author: HOUSER, Commissioner.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. Mary BARRON et al., on Exceptions of Manchester Shopping Center, Inc., a Corporation, Appellant.
    No. 51746.
    Supreme Court of Missouri, Division No. 1.
    March 14, 1966.

      John Rickhoff, Walter Wehrle, Clayton, for appellant.
    Robert L. Hyder, Jefferson City, C. J. McEnery, Jr., Kirkwood, for respondent.
   HOUSER, Commissioner.

State Highway Commission ■ condemned a strip of land approximately 35 feet wide and 596 feet long out of the property of Manchester Shopping Center, Inc. located on the south side of Manchester Road in the City of Manchester in St. Louis County. This is an appeal from a judgment entered upon a jury verdict for $7,500 following a trial of the landowner’s exceptions to the commissioners’ award of $7,000. Landowner claimed damages in the amount of $60,000 and offered evidence in support thereof. The amount in dispute therefore exceeds $15,000. Accordingly, we have appellate jurisdiction. City of St. Louis v. Union Quarry & Construction Co., Mo.Sup., 394 S.W.2d 300; State ex rel. Kansas City Power & Light Co. v. Salmark Home Builders, Inc., Mo. Sup., 350 S.W.2d 771; Constitution, Art. V, § 3, V.A.M.S.; § 477.040, V.A.M.S.

The condemned strip, approximately 20,-000 square feet, was taken out of a tract of 10.8 acres purchased as raw land in October, 1959 for $88,241.78. The entire tract fronted 596 feet on Manchester Road and had a depth of 1,000 feet on the west and 500 feet on the east. A creek formed the rear boundary. The property was graded at considerable expense and a shopping center was built on the front part of the property in 1960. It consisted of two buildings containing 10 stores and a parking lot with spaces for 175 cars. The president of the corporation testified that the total cost of land and buildings was $420,183.19; that the cost of grading the 35-foot strip was $8,989.62, the cost of crushed rock put on the strip was $2,285 and the cost of a sign erected on the strip (removed by the taking) was $3,216.60; that taking the strip reduced the number of parking spaces in front of the buildings by 50 — from 175 to 125. Landowner’s witnesses estimated the damages, including the value of the land taken, the reduction of the number of parking spaces and the change from a level entrance from Manchester Road to two abrupt, steep entrances, at from $60,000 to $65,425 on the basis of market value of the entire tract before and after the taking. The commission’s witnesses placed the damages at from $5,500 to $6,700.

The substance of the sole point raised by appellant is that the court erred in admitting and not striking the testimony of the commission’s expert witness Tom McReyn-olds who, in developing the basis for the expression of his opinion as to the market value of the subject property, stated various details relating to recent sales of other properties in the vicinity. Appellant concedes that a witness giving his opinion as to value may state the reasons for his opinion and may state any circumstances which he would be allowed to give in evidence as independent facts, but argues that “he cannot under the guise of fortifying his opinion state to the jury any facts that are based on hearsay.” It is appellant’s position that Mr. McReynolds’ testimony with reference to the other sales was not based upon firsthand knowledge of those sales but upon hearsay. It is also urged that Mr. McReynolds erroneously was permitted to state that said sales were comparable to the subject property.

Tom McReynolds, a real estate appraiser whose general qualifications are not questioned, testified as follows: He first became acquainted with the property in the summer of 1959 when it was vacant ground. He appraised it as vacant ground. Later he appraised it as of the value date in this case, as fully developed property. He found the before-taking value to be $328,200, valuing the land at $69,000 and the improvements at $259,200. The value of the improvements was arrived at on the basis of the square feet of building area, plus the square feet of concrete and asphalt paving and the damages in connection with moving the signs and light standards. He gave the value after the taking as $322,704, or $64,006 for the land and $258,698 for the improvements. He arrived at the land value as a result of several years of appraising property along Manchester Road, beginning in 1956, by studying and considering recent sales of property fronting on Manchester Road and other factors to which reference will be made. He particularly described four properties of 3.46 acres, 4.97 acres, 9.8 acres and 50 acres, respectively, located on the south side of Manchester Road within a half mile east of the subject property, which were sold from 1957 through 1960. These tracts were located outside the city limits of Manchester but were zoned for the same uses for which the subject property was zoned. In each instance Mr. McReynolds gave the name of the purchaser, distance from the subject property, date of sale, dimensions, acreage, contour, terrain, and book and page of the deed records where the transaction was recorded. He also described a property sold in 1963, a one-acre tract located 2800 feet east of the subject property. His original information as to these sales came from investigating the land records, after which he consulted the purchasers to verify the amounts paid, relying upon what the purchasers told him. In no case, however, did he state to the jury the amount of the purchase price. In forming his opinion he relied in part upon these sales and upon an investigation he made of a number of other sales of properties all along on both sides of Manchester Road from Mason Road on the east to Clarkson Road on the west (a distance of six miles) while appraising for the state highway department, as supplemented by information gathered on subsequent appraisals for a number of private individuals on Manchester Road. (An objection to the testimony about the 50-acre tract was sustained on the ground that it was not comparable. Numerous objections to the results of his search of the records, on the basis of the best evidence rule, and to the verifications of purchase price given by the purchasers, on the basis of the hearsay rule, were duly made and consistently overruled.) Mr. McReynolds’ opinion, based partly upon the sales of the foregoing properties and purchase prices paid for them, was also based upon other factors which he stated a reasonably prudent buyer would take into consideration in buying a shopping center, such as location, accessibility, quality and size of improvements, ingress and egress, type and character of tenants, the leases, rentals, available parking facilities, competition and rate of population growth in the area. His final conclusion was that the damages to the land amounted to $4,994 or $5,000 in round numbers, plus $500, the cost of relocating the sign, or a total damage of $5,500.

We have concluded that the court did not err in admitting the opinion testimony of this witness as to the value of the subject property before and after the taking, based in part upon what he ascertained by investigating the land records and what the purchasers told him they paid for these properties.

We approve and endorse the following statement of the law on this subject as recently expounded by Ruark, J. in State ex rel. State Highway Commission v. Bloomfield Tractor Sales, Inc., Mo.App., 381 S.W.2d 20, 1. c. 23, 24, 25: “There is no exact rule by which the qualification of a witness to testify as to the value of land can be measured. Love v. United States, 8th Cir., 141 F.2d 981, 984. As a general rule, the market value of real estate is established by voluntary sales of other similar property made in the same general vicinity and not too remote in time. Jackson County v. Meyer, Mo., 356 S.W.2d 892, and cases at 894; Missouri Public Service Co. v. Hunt, Mo.App., 274 S.W.2d 27; City of St. Louis v. Buselaki, 336 Mo. 693, 80 S.W.2d 853; 85 A.L.R.2d 110, 119 Consequently the witness (other than the owner) must, in ordinary circumstances, have some knowledge or information as to sales of similar or comparable property. Generally stated, the knowledge of the witness must be such as is demanded by the nature of the subject matter and such as can reasonably be expected in the circumstances. The means of knowledge, and therefore the requirements in respect to qualification, may be higher in an area where there are frequent sales of similar property and lower where such sales are infrequent or nonexistent. 32 C.J.S. Evidence § 545, p. 301; Orgel, Valuation under Eminent Domain, § 138, p. 589. This has sometimes been referred to as a ‘sliding scale’ standard. See 159 A.L.R. Anno. 14-16. And the tendency is to admit any evidence which sheds light on the question, leaving it to the discretion of the trial court to keep it within bounds: Artificial rules of evidence which exclude from the jury matters which men consider in their everyday affairs hinder, rather than help, the arrival at a just result. United States v. 25,406 Acres of Land, 4th Cir., 172 F.2d 990.

