dissenting.
I respectfully dissent. The case at bar presents a peculiar set of facts wherein the denial of this writ of prohibition will amount to a discharge of the defendant without the benefit of a full and proper adjudication. The defendant in this case filed a motion in limine requesting the court to order the prosecuting attorney not to present testimony concerning certain telephone conversations held the morning of the attempted stealing. More specifically, on September 18, 1981 between 10:00 a.m. and 12:15 p.m. Mrs. Olive Eckstein received several phone calls from a man identifying himself as “Mr. Todd”, the head auditor at her bank. Mr. Todd informed her he was investigating theft by tellers and that he wanted her to withdraw $6,320.00 in bills of large denominations in order to help in the investigation. She was also told that she should tell no one of his call. After the third call Mrs. Eckstein contacted the Kirk-wood police. A Detective Morrison was sent to her home and listened to the remaining calls. During the last call Mrs. Eckstein was informed that someone by the name of “Cavanaugh” would be coming to pick up the money. At this point the door bell rang and the man at the door identified himself as “Cavanaugh” and that “Mr. Todd” had sent him. As “Cavanaugh” attempted to gain entrance into the home he was arrested by Detective Morrison. Mrs. Eckstein then saw a red car pull away from the front of the house. The driver was later identified as Gary James Rawlins the defendant in this case.
In filing his motion in limine defendant contended testimony concerning the phone conversations was inadmissible because it constituted hearsay. The state contended that the testimony complained of was relevant and admissible, not to prove the truth or falsity of the caller’s representations, but rather to show that the representations were in fact made and formed the basis for subsequent actions on the part of the victim. The Honorable George R. Gerhard then entered an order that he would sustain the aforementioned motion in limine.
The majority opinion concedes the state makes a persuasive case that these conversations are admissible. In a case that is on all fours with the case before us, the Western District of this court in State v. Herington, 520 S.W.2d 697 (Mo.App.1975) in an almost identical fact situation held that testimony of a victim in which he related the representations he received by telephone from a phony bank officer was relevant and admissible in prosecution.
I agree with the majority that ordinarily prohibition should not be used to determine the admissibility of evidence. However, the issue in this case is whether this court can permit a totally erroneous ruling clearly in excess of its jurisdiction to prevent the state from making a submissible case. See State ex rel. Gleason v. Rickhoff, 541 S.W.2d 47, 50 (Mo.App.1976). Again, the direct holding in State v. Herington, supra demonstrates the ruling here is clearly in excess of jurisdiction and therefore subject to a writ of prohibition.
It is true that the trial court’s action was discretionary and prohibition does not normally issue to review discretionary rulings unless they amount to an abuse of discretion so great as to be an act in excess of jurisdiction and are such as to create injury irremedial on appeal. Jones v. Corcoran, 625 S.W.2d 173 (Mo.App.1981); Allen v. Yeaman, 440 S.W.2d 138 (Mo.App.1969). The state seeks to meet this standard by demonstrating that the sustention of the motion in limine would render its case not submissible and that the state has no remedy on appeal.
The principal opinion relies heavily on the general rule that prohibition is not a writ of right and should not be employed for correction of alleged or anticipated judicial errors and does not lie for grievances which may be adequately redressed in the ordinary sense of judicial proceedings. Kinsley v. State, 448 S.W.2d 890, 892 (Mo.1970). However, it also recognizes the fact that the grievance in this case may not be adequately redressed on appeal. Moreover, this is not an “anticipated judicial error” but one which is clearly erroneous and one *683which Judge Gerhard has already stated in a written order that he intends to sustain.
Relying on Lucas v. Moss, 498 S.W.2d 289 (Mo. banc 1978) the principal opinion stresses the fact that this issue involves the admissibility of evidence in the “ordinary sense” and as such we should not set a pattern of interfering in evidentiary rulings by the trial court. Despite the distinction enumerated in Lucas I believe that the evi-dentiary ruling there is comparable to that of the case at bar. In Lucas the ruling involved the interpretation of an evidentia-ry matter subject to a Supreme Court rule. This case involves the interpretation of an evidentiary matter subject to the ordinary rules of evidence. Both of these rulings can be characterized as rulings on the admissibility of evidence in the ordinary sense.
Defendant also contends that the state has an adequate remedy if it disagrees with Judge Gerhard’s ruling in that it could nolle prosse the charge and later bring the case in another division. Defendant’s suggestion is not well taken as I do not endorse “judge shopping” and do not believe it would change the end result.
The majority maintains that § 547.210 RSMo 1978 and Supreme Court Rule 30.02 provide that the state may appeal in limited circumstances and to grant the state the relief it seeks here would be to circumvent this “established and time-honored rule of law in Missouri which has served us well through the years.” Clearly this expresses a fear of a disruption of the orderly trial process and of opening the floodgates for petitions to this court for such relief. Granting the state relief in this case would not circumvent this rule but augment it to encompass a situation which needs to be addressed and remedied.
I would use prohibition here to prevent a totally erroneous holding by a trial court to cause a discharge of the defendant without the proper adjudication. A narrow construction of the principal opinion in this case to hold prohibition appropriate in situations where the state would be precluded from making a submissible case would better serve these peculiar facts. Cases should be examined individually and rules should be applied with some flexibility to meet the particular facts of each case. Accordingly, I would make the preliminary rule in prohibition absolute.