeks to protect are germane to the organization’s purpose. Neither the relief requested nor the claim asserted requires the participation of individual members in the lawsuit. In this case the Association meets all the requirements of associational standing. Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 344, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977) [2]; Ferguson Police Officers’ Association v. City of Ferguson, 670 S.W.2d 921 (Mo.App.1984) [1]; Pippin v. City of Springfield, 596 S.W.2d 770 (Mo.App.1980) [8]. The case is distinguishable from St. Louis Police Officers’ Association v. McNeal, 585 S.W.2d 70 (Mo.App.1979) where the court held no actual controversy in fact existed meaning any decree would be advisory only. Here the relief sought would compel the Board to expunge the records of all the officers in the department affected by the practice challenged. Such a decree is in no sense advisory. The trial court erred in dismissing the Association from the proceeding.

We next turn to the availability of mandamus to obtain the relief sought. “The function of a writ of mandamus is to enforce, not establish, a claim or right and its purpose is to execute, not adjudicate ... The general rule is that a court will issue a writ of mandamus only where it is shown that one requesting the writ has a clear and unequivocal right to the relief requested and a corresponding present, imperative, unconditional duty imposed on the respondent which the respondent has breached.” Naugher v. Mallory, 631 S.W.2d 370 (Mo.App.1982) [2-5]; State ex rel. Summers v. Platz, 614 S.W.2d 559 (Mo.App.1981) [5]; Leamon v. City of Independence, 625 S.W.2d 204 (Mo.App.1981) [2, 3]. To the extent that plaintiffs seek through the writ to establish their right to relief based upon due process or equal protection grounds they are attempting to use the writ to adjudicate not execute, to establish not enforce. They are not entitled to utilize the writ for that purpose. The contentions regarding the “not sustained” category of investigation reports are based solely upon such grounds. There is no contention that any rule or statute exists which requires the expungement of those records. The trial court correctly denied the writ as to the “not sustained” category.

For the same reasons we need not review plaintiffs’ arguments that expungement of the other three categories is required on constitutional grounds. We need deal only with the question of whether under the rule of the Board the department is required to expunge the three categories of complaints set forth in 7.013. If it is, then mandamus is proper to compel such action. That question becomes essentially one of whether Rule 7.013 is prospective only in application. Generally statutory enactments are deemed to operate prospectively because the Missouri Constitution forbids the enactment of a retrospective law which impairs a vested right. Mo. Const. Art. I, Sec. 13. However a procedural statute operates retrospectively unless a contrary intent appears from the terms of the enactment. State v. White, 622 S.W.2d 939 (Mo. banc 1981) [15, 16], cert. den. 456 U.S. 963, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982); State ex rel. Research Medical Center v. Peters, 631 S.W.2d 938 (Mo.App.1982) [2-6]; State ex rel. Lawyers Title Insurance Corporation v. Elrod, 636 S.W.2d 396 (Mo.App.1982) [2]. We believe the same doctrines should apply to administrative rules. The minutes of the Board meeting in 1974 state that incidents occurring after October 1, 1974 would be covered by the new procedures. Utilizing an argument that “procedures” includes the expungement provisions the Board contends that it was the intent of the Board that all of the Rules would be prospectively applicable.

However, the procedures referred to at the Board meeting dealt with “citizen complaints.” They provided a procedure for dealing with such complaints not previously authorized by the Board, including a right of appeal by the complainant to the Board. The classification provisions and the expungement provision were not limited to citizen complaints but applied equally to complaints generated internally. The statement of Mayor Poelker related to the procedures to be followed for incidents occurring after the effective date of the rules. Such an application of the citizen complaint procedures was necessary to prevent reopening of old complaints already investigated and disposed of. We are not convinced therefore that the minutes clearly evidence an intention that the classification provisions (previously in existence) and the expungement provision were intended to be limited to new complaints. Rule 7.013 was clearly a procedural rule. It does not itself contain language evidencing an intention of prospective application only as it relates to expungement.

The Board has not advanced at any stage of these proceedings a reason why the rule should apply to new complaints but not old ones. The application of the rule clearly impacts upon older veteran police officers and has no impact on officers with ten years or less service. The Board does utilize this information in determining discipline and promotions. Board members testified that the “patterns” indicated by the complaint information were considered by them. Why such information or patterns more than 10 years old are useful and more recent information or patterns are not has never been explained. It is clear that the rule as interpreted by the Board places officers into two discrete classes— those with long tenure in the department and those with short tenure. The classes receive different treatment based solely on longevity with the department. Even utilizing the “rational-relation-to-some-legitimate-state-interest” test for equal protection it is apparent that the disparate treatment has questionable constitutional validity. State Board of Registration for the Healing Acts v. Giffen, 651 S.W.2d 475 (Mo. banc 1988) [2]; Labor’s Educational and Political Club-Independent v. Danforth, 561 S.W.2d 339 (Mo. banc 1977) [15]. In interpreting a statute or a rule, courts should, if possible, utilize a construction which will avoid invalidity. City of Kirkwood v. Allen, 399 S.W.2d 30 (Mo. banc 1966) [6-9],

It is reasonable to conclude that the purpose of the Board in providing for expungement was to preclude usage of unfounded or unjustified complaints against officers in matters of discipline and promotion. That purpose is served by expungement of all such records and is not served by partial expungement resulting in disparate treatment of similarly situated officers. Courts favor a construction which avoids unjust or unreasonable results and gives effect to the legislative intent. State v. Burnau, 642 S.W.2d 621 (Mo. banc 1982) [4-6]; Maryland Casualty Company v. General Electric Company, 418 S.W.2d 115 (Mo. banc 1967) [2-3]. We therefore conclude that Rule 7.013 applies equally to those complaints arising before and after the effective date of the Rule. The trial court should have made the writ peremptory as to those complaint investigation reports finding the complaint “unfounded,” “exonerated” and “withdrawn” occurring prior to the effective date of Rule 7.013 and its amendment.

The judgment of the trial court dismissing the St. Louis Police Officers’ Association is reversed. The judgment of the trial court denying a peremptory writ of mandamus against defendants to require them to expunge records of complaints finally disposed of as “Unfounded,” “Exonerated” and “Complaint Withdrawn” is reversed. In all other respects the judgment is affirmed. Cause remanded for further proceedings in accord with this opinion.

SNYDER and SATZ, JJ., concur.


author: PUDLOWSKI, Presiding Judge.

text:
    Donna Sue DILLARD, Tony A. Dillard, Claimants-Respondents, v. CITY OF ST. LOUIS, Employer-Appellant.
    Nos. 48352, 48365.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 26, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 13, 1985.
    Application to Transfer Denied April 2, 1985.

      Robert H. Dierker, Jr., Associate City Counselor, St. Louis, for employee-appellant.
    Claude Hanks, Leonard Yocum, Creve Coeur, for claimants-respondents.
   PUDLOWSKI, Presiding Judge.

The widow and six year old child of Russell Dillard filed a claim for death benefits arising out of his death. The claim was tried before an administrative law judge who found in favor of employer. The claimants filed an application for review to the Labor and Industrial Relations Commission which reversed the administrative law judge and awarded death benefits. Employer appeals. Attorneys for the claimants have filed a cross appeal relating to the award of attorney’s fees. We affirm.