“One need not be an ‘expert,’ in the sense that word is ordinarily used, to testify as to the value of land. If the witness knows or has inspected the property, and if he has such information, knowledge, and skill which enable him to form an intelligent judgment, and if this knowledge and information is superior to that possessed by the ordinary person who composes the jury, then he should be permitted to testify. Beyond that any deficiency he may have goes to the weight of his testimony, not to the qualification. 32 C.J.S. Evidence supra, § 545, p. 301 et seq.; Lewis, Eminent Domain, 3d Ed., Vol. II, § 656; State ex rel. Burcham v. Drainage Dist. No. 25, Mo.App., 272 S.W.2d 712; Wipfler v. Basler, Mo., 250 S.W.2d 982 (14); State ex rel. State Highway Commission v. Devenyns, Mo.App., 179 S.W.2d 740; see Alexander v. Llewellyn, Mo.App., 70 S.W.2d 115. As was said by Bennick in City of St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 168 S.W.2d 149,l. c. 157:

* * * the considerations which govern the admissibility of opinion evidence are, for practical purposes, identical with those that actuate ordinarily prudent persons in looking for advice in connection with the conduct of their own personal business affairs. It follows, therefore, that if a witness, whatever his occupation or profession, is one whose opinion would be sought after and given weight by ordinarily prudent persons seeking information upon the question of the value of or damage done to the property which is the subject of the inquiry, he is competent to give his opinion in evidence in the case so far as the matter of his qualification is concerned.’ One may add to» and sometimes acquire, the superior knowledge which qualifies him to testify as to value by making a study and inquiry as to such sales. Boyce v. Gingrich, 154 Mo.App. 198, 134 S.W. 79; Brayton v. Gunby, Mo.App., 267 S.W. 450; Ruddy v. Gunby, Mo.App., 180 S.W. 1043; see Hotchner v. Liebowits, Mo.App., 341 S.W.2d 319, 329. As a matter of fact, it has been said that an expert should make careful inquiry into the facts concerning similar sales upon which he bases his opinion as to land values. State ex rel. State Highway Commission v. Dockery, Mo., 340 S.W.2d 689, 695. He may take into consideration the consideration stated in a deed as a source of information. Ramming Real Estate Co. v. United States, 8th Cir., 122 F.2d 892, 895. And his competency as ai\ expert may not be attacked on the ground that he has considered hearsay or sales that wotdd otherwise be inadmissible. 159 A.L.R., Anno. pp. 43-44; City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839, 849; United States v. 5139.5 Acres of Land, 4th Cir., 200 F.2d 659; see State ex rel. State Highway Commission of Missouri v. Craighead, Mo.App., 65 S.W.2d 145, 149.

“ ‘An expert quite frequently bases his opinion of value to some degree on what he learned through inquiry and investigation. To be sure, such inquiry and investigation constitute purely hearsay and are inadmissible; but as Mr. Justice HOLMES said: “An expert may testify to value although his knowledge of details is chiefly derived from inadmissible sources, because he gives the sanction of his general experience.” ’ Jahr, Eminent Domain, Valuation and Procedure § 134, p. 207.” (Our emphasis.)

It is the general experience and observation of an expert witness that qualifies him. Nichols on Eminent Domain, 3rd ed., Vol. 5, § 18.4 [4], pp. 214, 215. His knowledge and expertise is acquired from many sources, some of which are hearsay sources as.a matter of necessity. For instance, a well-qualified expert ordinarily attempts to exhaust the prior learning in the field. This necessarily involves the absorption of much data based upon or constituting hearsay, such as statements in textbooks, lectures by those professing specialized knowledge, opinions and experiences of others, etc. See United States v. Katz, 1st Cir., 213 F.2d 799, 801. As stated in Hanover Water Co. v. Ashland Iron Co., 84 Pa. 279, 285: “The knowledge that the best experts possess upon this subject is derived from hearsay. It is not necessary that they should be actually present and personally know the sale,” and in Winklemans v. Des Moines N. W. R. Co., 62 Iowa 11, 17 N.W. 82, 83: “The knowledge which qualifies a witness to testify as to values, must necessarily consist largely of hearsay. The examination of market reports, and information acquired from others, as to sales of property qualifies a witness to testify as to values.” The hearsay and best evidence rules should not be applied to prevent an expert witness from giving the basis of his opinion. United States v. 5139.5 Acres of Land, 4th Cir., 200 F.2d 659, 662 [7].

The objection that the court erred in permitting the witness to testify that the sales were comparable is not well taken for two reasons. In the first place, he did not so testify. In the second place, the testimony as to other properties and other sales was not offered or admitted as independent substantive evidence of the value of the subject property, but in support of and as background for the opinion of the expert. In such case the details of the sales upon which the expert bases his opinion are admissible as a basis for the opinion he expresses. Nichols on Eminent Domain, 3rd ed., Vol. 5, § 18.42 [1], p. 253; United States v. Johnson, 9th Cir., 285 F.2d 35, 40 [5], 41 [6],

Appellant further contends that if the testimony was admissible the court nevertheless erred in refusing its Instruction A by which the jury would have been instructed that “testimony by witnesses not having first-hand knowledge of the matter stated that certain properties had sold shall not be considered as evidence that such properties have sold, or as evidence of the market value of the property involved, but may only be considered as being information which the witnesses testified they gathered for the purpose of forming an opinion of the market value of the property involved.” There was no error in refusing Instruction A. Evidently it was patterned after an instruction used in a Texas case appellant cites. As there worded it was relevant. In that case the purchase price supposed to have been paid for the other comparable property was stated to the jury. Such an instruction would be irrelevant in this case, in which the purchase prices paid for the other properties were not divulged. As the instruction was reformed and redrafted for use in this case it does not fit the case. It is internally confusing. It was apparently intended as. a cautionary instruction. Whether a cautionary instruction should be given is a matter within the discretion of the trial judge. It is not a matter of right. Shell Pipe Line Corp. v. Bruns, Mo.App., 239 S.W.2d 546, 550 [4]; State ex rel. State Highway Comm. v. Warner, Mo.App., 361 S.W.2d 159 [12], Given Instructions 5 and 6 adequately and properly cautioned the jury on the weight and value to be given the opinions and testimony of the witnesses. In refusing Instruction No. A the trial court exercised a wise discretion because, read in connection with Instructions 5 and 6, it would have been misleading and confusing, if not contradictory.

No error appearing in any respect suggested, the judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM.

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

All of the Judges concur.

      . Contrary as to sales of dissimilar property. School Dist. of Kansas City v. Phoenix Land & Improvement Co., 297 Mo. 332, 249 S.W. 51; St. Louis Electric Terminal R. Co. v. MacAdaras, 257 Mo. 448, 166 S.W. 307.


source: Caselaw Access Project

author: HYDE, Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. Keith HALL and David L. Riley, d/b/a Hall & Riley Quarries and Construction Company, Relators, v. Honorable Phil H. COOK, Judge of the Circuit Court of Saline County, Missouri, Respondent.
    No. 51598.
    Supreme Court of Missouri, En Banc.
    March 14, 1966.
    Rogers, Field & Gentry, Charles W. Baker, Kansas City, Howard F. Major, Columbia, Williams, Williams & Reesman, Boonville, for relators.
    Conway & Blanck, James E. Conway, Boonville, for respondent.
   HYDE, Judge.

Original proceeding in prohibition to prevent the respondent Judge from requiring relators to answer certain interrogatories. Relators are partners in the operation of a limestone quarry and were sued by August and Bernadine Wassman (hereinafter called plaintiffs) for $40,000.00 actual damages and $50,000.00 punitive damages, alleging injuries to their property and personal damages and discomfort from the operation of relators’ quarry.

The issue raised by relators is whether respondent Judge exceeded his jurisdiction in requiring relators to answer the following interrogatories propounded by plaintiffs :

“22. Please attach copies of the income tax return filed for Hall and Riley Partnership, Form 1065, as filed with the Internal Revenue Service for the year 1959 and for each year thereafter with all schedules and balance sheets as required by the Federal Government.

“23. Please attach a current personal balance sheet showing your assets and liabilities in total.”

Respondent’s brief says: “[B]oth items are a proper point of inquiry in the case wherein punitive damages are sought.” Relators rely on the rule thus stated in Thomas v. Durham Motors, Inc., Mo.App., 389 S.W.2d 412, 414: “It is the general rule that in a suit involving exemplary damages against one person or one corporation the defendant’s worth or financial condition is competent and relevant. However, many jurisdictions, including Missouri, follow the rule that where a number of defendants are sued jointly, their wealth, either individually or collectively can not be shown for the purpose of punitive damages,” citing our rulings in Wolfersberger v. Miller, 327 Mo. 1150, 39 S.W.2d 758, and Dawes v. Starrett, 336 Mo. 897, 82 S.W.2d 43. This rule was stated in Washington Gaslight Co. v. Lansden, 172 U.S. 534, 19 S.Ct. 296, 303, 43 L.Ed. 543, quoted in the Dawes case, 82 S.W.2d l.c. 60, as follows: “As the verdict must be for one sum against all defendants who are guilty, it seems to be plain that, when a plaintiff voluntarily joins several parties as defendants, he must be held to thereby waive any right to recover punitive damages against all, founded upon evidence of the ability of one of the several defendants to pay them. This rule does not prevent the recovery of punitive damages in all cases where several defendants are joined. * * * jjut we ¡lave no doubt it prevents evidence regarding the wealth of one of the defendants as a foundation for computing or determining the amount of such damages against all.” (19 S.Ct. l.c. 303.) Subsequent Missouri cases have followed this rule; and it is said to be the majority rule in an annotation in 63 A.L.R. 1405. In Burton v. Auffenberg, Mo.App., 357 S. W.2d 218, 223, the St. Louis Court of Appeals found submission of plaintiff’s claim for punitive damages authorized against five partners but held that the rule of Dawes v. Starrett applied and prevented showing the financial interests of one of them. However, in our cases it had not been considered that in the Washington Gaslight case, there was a verdict for one sum against three defendants (compensatory and punitive lumped together) and not separate findings on compensatory and punitive damages as required by our Rule 71.06 V.A.M. R., and previously by Sec. 510.270, RSMo, V.A.M.S. Of course, under procedure requiring a single lump sum verdict against all defendants, evidence of greater wealth of one would be prejudicial error.

Our rule as to compensatory damages in tort actions, which is the universal rule, is: “All who are guilty of participating in the wrongdoing are jointly and severally liable for the whole damage, and the judgment must be in one amount and against all who are not discharged.” Electrolytic Chlorine Co. v. Wallace & Tiernan Co., 328 Mo. 782, 41 S.W.2d 1049, 1052, 78 A.L.R. 930; see also Neal v. Curtis & Co., 328 Mo. 389, 41 S.W.2d 543, 557. The Washington Gaslight Company case (19 S.Ct. l.c. 303) applied this rule to all damages in tort cases, requiring both compensatory and punitive damages in one sum and saying: “In this case the jury was bound to give one entire sum against all the defendants found guilty and that sum would be included in the judgment against each of them. * * * While all defendants joined are liable for compensatory damages, there is no justice in allowing the recovery of punitive damages, in an action against several defendants, based upon evidence of the wealth and ability to pay such damages on the part of one of the defendants only.”

Is it necessary to apply the rule of compensatory damages to punitive damages ? There are variations from this rule. “In some states it is held that exemplary damages are to be assessed according to the guilt of the most innocent of several defendants, and that if any of them were acting in good faith, and so not liable for such damages, none can be awarded in the suit; while in other jurisdictions it is held proper for the jury to assess damages against all the defendants jointly according to the amount which, in the jury’s judgment, the most culpable of the defendants ought to pay.” However, more to the point herein: “In some jurisdictions the jury, in an action against joint tortfeasors, may make awards for exemplary damages in different amounts, depending upon what the evidence shows and the jury finds to be the differing degree of culpability among the several defendants, and may award such damages against one or more of them and not against others.” 22 Am.Jur.2d 356-357, Damages, Sec. 262; see also 25 C.J.S. Damages § 126(3), p. 1170; Sedgwick on Damages, Sec. 382; Sutherland on Damages, Sec. 407; annotation on apportionment of punitive damages, 62 A.L.R. 239. The Supreme Court of California, in Thomson v. Catalina, 205 Cal. 402, 271 P. 198, 62 A.L.R. 235, following Nelson v. Halvorson, 117 Minn. 255, 135 N.W. 818; Mauk v. Brundage, 68 Ohio St. 89, 67 N.E. 152, 62 L.R.A. 477, and St. Louis Southwestern R. Co. v. Thompson, 102 Tex. 89, 113 S.W 144, held proper “the action of the jury in relation to the making of awards for exemplary damages in different amounts in this action, depending upon what the evidence showed and the jury found to be differing degrees of culpability among these several defendants.” See also Louisville & N. R. Co. v. Roth, 130 Ky. 759, 114 S.W. 264; Hotel Riviera, Inc. v. Short, Nev., 396 P.2d 855; Edquest v. Tripp & Dragstedt Co., 93 Mont. 446, 19 P.2d 637, 640; Johnson v. Atlantic Coast Line R. Co., 142 S.C. 125, 140 S.E. 443; Freeman v. Sproles, 204 Va. 353, 131 S.E.2d 410, 414. In the Edquest case, it is said: “We recognize the rule that no such apportionment exists among joint tort-feasors in so far as compensatory damages are concerned, but hold that the jury in an action against joint tort-feasors may make awards for exemplary damages in -different amounts, depending upon what the evidence shows and the jury finds to be the differing degrees of culpability among the .several defendants.”

We find most persuasive the following statement of the Supreme Court of South Carolina in the Johnson case (140 S.E. 454) : “The rule of one verdict against all the defendants found guilty will almost always cause the entire punishment to fall upon one alone. The other defendants will then be freed and discharged from liability on the judgment, thus being enabled, notwithstanding the ‘example’ of the verdict ‘for the public good,’ to wholly evade the penalty and defeat altogether the ends of justice. The policy of separate verdicts, on the other hand, requires that, in fixing the amount of punitive damages, the pecuniary conditions of the defendants should be considered. One defendant may show small means; the great wealth of another may be shown; and in each instance the amount of the verdict may be considered by the jury, fairly and justly, from the sound standpoint of assessing such amount of punitive damages as to operate as adequate punishment. The defendants are thus required to pay, each according to his own means. The enforcement of the judgment against one defendant does not relieve other defendants from their own responsibility to respond for willful tort.”