The Commission found that on June 25, 1981, the decedent was employed by the City of St. Louis as a city surveyor. The decedent, Donald Rogers, and Mark Glasby comprised a survey crew and were performing work surveys on Lemp Street located in the City of St. Louis. At approximately 1:00 p.m., the three men were sitting in a van parked on Lemp which they used for their field surveys. After decedent finished his lunch he left the van with a drafting pencil in his hand and commenced performing survey work.

While deceased was standing in Lemp street, performing his survey work, a Cadillac drove by narrowly missing him. Immediately words were exchanged between the deceased and the driver of the Cadillac. The Cadillac stopped and further words were exchanged. The driver then proceeded down the street continuing to exchange words with decedent. He then stopped his car for a second time, got out and started walking toward the deceased. The deceased began walking toward the driver. The two men confronted each other close to the rear end of the car. The driver suddenly swung at the deceased with a knife stabbing him in the chest and then struck him in the jaw. The driver then removed his rear license plate threw it in the back seat of the car and drove off. Deceased’s two co-workers ran to his aid at which point deceased stated, “that mother fucker stabbed me in the heart.” Decedent died en route to the hospital.

Based upon these facts, the Commission found the death of the decedent was a compensable accident as defined in Section 287.120.1 because his death occurred while he was in the course of his employment and it was caused by the unprovoked assault against him by an unknown assailant. The Commission further awarded claimant’s attorney the sum of $12,000.00 as and for attorney’s fees.

We must determine if the award of the Commission is supported by competent and substantial evidence on the whole record. All of the evidence and legitimate inferences must be viewed in a light most favorable to the award. Blair v. Associated Wholesale Grocers Inc., 593 S.W.2d 650, 652 (Mo.App.1980).

On appeal, employer contends the award is unsupported by competent and substantial evidence because the undisputed facts reveal the fatal assault on the employer was provoked within the meaning of Section 287.120.1 RSMo 1978.

Section 287.120.1 provides:

Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person. The term “accident” as used in this section shall include, but not be limited to, injury or death of the employee caused by the unprovoked violence or assault against the employee by any person.

In Person v. Scullin Steel Co., 523 S.W.2d 801, 803-04 (Mo. banc 1975), the Supreme Court quoting from Liebman v. Colonial Baking Co., 391 S.W.2d 948, 951 (Mo.App.1965) stated as follows:

The assault doctrine has been fully developed in Missouri_ Assaults divide conveniently into three classes....
1st: Those which are invited by the dangerous nature of the employee’s duties, or by the dangerous environment in which he is required to perform them, or are the outgrowth of frictions generated by the work itself,. but which in either event are invariably revealed to be the result of some risk directly attributable to the employment. Injuries resulting from assaults of that character are compensable in Missouri ....
2nd: Those committed in the course of private quarrels that are purely personal to the participants. Injuries resulting from assaults of that character are non-compensable in Missouri....
3rd: Irrational, unexplained or, accidental assaults of so-called ‘neutral’ origin, which, although they occur ‘in the course of’ the victim’s employment cannot be attributed to it on any more rational basis than the employment afforded a convenient occasion for the attack to take place.

Prior to 1969, cases in the third category were non-compensable. Kelley v. Sohio Chemical Co., 392 S.W.2d 255, 256-7 (Mo. banc 1965). In 1969, the statute was amended to define accident to include an unprovoked assault on an employee. Its obvious intendment was to make cases in the third class compensable. Person v. Scullin Steel Co., 523 S.W.2d 801, 804 (Mo. banc 1965). In Person, the Supreme Court also held that unprovoked assaults committed in the course of private quarrels were still non-compensable.

A claimant’s accident must both arise out of and in the course of employment. Section 287.120.1 RSMo 1978. An injury “arises in the course of” employment if it occurs within the period of employment at a place where the employee may reasonably be, while engaged in the furtherance of the employer’s business or if he is injured in doing an act reasonably incidental to the performance of his duties, of which his employer might reasonably have knowledge or reasonably anticipate. Daniels v. Krey Packing Co., 346 S.W.2d 78, 83 (Mo.1961); Zahn v. Associated Dry Goods, 655 S.W.2d 769, 772 (Mo.App.1983). An injury “arises out of” the employment if (1) the injury results from a natural and reasonable incident of the employment, a rational consequence of some hazard connected therewith or a risk reasonably inherent in the particular conditions of the employment and (2) if the injury is the result of a risk peculiar to the employment or enhanced thereby. Zahn v. Associated Dry Goods Corp., 655 S.W.2d 769, 773 (Mo.App.1983). The precise injury need not have been anticipated so long as there was a rational consequence of some hazard connected with employment. Toole v. Bechtel Corp., 291 S.W.2d 874, 880 (Mo.1956).

In Allen v. Dorothy’s Laundry and Dry Cleaning Co., 523 S.W.2d 874, 878-79 (Mo.App.1975), the court held if an employee “in the course of employment,” is the victim of a “neutral,” unprovoked assault then as a matter of law the assault arises “out of” the employment. In the case at bar, the Commission found the assault arose in the course of employment, was unprovoked and therefore compensable. The Commission made no finding that the injury “arose out of” the employment apparently concluding that finding the assault was unprovoked was sufficient in light of Allen.

The Commission’s finding that the injury arose “in the course of” employment is not challenged by the employer and is supported by the record. Dillard was on the job site during work hours. His action in approaching the driver of the car who had stopped under these circumstances was incidental to the performance of his duties and could reasonably have been anticipated by his employer.

The Commission apparently concluded that the assault fit into the third category of cases — those of “neutral, unexplained” origin and after determining that the assault was unprovoked concluded it was compensable. We do not believe this assault was of “neutral” origin. Assaults of neutral origin refer to assaults which “although they occur in the course of the victim’s employment, cannot be attributed to it on any more rational basis than the employment afforded a convenient occasion for the attack to take place.” Person, 523 S.W.2d at 804. Cases in which the assault has been classified of neutral origin include: Zahn v. Associated Dry Goods, 655 S.W.2d 769, 772 (Mo.App.1983) (employee assaulted and raped in employer’s parking garage); Allen v. Dorothy’s Laundry and Dry Cleaning Co., 523 S.W.2d 874 (Mo.App.1975) (employee shot by berserk rifleman for no apparent reason); Ries v. De-Bord Plumbing Co., 186 S.W.2d 488 (Mo.App.1945) (employee assaulted by a stranger with no apparent motive); Kelley v. Sohio Chemical Co., 392 S.W.2d 255 (Mo. banc 1965) (employee was struck from behind in her office for no discoverable reason); Liebman v. Colonial Baking Co., 391 S.W.2d 948, 951 (Mo.App.1965) (employee assaulted from behind by drunken stranger without motive). This assault does not resemble the “neutral” assaults recognized above. This assault was directly the result of a confrontation which arose from the manner in which the employee had been performing his duties (standing in the street). The employment did not, merely afford a convenient occasion for the attack to take place.

Where the facts are not significantly disputed, the issue of whether decedent’s death arose out of the employment is a question of law. Blatter v. Missouri Department of Social Services, 655 S.W.2d 819 (Mo.App.1983). We believe the evidence established as a matter of law that the injury “arose out of” the employment. The assault on decedent was the outgrowth of friction generated on the job and was a rational consequence of a hazard of working in the streets. The risk of being hit by an automobile or barely escaping such a collision was a risk inherent in decedent’s job. Decedent’s co-worker testified:

These things occur in general ... some cars yield to pedestrians, other cars don’t .... That’s a common occurrence when working in the street on a regular basis that cars don’t respect the position of workers in the street, even [when the employee is] vested some of them will come close to hitting them.

If assailant’s automobile had hit and killed decedent while he was standing in the street, the accident would clearly have “arisen out of” the employment. See Blatter v. Mo. Dept. of Social Services, 655 S.W.2d 819 (Mo.App.1983); Wyatt v. Kansas City Art Institute, 229 Mo.App. 1166, 88 S.W.2d 210, 211 (1935). Moreover, it has been held that an assault upon an employee which arises from a confrontation with another driver after a vehicular accident arises “out of” the employment. Sanders v. Jarka Corp., 1 N.J. 36, 61 A.2d 641 (1948). In Sanders, the court quoting Geltman v. Reliable Linen & Supply Co., 25 A.2d 894, 897 (N.J.App.1942) stated:

The peril was one inseparable from the line of duty.... The accident was not the consequence of a purely personal quarrel unrelated to the employment.... Hot tempered controversies respecting the management of motor vehicles on our busy thoroughfares are not at all uncommon. What happened was an accident directly attributable to a risk of the highway to which the employment exposed the victim.

In Geltman, the employee was forced off the road and assaulted by a motorist “in resentment of the manner in which [the employee] had driven his automobile.” 25 A.2d at 897. See Augelli v. Rolans Credit Clothing Store, 33 N.J.Super. 146, 109 A.2d 439 (N.J.App.1954) (employee assaulted by driver of another car for blowing his horn). The fact that this involved a pedestrian — driver confrontation does not make the observation noted in Geltman any less appropriate. This assault was the outgrowth of friction generated by the performance of the decedent’s duties. It arose out of the decedent’s employment.

The Commission found that the “assault did not originate from a private quarrel.” We believe there was substantial evidence to support such a finding. Here, the altercation clearly arose from frictions generated by the work related duties of the decedent unlike the assaults in Person v. Scullin Steel Co., 523 S.W.2d 801 (Mo. banc 1975) (quarrel and assault arose out of failure of claimant to bring fellow employee to work); Freeman v. Callow, 525 S.W.2d 371 (Mo.App.1975) (assault arose out of a quarrel over attacker’s wife); Foster v. Aines Farm Dairy Co., 263 S.W.2d 421 (Mo.1953) (quarrel over personal, family and business matters, unconnected with employment. In the instant case there was no evidence the unknown assailant and the decedent knew each other; had any prior disputes or their paths had ever crossed before this unfortunate encounter.

Employer argues that the decedent provoked the assault and challenges the Commission’s finding that he did not. Even though we have concluded the “neutral,” unprovoked assault situation is not presented in this case, nonetheless, an aggressor is not entitled to compensation for injuries caused by his own threats and demonstration of assault upon another. Staten v. Long-Turner Construction Co., 185 S.W.2d 375 (Mo.App.1945); Stephens v. Spuck Iron & Foundry Co., 214 S.W.2d 534 (Mo.1948). In Staten, the court held the claimant was not entitled to compensation because he had been the aggressor. There the evidence established:

[Claimant] said: “If you try and stop me, I’ll hit you in the chin, using a vile and unprintable epithet; that he then advanced towards Campbell in a threatening manner, shook his fist under his nose, and threatened to bust him in the jaw; Campbell then picked up a wrench and struck [claimant] which caused his injury.” 185 S.W.2d at 379.

In Stephens v. Spuck Iron & Foundry Co., 214 S.W.2d 534, 539 (Mo.1948), the court affirmed the Commission’s finding that the assault on claimant by a fellow employee occurred in the course of and arose out of the employment, even though claimant had directed profanity at his attacker. The court stated, “In the present case it cannot be said as a matter of law that [claimant] was the aggressor. He used offensive language it is true, but ‘language or epithets, however offensive will not justify or excuse an assault.’ ”

In the case at bar, while the confrontation was described as “heated,” the evidence establishes that decedent was unarmed and made no threatening gestures. The assault upon him was therefore unprovoked as a matter of law.

In employer’s second point, it alleges the Commission erred in shifting the burden of proof to employer. We do not so read the Commission’s findings. See Macalik v. Planters Realty Co., 144 S.W.2d 158 (Mo.App.1940).

In claimant’s cross appeal, the attorneys allege that the award of $12,000.00 for attorney’s fees was not a fair and reasonable allowance for services; that it was so unreasonable and inadequate that it constituted an abuse of discretion. Section 287.260 RSMo 1978 provides that, “[a]ll attorney’s fees for services ... shall be subject to regulation by the division or commission and shall be limited to such charges as are fair and reasonable.” The Commission’s decision may be reversed only if it can be said as a matter of law that the allowance was so inadequate and so unreasonable to constitute an abuse of discretion. Sanderson v. Producer’s Commission Assn., 241 S.W.2d 273 (Mo.App.1951).

The record establishes that claimant initially retained attorneys on a 25% contingent fee basis. After the referee ruled in favor of the employer, claimant agreed to compensate attorneys on the basis of a 50% contingent fee contract, but subjected the agreement to approval by the Commission. The Commission awarded $12,000.00 in attorney’s fees which attorneys assert is inadequate.

Attorneys have cited In re Estate of Petzold, 663 S.W.2d 400 (Mo.App.1983) in support of their contention that the Commission abused its discretion and should have granted a 50% attorney’s fee. In Petzold, this court held that the probate court erred in not allowing the full amount of attorney’s fees to which the legatees had consented. We find Petzold inapplicable to the facts of this case. In Petzold, the court emphasized that the consent was given by adult legatees who had received independent legal advice. In the case at bar, the interests of a minor child are at stake and no independent legal advice was sought or received. More importantly, we find nothing in Petzold, a probate case, which would make its holding applicable to a workmen’s compensation proceeding.

We conclude the award of attorney’s fees is not inadequate. This was not an exceptionally complex worker’s compensation case. There was no medical testimony necessary. Claimants only presented three witnesses. Wife had to testify to her marriage and support by the decedent. Decedent’s two co-workers also testified. Whether claimants were entitled to benefits was essentially a question of law. We have carefully examined the entire record and find the Commission did not abuse its discretion.

Affirmed.

GAERTNER and KAROHL, JJ., concur.

      . They were required to locate all objects within the city right-of-way on Lemp Street.


author: GAERTNER, Judge.

text:
    Stanley M. ROSENBLUM, Trustee, v. Antoinette GIBBONS, respondent, and Patrick Gibbons, Lawrence Gibbons, and Elizabeth Gibbons Vasquez, Appellants.
    No. 48170.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 31, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 13, 1985.
    Application to Transfer Denied April 2, 1985.