It would be within the spirit and purpose of our Civil Code of Procedure, adopted in 1943 (Laws 1943, p. 353) and our Rules of Civil Procedure, adopted in 1959, effective April 1, 1960, V.A.M.S., to hold that findings in verdicts are authorized for different amounts for punitive damages against several defendants sued in the same action, depending on differing degrees of culpability and other circumstances as shown by the evidence. Rule 41.03 provides for construction “to secure simplicity and uniformity in civil procedure, fairness in the administration of justice, and the elimination of unjustifiable expense and delay.” Our present procedure provides for multiple separate findings in the same case in many instances. See Rules 52.05, 52.07 and 52.10; Thorn v. Cross, Mo.App., 201 S.W.2d 492 (findings in different amounts for injuries to several plaintiffs in a collision of automobiles); Fair v. Thompson, 240 Mo.App. 664, 212 S.W.2d 923 (separate findings in two wrongful death actions); State ex rel. Rosen v. McLaughlin, Mo.Sup., 318 S.W.2d 181, 68 A.L.R.2d 1366 (approving consolidation of personal injury cases of four persons); see also Rule 55.08. Our previous cases have not actually ruled on this issue of several separate findings on punitive damages because apparently it has never been directly presented for decision. Both the Wolfersberger case (39 S.W.2d l.c. 765) and the Dawes case (82 S.W.2d l.c. 60) ruled on admissibility of evidence of wealth of one of several defendants when the submission as to punitive damages was to be for a verdict against all jointly for the same amount. The opinions of our Courts of Appeals involved similar circumstances. Evidence of wealth of one defendant would be improper under such a submission. We hold that where the evidence supports such a separate submission the jury should be instructed that they may find punitive damages against several defendants in different amounts; and when this is to be done evidence of the wealth of each is admissible. It is also our view that our contribution statute, Sec. 537.060, RSMo V.A.M.S., does not apply to punitive damages. See 18 Am.Jur.2d 48, Contribution, Sec. 35, as to wilful, malicious or intentional joint wrongdoers. See also Secs. 40 and 41.

It follows that since it is proper procedure to have separate findings fixing the amount of punitive damages against each of several defendants, the pecuniary status of each defendant may be considered. Therefore, it is proper for respondent to require relators to answer interrogatories 22 and 23, and our provisional rule in prohibition is discharged.

All concur.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Lavern Charles HALE, Appellant.
    No. 51563.
    Supreme Court of Missouri, Division No. 2.
    Feb. 14, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied March 14, 1966.

      Harold C. Ackert, Herbert Wolkowitz, St. Louis, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, Floyd L. Sperry, Jr., Sp. Asst. Atty. Gen., Clinton, for respondent.
   BARRETT, Commissioner.

The appellant Lavern Charles Hale has been found guilty of robbery in the first degree and since the court found a prior felony conviction the court sentenced him to 15 years’ imprisonment.

In brief the circumstances as shown by the state were that about 6 o’clock on January 22, 1965, Don Riggins entered the “trailer office” of his second-hand car business at 1525 N. Vandeventer Avenue. He turned on both the office and outdoor lights and almost immediately saw a man walk past the closed door. The man asked about the price of a particular automobile but Riggins told him “we wasn’t open.” Eventually, however, Riggins opened the door and as he turned to the right “a shadow was coming around the right side” of the trailer and Riggins said, “Is this fellow with you ?” And then Riggins said that the first man “walked up to the door just casually and slow, and as he laid against that door he had this elbow, because I had two thousand things running through my head then. * * * Then I went to talking to him, because — I won’t say or give you my opinion, but I knew what was happening, I looked at him real good.” There was a “low one and a tall one.” Riggins said, “Let me crank the car up” and when he reached toward a box by the door for a car key, “Just that quick the sawed-off shotgun was on me, ‘Get back in there,’ he said. * * * The tallest one (the appellant Hale) with the shotgun, he said, ‘Get back inside, this is a stickup, get down there on the floor.’ ” Riggins got down on the floor and “they tied my legs first, and then he went to hunting the money, and I reached him the money out of the pockets * * * and as I went to look up the tallest fellow had sit down and two chairs right at the door with the gun in my ear, and he told me the types of names he wanted me to be called * * * he had the gun right in my ear, and he said, T got this gun in your ear, and if you move, I will blow your head off,’ just like that. When I went to hand him the pocketbook to look up, the tallest one kicked me in the mouth because I was handing the money to the shorter one.” The robbers took $500 in cash, a ring and a watch, and left Riggins bound with a cord and gagged. At the trial Rig-gins identified appellant in this language: “That man there is the one that had the gun, the sawed-off shotgun, he is the one that held it on me and the one sitting with it on my head, he is the one that kicked me in the mouth.” The robbers had “pulled my shoes off” and soon Riggins was able to open the door with his foot, a passing man untied the cord and he called the police. The facts as the jury could reasonably find them from this evidence support the charge of first degree robbery, robbery with a dangerous and deadly weapon. State v. Andrews, Mo., 309 S.W.2d 626, 628; State v. Foster, Mo., 349 S.W.2d 922.

Three days later, January 25, 1965, officers Cox and Schultz came to Riggins’ home and took him to the morgue and “showed me several people that was in there. * * * Well, it was one particular person (Myree Chisom) there that I had identified to him that was one of the parties that was — that stuck me up. * * * I told him that was one of them, and it was the lowest one.” One of the officers then took him to the 8th District police station and there from “a stack of photographs” he saw and pointed out a picture of the appellant Hale. On the following day, January 26, he was “brought into one room” where there were two men of similar height and build and immediately identified the appellant, “I was looking for the fellow that I knew robbed me, and this fellow seemed to be the same size as this fellow, but I knew he wasn’t him because he didn’t have that feature I was looking for. * * * He didn’t have it, the side of the face and mouth and nose and hair,” and even though by then his moustache “was growing back.”

In this background the appellant’s first assignment of error is that the court erroneously permitted testimony and argument by the state’s attorney concerning his photograph on file at the police station. Specifically it is said that the court erred in not declaring a mistrial “where the defendant did not testify or put his character at issue and over his objection and the court’s previous rulings, the assistant circuit attorney in his closing argument and during the direct examination of the state’s witnesses repeatedly commented on, and elicited testimony that defendant’s photograph was on file at police headquarters,” the plain implication of the testimony and argument being, in the words of his argument, “that defendant had a prior criminal record.”

In the first place, the record does not in fact support an assignment based on a prosecuting attorney’s repeated disregard of the court’s ruling — an “overall prejudicial effect.” State v. Allen, 363 Mo. 467, 473-474, 251 S.W.2d 659, 663; State v. Burns, 286 Mo. 665, 671-672, 228 S.W. 766, 768-769. When the matter first arose, during the noted direct examination of Riggins, and defense counsel objected that the answer “indicates to the jury that this man has a police record and puts his character in issue” the court upon being informed that the appellant was not going to testify overruled a motion to discharge the jury but ruled “Sustained as to the other part. * * * Disregard that last question and answer of the witness. You may proceed.” Forty-two pages of cross-examination intervened and during the examination of Officer Cox he said that they left the morgue and “went up to the identification bureau at police headquarters and at this time we obtained numerous photographs of subjects.” Upon objection to this volunteered statement the court again overruled a motion for a mistrial but told the jury to “Disregard the last statement of the prosecutor and the answer of the officer.” In the course of the prosecutor’s opening argument in which he detailed the events leading up to Hale’s identification and arrest, particularly Riggins’ testimony, he said, “He further testified that he viewed various pictures.” Upon defense counsel’s objection the court instructed the jury to “Disregard the last statement,” and the matter was not again referred to. These circumstances do not cogently demonstrate an instance of misconduct of counsel in attempting to get before the jury improper matter within the meaning of State v. Allen and State v. Burns, supra.

In the second place appellant relies upon the unusual and for an appellate court the rather bizarre case of State v. Baldwin, Mo., 281 S.W. 940; 281 S.W. 943; 317 Mo. 769, 297 S.W. 10. While the present case could he distinguished on its precise circumstances, it is not necessary to do so and neither is it necessary to consider the rationale of that case. Upon this very subject State v. Baldwin was expressly overruled in State v. Rima, Mo., 395 S.W. 2d 102: “Therefore, we hold the statement of Larkins concerning recognition of a picture of defendant was not a basis for claiming prejudicial error.” 395 S.W.2d 1. c. 106.

The appellant's second briefed assignment of error is that the court erred in sentencing him under the habitual criminal act, RSMo 1959, § 556.280, V.A.M.S. There is no attack upon the constitutionality (State v. Johnstone, Mo., 335 S.W.2d 199) or applicability in general of the second offender statute. The second offender act was applicable to the prior conviction even though the punishment was fixed at fifty days in the St. Louis City Workhouse, the offense was the felony of carrying a concealed “dangerous or deadly weapon.” RSMo 1959, § 564.610, V.A.M.S.; State v. Foster, Mo., 251 S.W.2d 675. The assignment of error is that the court erred in applying and sentencing the appellant under the second offender act because in doing so the court erroneously found that as to the prior offense he “was lawfully convicted of a prior felony when the evidence showed, beyond a reasonable doubt, that at the court proceeding of the prior felony conviction the defendant was not represented or assisted by legal counsel, all in violation of his right to assistance of counsel as guaranteed under the Fourteenth and Sixth Amendments to the Constitution of the United States and in violation of the 1945 Constitution of Missouri, Article I, Section 18(A) [V.A.M.S.].” In support of the assignment the appellant relies of course upon Gideon v. Wainwright, 372 U. S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and subsequent federal cases as well as the cases in this jurisdiction recognizing and enforcing that substantial right, Ex parte Stone, Mo.App., 255 S.W.2d 155.

In the first place again the categorical assertion of the assignment and the motion for new trial is not clearly supported by the record. Defense counsel stipulated that Hale was sentenced to the workhouse for fifty days, served his sentence and was discharged but he would “not stipulate as to the conviction,” his contention being that in violation of Gideon v. Wainwright “this man pleaded guilty to a felony without the aid or assistance of counsel.” Of course appellant’s motion for a new trial and his assignment here insofar as they are concerned with facts or fact issues as shown by the record are not self-proving. When the appellant’s prior conviction was introduced in evidence through the official records of the Circuit Court the judgment recited, among other matters, that “Now, on this day comes the Assistant Circuit Attorney for the State and the defendant herein, in person, and in custody of the sheriff of this City, and in the presence of Joseph Noskay, attorney and counsel, in open court, whereupon the defendant waives the reading of the information and enters a plea of guilty to the crime of carrying a concealed weapon. Said plea being accepted by the Court, and upon recommendation of the Assistant Circuit Attorney for the State, and being now asked by the Court if he has any legal cause why judgment should not be pronounced” sentenced him to fifty days in the workhouse.

The recital “and in the presence of Joseph Noskay, attorney and counsel” is indeed unusual and equivocal, it does not affirmatively appear that he was representing Hale, but, on the other hand it does not affirmatively appear that he was not representing him. Despite the fact that the first record recital in this transcript is “Thereafter, on Thursday, February 4, 1965, defendant in person and by attorney, Joseph Noskay, waives reading of the information and pleads not guilty,” Hale in testifying as to his prior record had this to say:

“Q. Do you know Mr. Joseph Noskay from the Public Defender’s office?
“A. No, sir, I don’t know him.
“Q. Have you ever heard of him?
“A. When I came through on this case.
“Q. In this present case? A. Yes, sir.
“Q. Had you met him ten years ago or twelve years ago in 1953 when this concealed weapons case was up?
“A. I do not remember him.”

It is also an admitted fact as the record recites that Hale “enters a plea of guilty” and it does not follow as a matter of course from the mere fact of not being represented by counsel that his constitutional rights have been infringed. State v. Young, 361 Mo. 529, 534, 235 S.W.2d 369, 371. There is no claim here that when Hale entered his plea of guilty in 1953 that he was imposed upon, coerced, or that any unfair advantage was taken, and he is in the position of asserting a mere technical infringement of a theoretical right without reference to the record and without demonstration of prejudice. State v. Owens, Mo., 391 S.W.2d 248, 253-254.

Then upon this record there is the manner in which this problem was presented, this is not an appeal from the 1953 conviction, it is not a proceeding in habeas corpus and it is not a motion to vacate the judgment and sentence under Criminal Rule 27.26, V.A.M.R. Hale was here being tried for the principal and substantive offense of robbery in the first degree and it is proposed in this collateral, tangentical manner to attack and invalidate a 1953 judgment and sentence. Of course a void judgment is subject to collateral attack but under a 27.26 proceeding the motion to vacate must allege facts, not mere conclusions, which if true would establish illegality of the judgment and mere failure to appoint counsel upon a plea of guilty is not sufficient in itself for that purpose. State v. Turner, Mo., 353 S.W.2d 602, 603-604; State v. Baugh, Mo., 382 S.W.2d 608, 610. Thus upon this record with the question presented in this manner it is not established that the 1953 sentence was illegal and therefore not available to the state as a basis for invoking the habitual criminal act.

The appellant was represented in the trial of his cause and here by diligent counsel and while these were the two points briefed and argued (Criminal Rule 28.02) questions not required to be presented in a motion for a new trial have been examined and the transcript shows compliance with all matters necessary to be considered by this court “upon the record before it.” Criminal Rule 28.02; RSMo 1959, § 547.-270, V.A.M.S. The information appropriately charges the appellant with the offense of robbery in the first degree (RSMo 1959, § 560.120, V.A.M.S.; State v. Foster, Mo., 249 S.W.2d 371), a penalty within the statutory limits was inflicted (RSMo 1959, §§ 560.135; 556.280, V.A.M.S.), there was allocution and the sentence and judgment are responsive to the verdict. Criminal Rules 27.08, 27.09.

Since no prejudicial error is found or demonstrated upon the transcript the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM:

The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.

All of the Judges concur.


author: HIGGINS, Commissioner.

text:
    STATE of Missouri ex rel. MANCHESTER IMPROVEMENT CO., Inc., Appellant, v. CITY OF WINCHESTER, a Municipal Corporation, Herbert Dyck, Mayor, James Rigley, Alderman, Wayne Kossman, Alderman, Richard Zielmann, Alderman, Ronald M. Lloyd, Alderman, and Edward R. Dabler, Building Commissioner, Respondents.
    No. 51614.
    Supreme Court of Missouri, Division No. 1.
    March 14, 1966.
    Robert C. Jones, Ziercher, Tzinberg, Human & Michenfelder, Clayton, for appellant.
    Boedeker & Weil, Edgard G. Boedeker, Clayton, for respondents.
   HIGGINS, Commissioner.

Mandamus to compel respondents to issue a permit. Upon trial the alternative writ was quashed and relator’s prayer for an absolute writ was denied. The question is whether Winchester’s zoning ordinance as applied to appellant is unconstitutional and void in violation of Article I, Section 10, Constitution of Missouri, V.A.M.S..