      Francis L. Ruppert, Clayton, for appellants.
    Merle L. Silverstein, Clayton, for Trustee.
    Lawrence J. Lee, John, L. Sullivan, St. Louis for respondent.
   GAERTNER, Judge.

At issue here is the validity of a comprehensive testamentary plan of Harold J. Gibbons. On March 20, 1978, Gibbons executed a will and a trust indenture. The will, after providing for the payment of debts and the distribution of tangible personal property, provided for the entire residual estate to be added to the corpus of the trust simultaneously created. The trust indenture recited, as a premise, that Gibbons, the grantor, had caused his interest in the retirement and family protection plan of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America to be made payable to Stanley M. Rosenblum, as trustee named therein. The creation of the trust was stated to be in consideration of this premise “and for One Dollar ($1.00) and other valuable considerations, receipt of which is hereby acknowledged.” The indenture anticipated the receipt by the trustee of the proceeds of the retirement plan upon the death of the grantor and other assets, including the proceeds of insurance policies on the life of the grantor. The trust was revocable and provided for grantor’s power to amend in whole or in part by written instrument. On June 19, 1981, a second trust indenture was executed. The language of this instrument, including the named trustee, the corpus and the powers of the trustee, is identical to the 1978 indenture. The only material change consists in the provisions for distribution of assets to the beneficiaries of the trust. The dispositive provisions of the 1978 instrument were more favorable to grantor’s children, those of the 1981 instrument favored his wife. The 1981 instrument does not expressly revoke or refer in any way to the 1978 instrument. On the same date, Gibbons executed a “beneficiary designation and benefit payment statement” directing the trustees of the retirement plan to pay death benefits to the trustee named in the indenture of June 19, 1981 upon his death prior to his retirement.

Gibbons died on November 17, 1982. The trustee received $438,752.04 from the retirement plan and $15,000.00 from a life insurance policy. On June 9, 1983, the trustee filed this action for declaratory judgment. He alleged that a dispute existed between the wife and the children regarding which of the two trust indentures established the lawful trust in which to receive and to administer the funds from the retirement plan. Naming the wife and children as defendants, the trustee prayed for a judicial declaration of which of the two trusts indentures was valid. The wife, by counterclaim and crossclaim, sought a declaration that the 1981 trust indenture was a valid amendment of the 1978 trust. The children prayed for a declaration that both trusts' were null and void.

On November 14, 1983, the cause was tried before the court without a jury. On. November 18, 1983, the trial court issued findings of fact and conclusions of law, holding the 1981 trust instrument to be a valid amendment of the 1978 trust. The children appeal contending the trust was invalid as an inter vivos trust because it was not funded before the death of the grantor, that it was not a testamentary trust because not executed before witnesses as required by § 474.320, RSMo.1978, and alleging trial court error in the admission in evidence of the testimony of Stanley Rosenblum regarding the employment of Gibbons at the time of his death. We affirm.

Under Murhpy v. Carron, 536 S.W.2d 30 (Mo.banc 1976), the judgment of the trial court in a bench-tried case is to be sustained “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Id. at 32. The judgment of the trial court must be affirmed if it is correct on any theory. Washington University Medical Center v. Komen, 637 S.W.2d 51, 53 (Mo.App.1982). Within these narrow parameters we undertake an analysis of the testimonial and documentary evidence.

THE 1978 TRUST

The children dispute the finding of the trial court that the 1981 trust was an amendment of the 1978 trust and argue that both were invalid. This argument is predicated upon their contention that neither of the trusts was established with a then existing identifiable corpus actually delivered, assigned or conveyed to the trustee. The elements essential to the establishment of an inter vivos trust are set forth in Webb v. St. Louis County National Bank, 551 S.W.2d 869, 875 (Mo.App.1977):

It has long been held that “to establish a valid express trust inter vivos, there must be (1) a beneficiary, (2) a trustee, (3) a trust res so sufficiently described or capable of identification that title thereto can pass to the trustee, (4) actual delivery of the corpus, its character considered or a legal assignment of the same to the trustee actually conveying present title by the owner under the circumstances which unequivocally disclose an intent to hold it for the use of another.”

Here, the children seize upon the fourth requirement and assert a two-fold argument in support of their contention that there was no actual delivery, assignment or conveyance to the trustee. They argue that because the corpus of the trust consisted solely of the retirement benefits which were not to be received until the death of Gibbons before his retirement, actual delivery was occasioned by his death and, therefore, the trust was testamentary rather than inter vivos. Secondly, they assert that the designation of the trustee as beneficiary was not a conveyance or assignment as it vested no title in the trustee, but created a mere expectancy. In support of this latter contention, they rely upon Bell v. Garcia, 639 S.W.2d 185, 191 (Mo.App.1982) wherein this court expressed the general rule that the beneficiary of a life insurance policy, subject to change by the insured, does not possess a vested right to the proceeds of the policy, but only a conditional interest or expectancy subject to termination. Their reliance on Bell is misplaced. The rule expressed therein was stated in support of the conclusion that a first beneficiary of a life insurance policy possessed insufficient interest to complain of noncompliance by the insured with policy requirements regarding the form and manner of effecting a change of beneficiary. Waiver of such noncompliance is a matter solely within the purview of the insurer; the original beneficiary, having only an expectancy subject to divestiture, has no standing to assert noncompliance with formalities. Bell is not authoritative regarding the question of whether or not a beneficiary designation is a sufficient delivery of an identifiable trust res to constitute the funding of the trust.

We are cited to no Missouri decision and independent research has not disclosed any Missouri case which has ruled upon this precise question. In Scott on Trusts, 3rd edition, vol. 1, § 57.3 (1967), the issue of funding an insurance trust by means of beneficiary designation is discussed.

A question arises where the insured has reserved the power to change the. beneficiary of the policy and other incidents of ownership, and perhaps in addition the power to change the beneficiaries of the trust. Is the trust invalid as a testamentary disposition? It is arguable that the trust does not arise until the death of the insured, that his death is a condition precedent to the creation of the trust, and that therefore the disposition is testamentary. The answer is, however, that the beneficiary of the policy as soon as he is named trustee holds his rights as beneficiary of the policy in trust. The mere fact that those rights can be terminated at any time by the insured, and that the rights of the beneficiaries of the trust are enjoyable only after the death of the insured, and that the trustee has no active duties until the death of the insured, does not prevent a trust from arising immediately. It is not a disposition subject to the condition precedent of the death of the insured, is not a mere expectancy, but is a trust which is subject to revocation or modification during the life of the insured. It is true that until the death of the insured it is a pretty thin trust. The difficulty in upholding the trust, however, is no greater than in upholding the rights of the beneficiary of an insurance policy where no trust is involved but where the insured reserves power to change the beneficiary. A policy of life insurance where the' insured has reserved the right to change the beneficiary is in a sense testamentary in character, but the courts have never had any difficulty in permitting the beneficiary to recover the proceeds on the death of the insured if he had not in fact changed the beneficiary. The fact that the policy is payable to a beneficiary as trustee for others makes it no more testamentary than if it were payable to the beneficiary absolutely. Moreover, the fact that the insured may have reserved power not only to change the beneficiary of the policy but also to change the beneficiaries of the trust, or otherwise to modify the terms of the trust, would seem to make the disposition no more testamentary. The danger of fraud which lurks in ordinary unattested testamentary dispositions is not serious in these cases.
The courts have therefore had no difficulty in upholding insurance trusts even though they are not executed with the formalities necessary for a will.

That the principles enunciated in this quotation have long been recognized in Missouri is illustrated by Webb v. St. Louis County National Bank, supra. The facts in Webb differ only slightly from those in the instant case. A trust was created for the specific purpose of receiving assets from other trusts created by the grantor’s parents in the event he should predecease them. The nominal sum paid by the grant- or to the trustee was recited to be $100.00. In holding a valid inter vivos trust was established, this court noted the absence of any authority requiring a more substantial res than that received by the trustee.

Once the trust has been created the enjoyment of its benefits may be postponed. Gardner v. Bernard, 401 S.W.2d 415, 421[7] (Mo.1966). As pointed out in Sims v. Brown, 252 Mo. 58, 158 S.W. 624 (1913) it matters not whether the postponement of the enjoyment be measured by the life of the settlor, the life of a third person or by some other measure. It is also universally recognized that the settlor may reserve the right to revoke the trust without affecting its validity. The title and interest vests subject to divestiture only by revocation and if no revocation is made the title and interest become absolute. Sims v. Brown, 1. c. 628. Neither the size of the res at the time the trust was created, nor the postponement of the enjoyment of the trust by the cestui qui trust in this case, serve to invalidate the trust.

Webb v. St. Louis County National Bank, 551 S.W.2d at 875.

If the size of the res when the trust is declared is irrelevant to its validity, the difference between the $100.00 in Webb and the $1.00 here is likewise irrelevant. Courts have never hesitated to find the recital of a $1.00 consideration for a conveyance of real estate between strangers to be sufficient in and of itself. Frey v. Onstott, 357 Mo. 721, 210 S.W.2d 87, 93 (1948). We see no reason why a similar recital should be held insufficient to establish a trust which constitutes the corner-stofae of a grantor’s comprehensive plan of caring for the needs of his family after his death.

Moreover, even if the children’s contention of invalidity as an inter vivos trust were sustainable, the trust would then be validated as a testamentary trust by reason of incorporation by reference in Gibbons’ will. Other than clothing, jewelry, automobiles and household furnishings, the entirety of Gibbons’ estate is devised under the will to the trustee named in the trust indenture executed simultaneously with the will. The trustee is also the sole beneficiary of the proceeds of the pension plan and the $15,000.00 life insurance policy. If the trust be declared invalid, his residuary estate, the pension plan proceeds and the insurance money would pass to his survivors under the laws of descent and distribution as an intestate estate. Traders National Bank of Kansas City v. Levine, 528 S.W.2d 497 (Mo.App.1975). In addition to the presumption against partial intestacy where a will has been executed, “which is particularly strong where the subject of the gift is the residuary estate,” Id. at 499, Gibbons, in his will, expressly provided against such a possible contingency. The will provides “it is not my intention to incorporate said indenture of trust hereunder as a probate trust unless it is necessary to do so to prevent my property from being disposed of as intestate property.”

This concept of conditional incorporation by reference was recently examined by this court in Lorch v. Mercantile Trust Company National Association, 651 S.W.2d 540 (Mo.App.1983). In Lorch the residuary clause of a will provided for the “pouring over” of assets into a revocable inter vivos trust, if the trust were then in existence. If not, the trust agreement was to be incorporated by reference into the will. “When a will makes a bequest to an inter vivos trust the terms of which are not set forth in the will, the bequest to the trust is valid only if the trust is incorporated by reference into the will or is a fact of independent significance, unless there is a statute to the contrary.” Id. at 543. We held the conditional incorporation by reference inapplicable because the trust, funded only by $1,000.00 and the residuary estate, was valid as a fact of independent significance. While we reach the same conclusion here, were it otherwise the trust would nevertheless be valid as a testamentary trust expressly incorporated by reference into the will. See also St. Louis Union Trust Company v. Blue, 353 S.W.2d 770, 777 (Mo.1962).

THE 1981 TRUST

Having established the validity of the 1978 inter vivos trust, we turn to the question of the effect of the 1981 trust indenture. The parties have adopted three divergent positions. The children contend both trusts are invalid. The trustee posits the existence of two trusts, one to receive and administer the residuary estate under the provisions of the will naming the trustee of the 1978 trust as devisee, the other to receive and administer the proceeds of the pension plan and the life insurance policy. The wife contends the 1981 trust indenture was merely an amendment of the 1978 trust. The trial court adopted the wife’s contention. We agree.

Except for differences in the dis-positive provisions, the two instruments are virtually identical. The trustee and his powers are the same, the provisions for administration and management are the same, and, most importantly, the corpus is the same. Tacit revocation of a prior will by the execution of a later will, even though not expressed therein, is based upon the patent impossibility of administering two estates each composed of the same assets. A similar rule applicable to trusts is set forth in 89 C.J.S. Trusts § 97, p. 891 (1955):

Modification or alteration, under a reservation of power, may take the form of a supplemental trust indenture, complete in itself and intended as a substitute for the original, so that the only rights arising are those created under the supplemental indenture.

The 1978 trust indenture provided for amendment by the grantor simply by a written instrument delivered to the trustee and executed by the grantor and the trustee. It is undisputed that the 1981 trust indenture satisfied these formalities. We are referred to and find no Missouri decision on this issue. Other states have followed the rule set forth above. In re Huested’s Estate, 403 Pa. 185, 169 A.2d 57 (1961); Lambdin v. Dantzebecker, 169 Md. 240, 181 A. 353 (1935); State v. Banker’s Trust Company, 105 Vt. 220, 164 A. 377 (1933). The utter impossibility of applying different dispositive provisions to a single corpus compels the conclusion that the grantor’s intent was the later instrument replace and supplant the former, even though revocation of the former is not specifically expressed.

Accordingly, we find the 1981 trust indenture, which complied with the form and manner of exercising the right to amend the 1978 trust indenture, constituted an amendment to the prior indenture and was the only valid and subsisting trust at the time of grantor’s death.

ALLEGED EVIDENTIARY ERROR

The children’s final point on appeal alleges trial court error in admitting the testimony of trustee Rosenblum that Gibbons had not retired at the time of his death. Their objection to this testimony was that it constituted hearsay and that Rosenblum was disqualified as a witness by reason of the Deadman’s Statute, § 491.010, RSMo.1978. We need not decide the question regarding the propriety of these objections because the evidence was irrelevant to the issues, as framed by the pleadings, which related solely to the validity or invalidity of the two trust indentures. The matter of Gibbons’ retirement prior to his death arises only from the language of the beneficiary designation filed with the trustees of the retirement plan. Nothing before us reveals the import of what appears to be a condition imposed upon the payment of benefits under the plan. Nevertheless, the provision is obviously a matter which concerns only the trustees of the retirement plan and the designated beneficiary. The trustees made payment of the death benefits to the designated beneficiary, thereby waiving any possible noncompliance with the condition. Such noncompliance, if any, could not affect the validity or invalidity of the trust indentures.