The facts were stipulated: Relator owns Lots 1-10 and 20-27, Block 15, Manchester Hills, a subdivision of land in Winchester, a city of the fourth class in St. Louis County, Missouri, and said real property is zoned “B” Commercial District by Winchester’s Ordinance 103. Respondent officials are charged with the duties of issuing building permits, and relator duly applied for a building permit for construction of a gasoline filling station on a part of its land at the southeast corner of Manchester Road and Lindy Boulevard. Although relator had done all things and taken all actions required for issuance, the permit was refused for the reason that Ordinance 103 provides that a special permit must be obtained in order to erect a gasoline filling station in “B” Commercial District.

Relator then applied for and was denied a special permit under Section VIII of the ordinance which provides: “The Board of Aldermen may by special permit after public hearing authorize under such conditions as it may determine the location of any of the following * * * in a District from which they are prohibited or limited * *.

“j) Gasoline or oil filling stations in the ‘B’ Commercial District.”

Winchester’s population is 1,350 and it contains some 375 single family dwellings and one delicatessen. It fronts for one-half mile on Ae south side of Manchester and is bounded on the west by the City of Ballwin and on the east by the City of Manchester. Manchester contains four gasoline stations and Ballwin has ten. The nearest such station to Winchester in Manchester is diagonally adjacent to Winchester at Sul-pher Springs Road, and in Ballwin the nearest station is three-tenths’ mile west of the west limits of Winchester. Relator.’s property is four-tenths’ mile from the nearest station on the east and five-tenths’ mile from the nearest on the west.

Appellant contends that the court erred in not issuing a peremptory writ of mandamus ordering respondents to issue the requested permit “because there were no standards in section VIII of the zoning ordinance * * * applicable to special use permits, and that, consequently, said section VIII was null, void and unconstitutional and thereby -ordinance No. 103 (zoning ordinance) as applied to relator’s property violated Article I, Section 10, of the Constitution of the State of Missouri, 1945.”

When the legislative body of a city chooses, as Winchester did here, to delegate to itself the discretionary power to enforce its special permit regulation, it acts administratively in passing on applications for such permits and in thus enforcing the legislation previously enacted; and such discretion must be circumscribed by sufficient standards to require it to be reasonably, not arbitrarily, exercised. State ex rel. Ludlow v. Guffey, Mo., 306 S.W.2d 552, 556 [1-3], 558 [5], In State v.. Guffey, supra, the court held that Section 13 of the Webster Groves zoning ordinance contained sufficient standards for the guidance of the administrator. That ordinance provided, 1. c. 554: “ ‘The City Council may, by special permit after public hearing, authorize the location of any of the following buildings or uses in any district from which they are prohibited by this ordinance.’ Then follow twelve numbered ‘buildings or uses’ including, as number 11, gasoline and oil filling stations, restricted, however, to C and D commercial districts and E industrial district.” The ordinance then makes provisions absent from the Winchester ordinance : “ ‘Before issuance of any special permit for any of the above buildings or uses, the City Council shall refer the proposed application to the City Plan Commission, which Commission shall be given sixty (60) days in which to make a report regarding the effect of such proposed building or use upon the character of the neighborhood, traffic conditions, public utility facilities and other matters pertaining to the general welfare. No action shall be taken upon any application * * * unless the report * * * has been filed; provided, however, that if no report is received from the Plan Commission within sixty (60) days, it shall be assumed that approval of the application has been given by the said Commission.’ ” State v. Guffey, supra, I. c. 554. Winchester’s Section VIII does not contain any such standards, nor any standards at all, and it is, therefore, unconstitutional.

Appellant concedes, however, that it is entitled to no relief “unless this Court further finds that the Ordinance, devoid of the Special Use Permit section, is unconstitutional as it applies to Relator’s property.” Relator thus recognizes that even after Section VIII is determined to be unconstitutional it is left with land in “B” Commercial District which cannot be used for a gasoline filling station because such is not a permitted use in “B” Commercial District under Ordinance Section V. Its burden, then, is that of proving further that failure to provide for gasoline filling stations in “B” Commercial District renders Winchester’s zoning ordinance unconstitutional and void. Flora Realty & Inv. Co. v. City of Ladue, 362 Mo. 1025, 246 S.W.2d 771, 778 [6].

Appellant cites Huttig v. City of Richmond Heights, Mo., 372 S.W.2d 833, 842 [4], for the proposition that a city in its own zoning is not bound by the zoning of abutting municipalities but must consider the matter “at least to some extent, from a regional standpoint.” Appellant points to the Winchester frontage on Manchester Road, the abutting municipalities of Ball-win and Manchester containing ten and four gasoline stations, the location of appellant’s property at the corner of Lindy and Manchester, the number of dwellings and the delicatessen, and argues that such things show the classification of appellant’s property and the limitation against gasoline stations to be invalid, arguing further that there is no justifiable reason for the exclusion of gasoline filling stations because they are a use similar to other “B” District uses.

Ordinance 103 is a comprehensive zoning plan for the City of Winchester. Its Section V contains the regulations for the city’s “B” Commercial District and permits some 20 office and commercial uses. Contrary to appellant’s argument, the ordinance does not provide for any uses similar to gasoline filling stations. Rather, all uses relating to automobile traffic are prohibited, e. g., restaurants are permitted but not drive-in restaurants; retail stores and shops are permitted but not retail automobile sales; sales or showrooms are in, but automobile sales or showrooms are out. The question thus becomes whether, under the agreed facts and particularly those urged above by appellant, Winchester’s exclusion of gasoline filling stations is arbitrary and unreasonable in respect to relator’s property; and the rule is that, if the question is fairly debatable, the ordinance must be upheld as valid. Wrigley Properties, Inc. v. City of Ladue, Mo., 369 S.W.2d 397, 400 [2]; Downing v. City of Joplin, Mo., 312 S.W.2d 81; Flora Realty & Inv. Co. v. City of Ladue, supra.

The agreed facts and the pleadings do not challenge the power of Winchester to enact its zoning ordinance, nor do they suggest that it is not a comprehensive plan related to the statutory purposes of zoning, that there was any lack of due process surrounding its enactment, or that it is not uniform in application thereby discriminating against relator. Such stipulation shows only that Winchester is, with the exception of a delicatessen, a small town consisting entirely of single-family residences and that it is bounded by two cities in which there are some fourteen gasoline filling stations, at least one of which is as near as four-tenths’ mile from relator’s property. Huttig v. City of Richmond Heights, supra. That relator may not use its property for the desired purpose does not of itself make the ordinance unreasonable, Downing v. City of Joplin, supra, 312 S.W. 2d 1. c. 85 [6}, and, on the record thus presented, it cannot be said that this ordinance is unreasonable or arbitrary. Certainly, the issue is fairly debatable and, concerning the classification of relator’s property, the zoning ordinance in that respect is valid.

The judgment is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.

All concur.


author: FINCH, Judge.

text:
    STATE of Missouri, Respondent, v. Ralph Carl DeCLUE, Appellant.
    No. 51405.
    Supreme Court of Missouri, Division No. 2.
    March 14, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, James T. Buckley, Sp. Asst. Atty. Gen., Sedalia, for respondent.
    Michael J. Trombley, Columbia, for appellant.
   FINCH, Judge.

Defendant was found guilty of obtaining property and services by means of a check drawn, with intent to cheat and defraud, on a bank in which he knew he had no funds. The information also charged defendant under the Habitual Criminal Act. The court found he had three prior felony convictions and sentenced him to seven years’ imprisonment.