Provisions of insurance policies and retirement systems relating to the form and manner of designating or changing beneficiaries are made for the benefit of the insuror or the retirement system, so that they may be protected from multiple liability. Bell v. Garcia, 639 S.W.2d at 190. The insuror or the retirement system is free to waive noncompliance with such provisions. However, even if we disregard the waiver in this case and assume the designation of the trustee as beneficiary fails, the benefits of the retirement plan could only pass to Gibbons’ estate and, by reason of his will, pour over into the trust. The ultimate result would be the same. Accordingly, if any error was committed in receiving the testimony, it was harmless.

The judgment is affirmed.

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

      . The principles enunciated in Webb and the cases cited therein have now been incorporated into the statutory law of Missouri. Section 456.-030, RSMo.1983, is Missouri’s first statutory recognition of the growing use of life insurance trusts. It provides, in pertinent part, "it is not necessary to the validity of such trust agreement or declaration of trust that it be funded or have a corpus other than the right, which need not be irrevocable, of the trustee or trustees named therein to receive such [life insurance policy] proceeds as beneficiary.”


author: CROW, Judge.

text:
    STATE of Missouri, Respondent, v. Lazaro Alor CORONA, Appellant.
    No. 13510.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 11, 1985.
    Motion for Rehearing or Transfer Denied Feb. 1, 1985.
    Application to Transfer Denied April 2, 1985.

      Lew A. Kollias, C.J. Larkin, Jefferson City, for appellant.
    John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   CROW, Judge.

Appellant (“Corona”), charged with committing the class B felony of burglary in the first degree, § 569.160.1(3), RSMo 1978, by unlawfully entering an apartment occupied by B_ J. P_ (“complainant”) “for the purpose of committing forcible rape therein,” was found guilty as charged by a jury, which assessed punishment at seven years’ imprisonment. The trial court imposed that sentence and Corona appeals, briefing two assignments of error. The first is that the trial court erred in denying Corona’s motion for judgment of acquittal at the close of all the evidence because the evidence “was insufficient as a matter of law to sustain a charge of burglary with intent to commit forcible rape in that the evidence failed to establish any intent to commit the felony of rape, an essential element of the charge.” The second is that the trial court erroneously received evidence of Corona’s prior convictions.

In considering Corona’s first point, we view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences to be drawn therefrom, and we ignore contrary evidence and inferences. State v. Guinan, 665 S.W.2d 325, 327 (Mo. banc 1984). The test is whether the evidence, viewed in that light, is such that a rational trier of fact could have found beyond a reasonable doubt that Corona was guilty. State v. Bonuchi, 636 S.W.2d 338, 340[1] (Mo. banc 1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 446 (1983); Jackson v. Virginia, 443 U.S. 307, 322-325, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560, 576-77 (1979).

The record of Corona’s activities on the date in question (Saturday, December 18, 1982) begins at 1:20 a.m., when he was issued a traffic citation by Police Officer Tom Gann at the intersection of Glenstone Avenue and Commercial Street in Springfield. Corona, driving a “blue Mercury” without license plates, was ticketed for “running a flashing red light.”

Gann noticed three things that later became significant: (1) Corona had a “slight odor of intoxicants” about his person that “smelled like beer,” (2) Corona had no injuries on his hands, and (3) the taillights of Corona’s Mercury were undamaged.

After detaining Corona “5 to 7 minutes, something like that,” Gann permitted Corona to drive away in the Mercury.

Less than a half hour later, at 1:53 a.m., Teresa Bartkoski, asleep in her apartment at 2103 South Ingram Mill Road in Springfield, was awakened “by a noise outside.” Ms. Bartkoski, whose apartment, according to the evidence, is between four and five miles from the site where Corona had been stopped by Officer Gann, looked outside and observed a man pick up a hat out of a parked automobile and put the hat on his head. He then walked to an apartment complex at 2120 South Ingram Mill, across the street from Ms. Bartkoski’s apartment, and disappeared.

Ms. Bartkoski, who was “kind of alarmed,” noticed that the automobile, a “late model Mercury,” had no license tag.

Complainant, who lived alone in a second floor “studio apartment” in the complex at 2120 South Ingram Mill, was asleep in bed, her outside door secured by a dead bolt and two chains, when she was awakened by a knock at the door, 15 to 20 feet from her bed. As she arose to investigate, the door “was busted open” and a man ran inside toward her. Complainant “just started screaming instantly and started fighting.”

Complainant, clad in a nightgown and “underpants,” was knocked “back across the bed on my back.” At that point, explained complainant, “I was fighting him to keep him off of me, and he grabbed my legs and pulled me down on the floor.” Then, in complainant’s words: “I was slapped around in the head. Knocked around in the head. I couldn’t keep my hands and fists up in front of me and was slugging and screaming at the same time. ... I kept slugging and fighting. And finally, his hand — his hand come down over my face. His hand got in my mouth, and I bit. I bit as hard as I could. At this time, he yelled, screamed, and ran out the door. I don’t know what he screamed. ... It sounded like a male voice....”

Although no lights were on in her apartment, complainant was able, because of an outside light that shone in, to see that the intruder was wearing a “French cap” and a striped sweater. She could not, however, see his facial features or determine whether he was black or white.

After the assailant fled, complainant turned on a light and looked at the door. She saw “that the whole wooden frame area about a foot-and-a-half long where all the locks was on the outside of the door there had been busted off and was just swinging in the air.” This made it impossible for complainant to close the door.

Complainant “was just so panicky” that she dialed the telephone operator, who put the call through to the police. Complainant fixed the time of the call as “a couple of minutes after 2:00.” During the call, complainant looked toward the area where the fight had occurred and saw “a beer bottle in the floor that was never there before.”

Ms. Bartkoski, who had evidently been maintaining surveillance since observing the man at 1:53, saw the same man run toward the Mercury, hat in hand. Upon reaching the Mercury, the man jumped in, throwing the hat in the back. Then, according to Ms. Bartkoski, the man “backed out and proceeded to hit my car,” apparently breaking a taillight on the Mercury. The Mercury sped north on Ingram Mill Road. Ms. Bartkoski immediately reported the incident to police by telephone, fixing the time of her call as “a little after 2:00.”

Police Officer Gary Dishman received a report of the “attempted rape” about 2:05 a.m., and shortly thereafter observed a Mercury, carrying no license plates, traveling north on Glenstone Avenue. As the Mercury matched the description he had been furnished, Dishman pursued it, stopping it at a point which, according to the testimony, was some two miles from complainant’s apartment.

Corona was the driver of the Mercury, and Dishman noticed “what appeared to be a fresh injury” to Corona’s right thumb. Asked why he believed the injury was fresh, Dishman replied, “Well, it had dried blood on it, small amount of dried blood. It hadn’t been, like, cleaned off or anything.”

Dishman also observed that a section of taillight had been broken on the right rear of the Mercury. According to Dishman, “There was some small pieces of the taillight still laying inside the housing of the taillight section where they hadn’t fallen out yet.” Dishman looked inside the Mercury and retrieved a “cap” from the “rear floorboard.”

At some point during these duties, Dish-man placed Corona under arrest.

Officer Gann, who had ticketed Corona about an hour earlier, arrived at the arrest scene and noted the broken right taillight on the Mercury. Gann also observed that Corona was wearing the same striped pullover shirt that he had been wearing when Gann issued the traffic citation. On Corona’s right thumb, Gann saw “what appeared to be a fresh laceration” that had not been there at the time of their earlier encounter.

Ms. Bartkoski, escorted to the arrest scene by a police officer, identified Corona’s Mercury as the automobile that had struck her car at her apartment, specifically noting the Mercury’s broken taillight. She noticed that Corona, who was in a “paddy wagon,” appeared to be wearing the same shirt as the man she had seen in front of her apartment.

Corona was taken to police headquarters where photographs were taken of his right thumb. During that process, Sergeant Gary L. Kissinger overheard Corona say “that his dog had bitten him.” Corona, according to Kissinger, “demonstrated by holding his thumb up to his mouth and pretending to bite down on his thumb as if the — in the manner in which the dog had bitten him.”

Officer Dishman, also present in the booking room while Corona was there, testified that Corona “indicated he had cut his thumb with a knife.”

During daylight hours on the morning of December 18, Ms. Bartkoski went to police headquarters and was shown the hat found by Officer Dishman in Corona’s Mercury and the shirt Corona had been wearing when arrested. She identified both as articles worn by the man she had seen in front of her apartment.

Complainant also went to police headquarters on December 18 and was shown Corona’s hat and shirt. She testified the hat appeared to be the same one worn by her attacker and that the shirt looked like the one he had worn. Upon viewing Corona, complainant concluded he was the “same sized person” as the assailant, with the same hair length.

On the afternoon of December 18, Corona was questioned by Detective Don Pippin and Corporal Truly Applegate about his right thumb. Corona stated he had cut it with a knife at work.

In his defense, Corona testified he did not break into complainant’s apartment and that at the time of his arrest he was en route home, having eaten a late snack at a restaurant, the name of which he was unable to recall. Asked whether he knew complainant, Corona admitted that from August of 1981 until the summer of 1982, a period of about nine months, he had resided in an apartment at the complex where complainant lived, “around 3 doors from her.” According to Corona, he had a girl friend who lived in the apartment next door to complainant.

Corona insisted that neither he nor his Mercury was near complainant’s apartment on December 18, and that the taillight was broken when he purchased the Mercury four or five months previously.

In arguing his first point, Corona does not dispute that there was evidence to establish that he broke into complainant’s apartment and used force upon her. He maintains, however, that there was no evidence that his actions were intended to force complainant to submit to sexual intercourse. Citing State v. Asberry, 559 S.W.2d 764, 767[3] (Mo.App.1977), Corona asserts the State was obliged to prove that when he entered complainant’s apartment, he intended (a) to have sexual intercourse with her, and (b) to use whatever force was necessary to overcome her resistance. See State v. Brown, 217 S.W.2d 546, 548[2-6] (Mo.1949); MAI-CR 2d 23.50 (1-1-79). Emphasizing the absence of evidence of “sexual overture,” Corona contends there was no proof that the attack was sexually motivated. He correctly points out that complainant testified her assailant neither touched her in a sexual manner nor made any sexual comment. There was likewise no testimony that the attacker made any effort to remove or grab complainant’s clothing. Indeed, complainant testified: “I don’t know if he was there to have sex with me or kill me. I was fighting him. I was terrified out of my mind.”

Corona refers us to several cases in which convictions for assault with intent to commit rape were reversed because of failure of proof that the attacker’s purpose was to have sexual intercourse with the victim forcibly and against her will, by using such 'force as would overcome her resistance. They include State v. Hamm, 577 S.W.2d 936 (Mo.App.1979); State v. Williams, 324 Mo. 179, 22 S.W.2d 649 (1929); State v. McChesney, 185 S.W. 197 (Mo.1916), and State v. Fleming, 177 S.W. 299 (Mo.1915). Those cases, however, do not present the exact issue that confronts us here. There was abundant evidence in each of those cases that the objective of the respective defendants was to have sexual intercourse with the victims. The proof failed because there was insufficient evidence to establish that the defendants meant to accomplish their purpose by such force as was necessary, and notwithstanding any resistance by their victims. That is, the proof was too weak to support a finding that the defendants intended, if their importunings for sexual intercourse were rebuffed, to nonetheless have their way with their victims by overpowering them, regardless of the force required.

Here, the crucial issue, in our view, is not whether Corona’s violent attack on complainant manifested an intent to overcome her resistance. We believe a rational trier of fact could find that when Corona burst into complainant’s apartment and simultaneously assaulted her, he meant to accomplish his objective — whatever it was — by overcoming complainant’s resistance and subduing her. A rational trier of fact could have further determined that complainant’s resistance proved to be stronger than Corona expected, and that because he was unable to overpower her as swiftly as he had anticipated, and because he feared her outcries would bring others to her aid, he decided to abandon his mission and flee before rescuers arrived. See State v. Petrechko, 486 S.W.2d 217, 218-19[4] (Mo.1972).

That being so, the only substantial issue regarding the sufficiency of the evidence in this case is whether a rational trier of fact could find that the purpose of Corona’s attack on complainant was to compel her to submit to sexual intercourse.

On that issue, it is noted in State v. Roden, 674 S.W.2d 50, 53[2] (Mo.App.1984), that such intent may, and generally must, be established by circumstantial evidence, for as a rule it is not susceptible of direct proof. The evidence need not establish intent as a matter of law; it is sufficient that it authorizes such a finding by the jury. Id. at 53[3]; Petrechko, 486 S.W.2d at 218-19[3],

The Missouri case most factually akin to the instant case is State v. Selle, 367 S.W.2d 522 (Mo.1963), a conviction for assault with malice aforethought by force likely to produce death or great bodily harm, with felonious intent to ravish and rape, § 559.180, RSMo 1959, now repealed, Laws 1977, pp. 662-63. There a 19-year-old female, asleep on a couch in her home, was awakened about 4:45 a.m., when the defendant, crouching on the floor, started to pull a cover off her. As she looked at him, he struck her and she began screaming. He continued to hit her and she continued her outcries. Alarmed by the noise, her parents rushed to the room, but by then the defendant was gone. Doors leading outside were discovered open, although they had been closed the night before. There was no evidence that anything of value had been taken or disturbed. Rejecting the defendant’s contention that there was no evidence from which an intent to rape could be inferred, the Supreme Court of Missouri held that the jury could have reasonably rejected any inference that the defendant was motivated by an intent to steal and could have reasonably found that the assault was accompanied by an intent to rape.

In addition to the circumstances of the intrusion and assault, there are other similarities between Selle and the instant case.

In both cases, there was no prior relationship between the defendant and the victim, although there was evidence in each case that the defendant knew of the victim before the assault occurred. In Selle, the defendant, a few days before the assault, had been in the office of a doctor where the victim was employed. In the instant case, Corona had once lived in an apartment three doors away from complainant’s apartment, and Corona’s girl friend had occupied the apartment next door to complainant’s. From that evidence, the jury could reasonably infer that Corona knew not only where complainant resided, but also that she lived alone.