The charge against defendant on the check was based on § 561.450 (all references are to KSMo 1959 and V.A.M.S.). The language in the section with which we are concerned is as follows: “Every person who, with the intent to cheat and defraud, shall obtain * * * from any other person, or persons, any money, property or valuable thing whatever * * * by means of a check drawn, with intent to cheat and defraud, on a hank in which the drawer of the check knows he has no funds * * * shall be deemed guilty of a felony * *

The State’s evidence will support this statement of facts: Defendant was paroled from the Missouri State Penitentiary to the Parole Officer in Boone County about July 1, 1963. He began work in Columbia, with the idea of enrolling in the University in September. He worked at the Journalism School and on July 23 received a loan of $100.00 from Dean English, to be repaid from subsequent pay checks. On July 24 defendant took the check to the Boone County National Bank. He opened an account by depositing $25.00, receiving the other $75 00 in cash. On the same day, before leaving the bank, defendant drew a check against the account for $25.00 which he cashed at the bank. This depleted and closed out the account and at the end of business on July 24, defendant had no funds in the Boone County National Bank.

On the same day, defendant deposited $50.00 in the Columbia Savings Bank. He drew a check against the account for $5.00, leaving a balance of $45.00. Defendant had opened an account in this bank on July 16 by depositing $5.00, but he drew five $1.00' checks and the account was exhausted on July 19 when the last $1.00 check was paid.

Defendant owned a 1956 Ford and on the morning of Friday, July 26, he took it to Crane’s Auto Service where he requested repair of the transmission and replacement of the hood. Nothing was said about terms of payment or credit and when defendant returned late that afternoon' for the repaired automobile, he was presented with a bill for $81.15 for parts and labor. Defendant wrote a check dated July 26, 1963, for $81.15 to Crane’s Auto Service on the Boone County National Bank. Defendant did not request that the check be held and did not state that he had no money in the bank. He simply wrote and delivered the check in payment of the statement for parts and labor. Defendant had made no further deposits in the Boone County National Bank and on July 26, 1963, he had no funds on deposit in that bank.

Crane’s Auto Service deposited the $81.15 check in the Columbia Savings Bank. The evidence is not clear as to whether this was on Monday or Tuesday. On Tuesday, July 30, it was endorsed by the Columbia Savings Bank and presented to the drawee bank. Later in the day word was received by Crane’s Auto Service from the Boone County National Bank that the check was not being honored. It was returned to the garage marked “Acct. Closed.” This notation was placed thereon by the bank’s bookkeeping department. An officer of the bank testified that defendant had no funds in the Boone County National Bank after the account was closed out on July 24 and he had no funds in the bank on July 26, the date of the $81.15 check, or on any date thereafter.

Meanwhile, on Saturday, July 27, defendant and his fiancee had driven to St. Louis and Graniteville to visit, returning early in the afternoon on Monday, July 29. Shortly thereafter defendant was arrested by the police on a probation and parole violation warrant issued by the Parole Officer for leaving Boone County contrary to the conditions of his parole. A second warrant issued by the Parole Officer later that day added as a reason that defendant was suspected of giving several bad checks.

Defendant testified that he thought the $25.00 check cashed by him on July 24 was on the Columbia Savings Bank rather than the Boone County National Bank and he did not know he had depleted his account in the Boone County National. He further testified that during this period of time his fiancee had $150.00 of his money which he had turned over to her to hold for him and that he had $51.00 in cash on his person when he was arrested.

On cross-examination defendant identified three checks for $25.00 each, all dated July 24, 1963, and payable to Cash which he wrote on the Boone County National Bank. One was endorsed by Gerbes Super Market, Inc., one by The Missouri Store Co., and one by the University Book Store. Two are marked “Acct. Closed” and one “Not Sufficient Funds.” Defendant also identified three checks drawn by him on the Boone County National Bank dated July 25, 1963, all payable to Cash, for sums of $25.00, $50.00 and $50.00, respectively. These bore endorsements of The Missouri Store Co., University Book Store and The Great Atlantic and Pacific Tea Co., Inc., and all three were stamped “Not Sufficient Funds.” Defendant also identified a check drawn by him on the Columbia Savings Bank dated July 16,1963, to Cash for $25.00. It was endorsed by Glenn’s Cafe and is marked "“Acct. Closed.”

The first point for consideration is whether defendant’s motion for a directed verdict of acquittal should have been sustained. This involves primarily an examination of defendant’s assertion that the State failed to prove an intent on the part of defendant to cheat and defraud.

There can be no question but that defendant issued the check for $81.15 to Crane’s Auto Service in return for which he received parts and services used in repairing his automobile. It is clear that on July 26, 1963, the day the check was dated and issued, defendant had no funds in the bank on which it was drawn. There was ample evidence from which the jury could have found that defendant knew he had no funds in the Boone County National Bank at the time he drew the check in question. Defendant had deposited only $25.00 on July 24 and he had withdrawn that amount by a check written and cashed at the bank on the same day. The evidence so established, and defendant, when questioned about Exhibit 4 (the $25.00 check on the Boone County National Bank which he cashed while in the bank that day), admitted that such was the case. His only excuse or justification for claiming that he did not know that he had completely exhausted the account on the 24th was his statement that he thought the check for $25.00 which he wrote and cashed on the 24th was on the Columbia Savings Bank. The jury could and obviously did disbelieve such explanation. (If this had been true, the six other checks written on the 24th and 25th amounted to $200.00, whereas the only deposit ever made was $25.00.) There was ample evidence, therefore, to show knowledge on the part of defendant that the check to Crane’s was issued on a bank in which he had no funds.

This leaves only the question of whether there was sufficient evidence of intent to cheat and defraud. There was no oral statement by defendant to Crane’s when the check was given to the effect that defendant had the money in the bank and that the check would be paid on presentation. Such an affirmative representation is not necessary. The mere issuance and delivery of the check constitutes such a representation. We so held in State v. Griggs, Mo., 236 S.W.2d 588, 590, and State v. Hartman, 364 Mo. 1109, 273 S.W.2d 198, 205. Under the facts of this case, the issuance and delivery of the check was a false representation and the jury could have so found. Was it a false representation made with intent to cheat and defraud ? Evidence of six other checks issued -by the defendant on the same bank on the two days preceding" July 26 were introduced by the State for the purpose of showing such intent. Defendant raises a question as to their admissibility, which we will consider later. Even without those other checks being in evidence, we hold that under the facts of this case the jury could find an intent on the part of the defendant to cheat and defraud from the issuance and delivery of the no funds check. Not only did defendant have no funds in the drawee bank; he had made no arrangements with the bank whereby the check would be honored on presentation. He simply knowingly gave a check on a bank where he had no funds. The jury could, under such state of facts, find from defendant’s actions an intent on his part to cheat and defraud. Such question of intent is determined as of the time of the issuance of the no funds check, not, as defendant suggests, as of the time of presentation for payment at the bank. State v. McWilliams, Mo., 331 S.W.2d 610, 612.

This is not a case involving an insufficient funds check under § 561.460, wherein such questions as subsequent diminution of the account by other checks, payment of previous overdrafts by the bank, deposits made between the date of the check and the time of its presentation, and similar questions might arise. It was an insufficient funds check, not a no funds check, with which the court was dealing in State v. Taylor, 335 Mo. 460, 73 S.W.2d 378, 95 A.L.R. 476, cited by defendant, where something was said to the effect that the test of sufficiency of the check comes at the time of its presentation for payment. We are considering only the question of intent with reference to a no funds check under § 561.450. Since this intent is determined as of the time when the check is issued in return for “money, property or valuable thing,” the fact that defendant and his fiancee had enough cash which could have been deposited to create an account from which the check could have been paid was no defense (State v. McWilliams, supra, 331 S.W.2d 613) and did not affect the question of whether there was sufficient evidence to support the verdict.