In Selle, the intrusion occurred at a time when the victim could be expected to be in bed. The same was true in the instant case. Corona’s forcible entry occurred shortly before 2:00 a.m., at a time when no lights were burning in complainant’s apartment. The jury could reasonably infer from this that Corona expected to find complainant alone and in bed.

As in Selle, there was no evidence in the instant case of any attempt to take anything from complainant’s apartment, and there was likewise no evidence that Corona had any grudge against complainant that would have motivated him to kill or injure her. If, as held by our Supreme Court, the evidence in Selle was sufficient to support a finding that the defendant acted with intent to rape the victim, the evidence in the instant case is likewise sufficient to support such a finding.

Corona, while acknowledging the existence of Selle, makes no effort to distinguish it, and we are unable to do so. On the authority of Selle, Corona’s first point is denied.

Corona’s second point arises from the following proceedings at trial.

During cross-examination of Corona, the prosecutor asked: “Mr. Corona, when you lived in Cuba, were you convicted and imprisoned for covering up a robbery?”

Outside the hearing of the jury, defense counsel stated: “I will object to this as being irrelevant and prejudicial. The Prosecutor does not have any information that he was represented by counsel nor does he have any documents to establish this — that there was a robbery committed by Mr. Corona in Cuba.”

The prosecutor responded by stating that in an application for asylum, Corona had indicated he was sentenced to one year for covering up a robbery and 10 years for buying stolen property in Cuba.

The trial court overruled the objection, whereupon Corona answered, “No. This is the first time I have been in jail.”

The prosecutor then — without defense objection — asked Corona whether he was convicted and sentenced for 10 years for selling stolen goods in Cuba.

Corona answered, “No.”

The prosecutor then handed Corona a copy of a document captioned “Request for Asylum in the United States,” asking Corona whether he had signed the original of that document. There was no objection to this inquiry. Corona admitted he had signed the original.

The prosecutor then asked: “Did you not tell an Immigration Officer at Fort Chaffee that you had been in prison for one year for covering up a robbery and had been sentenced for 10 years for selling stolen goods?”

There was no objection, and Corona answered, “Yes.”

The prosecutor then asked: “And did you not sign this document with your signature, indicating that that was a true statement?”

There was no objection. Corona answered: “Yes. Now, can I explain the motives?”

The prosecutor immediately turned his inquiry to another subject.

During redirect examination, defense counsel asked Corona why he had told the Immigration Officer about the two crimes.

Corona explained: “I said it in Miami— Key West, Florida. I told — I said it there, and also at Fort Chaffee that I had been arrested in — on two occasions because in Cuba — we were told — we were told by the policeman that all the ones that came to the United States that were supposed — we were supposed to say when we arrived in the United States that we were — that we had been in prison or arrested. So — so they would not think that we were willing to — that’s the motive why I said it that I had been arrested....”

After the defense rested, the prosecutor asked the trial court’s permission to read to the jury the following excerpt from the Request for Asylum: “Have you ever been arrested for any other reasons?” “X Yes.” “In prison 1 year for covering up a robbery. Sentenced 10 years for selling stolen goods.”

The document bore Corona’s signature and was dated May 19, 1980, at Ft. Chaf-fee, Arkansas.

Defense counsel objected “on the grounds it’s not the best evidence.”

The trial court granted the request and the prosecutor read the excerpt aloud.

Corona’s second point, as we understand it, is that the trial court erred by (1) allowing the prosecutor to continue to question Corona about the Cuba convictions after Corona initially denied them, and (2) allowing the prosecutor to read aloud the excerpt from the Request for Asylum.

Corona tenders the point as plain error, conceding it was not preserved for review because his motion for new trial was not timely filed. State v. Tate, 657 S.W.2d 727, 728[1] (Mo.App.1983). In addition, we observe that the first component of the point is ineligible for review for the further reason that there was no objection at trial when the prosecutor, after Corona’s initial denial of the Cuba convictions, asked Corona whether he had told the Immigration Officer at Fort Chaffee about them, and whether the Request for Asylum bore his signature. State v. Graves, 588 S.W.2d 495, 499[4] (Mo. banc 1979).

In determining whether Corona is nonetheless entitled to relief under his second point, we must be mindful that a defendant who seeks appellate review of a point as plain error bears the burden of demonstrating that the action of the trial court resulted in manifest injustice or miscarriage of justice. State v. Groves, 646 S.W.2d 82, 83[2] (Mo. banc 1983).

On that issue, we recognize, of course, that if Corona had in fact been convicted as shown on the Request for Asylum, the convictions were proper items for the jury to consider in assessing his credibility. State v. Giffin, 640 S.W.2d 128, 132[16] (Mo.1982); State v. Williams, 603 S.W.2d 562, 568—69[11] (Mo.1980); § 491.050, Laws 1981, pp. 635-36; § 546.260, RSMo 1978.

What Corona is saying, however, is that once he denied the Cuba convictions on cross-examination, the prosecutor was bound by those answers and was limited to proving the convictions, if he could, only by an admissible record thereof. See State v. Charles, 572 S.W.2d 193, 195-96[2] (Mo. App.1978); § 491.050, supra.

Assuming, without deciding, that had timely and proper objection been made, the trial court should not have allowed the prosecutor to pursue his inquiry about the Cuba convictions during Corona’s cross-examination once Corona denied them, we find no manifest injustice in the trial court’s failure, sua sponte, to foreclose the prosecutor’s inquiry.

The trial court had been told what was shown on the Request for Asylum, and was therefore aware that the prosecutor was asking about the Cuba convictions in good faith. Furthermore, as pointed out earlier, defense counsel registered no objection while the prosecutor pursued the subject. In such circumstances, the trial court’s failure to intercede while defense counsel remained mute did not result in a miscarriage of justice.

Corona’s complaint about the prosecutor’s reading from the Request for Asylum* is similarly unsound. As previously noted, during redirect examination Corona undertook to explain how the information regarding the Cuba convictions had gotten onto that document. In rebuttal, the prosecutor simply read what appeared there, which revealed nothing that the jury had not learned earlier during Corona’s cross-examination.

It is well settled that if evidence is improperly admitted, but other evidence before the court establishes essentially the same facts, there is no prejudice and no reversible error. State v. Zagorski, 632 S.W.2d 475, 478 n. 2 (Mo. banc 1982). What the prosecutor read had already been established during Corona’s cross-examination. Consequently, we need not decide whether the trial court erred in allowing the prosecutor to read what he did. As there was no prejudice, there could, a forti-ori, be no plain error.

Corona’s second point is, accordingly, denied.

Although Corona heretofore requested oral argument, we have, in adjudicating his two points, determined that oral argument would not be beneficial. Accordingly, the request for oral argument is denied per our Special Rule 1(e), p. 457, Missouri Rules of Court (16th ed. 1985).

Judgment affirmed.

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

      . Neither of Corona’s attorneys on appeal is the attorney who represented Corona at trial.