This conclusion is not altered by the the provisions of § 401.185, cited by defendant as indicating that a check only becomes an instrument for business transactions upon being presented for payment. Said statute provides that, “A check is a bill of exchange drawn on a bank payable on demand.” This section is taken from the Uniform Negotiable Instruments Act and pertains to the nature of a check and rights therein and created thereby, but does not determine when and if an offense is committed under § 561.450. The latter section covers not only no funds checks but also bogus checks, instruments or devices referred to as “the confidence game,” etc., and the statute relates to the time of issuance or use of the instrument or .device as the time of the offense and the time to" determine the intent to cheat or defraud.

We have read all the cases cited by defendant, but do not consider it necessary to analyze and distinguish most of them. The case said by defendant to be closest to this one on the facts is State v. Scott, Mo., 230 S.W.2d 764. An examination of the opinion therein shows substantial differences. The check involved in the Scott case was deposited by payee in his local bank in King City, Missouri, It was a check for $4.00 drawn on the First State Bank of Leoti, Kansas. Later, the check was returned to the payee by the King City Bank with a penciled notation thereon of “No Acct.” As the opinion points out, there was no evidence as to whether there was in fact a First State Bank of Leoti, Kansas, or whether defendant had any funds in that bank, or the status of such account if he did, or whether defendant knew if he had any funds in said bank. There was no evidence other than the unexplained penciled notation as to why the check was not paid. The opinion quite properly held that the evidence was not sufficient to support a judgment of conviction, and the case was reversed and remanded. The proof which was missing in the Scott case was present in this case.

We hold that the State made a sub-missible case, that the evidence was sufficient to sustain the conviction, and that defendant’s motion for a directed verdict was properly overruled.

Defendant next contends that error was committed in admitting in evidence Exhibits 8 through 14.

Exhibit 8 was a check dated July 16, 1963, for $25.00, admittedly drawn by defendant on the Columbia Savings Bank. It was offered on the question of intent. The transcript discloses that it was admitted in evidence without objection. There is nothing before us for review with reference to that exhibit.

Exhibits 9 through 14 were the six checks referred to previously herein which were drawn by defendant on the Boone County National Bank on July 24 and 25, 1963, all of which were identified by defendant on cross-examination as checks which he had written. These checks were offered by the State to prove intent on the part of the defendant to cheat and defraud. This court consistently has held in false pretenses cases that evidence of similar offenses, if not too remote in time, are admissible in evidence to prove intent to cheat and defraud. State v. Hartman, supra; State v. McWilliams, supra; 78 A.L.R.2d 1359. Defendant recognizes this rule but claims that Exhibits 9 through 14 are inadmissible under that doctrine. This contention seems to be based on the fact that the recipients of other checks offered in evidence in the Hartman and McWilliams cases testified that defendant therein had received merchandise and cash therefor. Defendant points out that there was no evidence that defendant received money or merchandise in return for Exhibits 9 through 14 and that there was no showing that said checks were presented for payment and not honored. We are of the opinion that this makes no difference. Actually, evidence that a defendant has committed or attempted to commit similar offenses, if not too remote, is admissible to prove the criminal intent of the accused. State v. Stegall, Mo., 353 S.W.2d 656, 658. The defendant’s own testimony recognized that he had written and issued checks identified as Exhibits 9 through 14, inclusive, and he identified the endorsements on the backs of said checks indicating that said checks were negotiated at The Missouri Store Co., University Book Store, Gerbes Super Market, and The Great Atlantic and Pacific Tea Co. Proof offered in the case established that defendant had no funds in the Boone County National Bank. Certainly that proof was sufficient at least to show an attempt on the part of the defendant to obtain merchandise or money on checks issued on a bank in which he had no funds. That makes them admissible. Defendant argues that said exhibits were circumstantial evidence and were inadmissible because they did not meet the test of being consistent with the hypothesis of defendant’s guilt, and inconsistent with every reasonable hypothesis of innocence. This position overlooks the fact that the case against defendant was not circumstantial. There was direct evidence of the act of defendant in giving the check in return for parts and labor and direct evidence that he had no account in the Boone County National Bank. The other checks were offered solely as bearing on the intent with which defendant issued the check on which he was being prosecuted. There was direct evidence that defendant had written these checks without funds in the bank on which they were drawn. The checks were not inadmissible under the circumstantial evidence rule.

Defendant also complains that the trial court erred in overruling challenges for cause directed at two prospective jurors on voir dire examination. We will consider only the challenge to juror R. E. Lucas, Jr., since we have concluded that such challenge should have been sustained and the defendant is entitled to a new trial on that account.

Members of the jury panel were asked about their experience with no funds or insufficient funds checks. Mr. Lucas spoke up and said that they probably received more such checks in their business than anyone in Columbia. Asked whether this would keep him from considering the case in an impartial manner, he said, “Well, I would hope not; it would be rather difficult for me, however.” In another answer he remarked that he felt he was “opinionated about improperly handled checks.” Subsequently, when asked, “Do you feel that this would affect the verdict, your reviewing the verdict, on deciding on a verdict?” he replied, “I can only say again, and I’m very much in the same position as Mr. Roark, it would be difficult for me to make an impartial decision. I would hope that I would have character enough to do so.” Then in answer to “You do have the propensity to perhaps be not completely impartial?” he said, “I would say so.” The judge then took over the interrogation of Mr. Lucas, and the following occurred:

“THE COURT: Do you believe that you could sit in this case, in view of the type of case it is, listen to the evidence and the instructions of the Court, and return a verdict in accordance with the testimony and the Court’s instructions?

“MR. LUCAS: I would certainly hope to be able to do that, yes.

“THE COURT: Without any prejudice toward the defendant?

“MR. LUCAS: I think it would be difficult for me to do, but I will certainly do what I can do.

“THE COURT: Do you feel it might take less evidence in this case, than it would in a type with which you had had no experience to convince you beyond a reasonable doubt?

“MR. LUCAS: Would you word that again, please, Your Honor?

“THE COURT: I say, if it were not for this general type of offense which is involved here, -do you think that it might take less evidence in this type, than in another type of offense to convice you beyond a reasonable doubt.

“MR. LUCAS: For me to render a guilty or non-guilty?

“THE COURT: That’s right.

“MR. LUCAS: This I can’t answer. I don’t know.”

Juror Lucas was being entirely frank and honest in answering the questions propounded to him. The closest he ever came to saying that he could and would render a fair and impartial verdict was, “I would certainly hope to be able to do that.” What he said in answer to other questions as set out above shows that he was not qualified to serve in this case and that the challenge for cause should have been sustained.

The State cites and relies on § 546.150, the section dealing with challenge for cause of jurors in criminal cases, as indicating that juror Lucas was not disqualified. The rule has been established, however, that the statute is not all inclusive, and “[t]he fact that the statute enumerates certain grounds of disqualification does not exclude other grounds of incompetency.” State v. Miller, 156 Mo. 76, 56 S.W. 907, 909. This rule was cited with approval and extended to the statute applicable to jurors in civil cases in Murphy v. Cole, 338 Mo. 13, 88 S.W.2d 1023, 103 A.L.R. 505. It was approved again in Barb v. Farmers Insurance Exchange, Mo., 281 S.W.2d 297, 301, wherein we said: “The fact that the statute enumerates certain grounds of disqualification does not exclude other grounds, and if for any reason, whether statutory or not, a venireman is not in a position to enter the jury box with an open mmd free from bias or prejudice in favor of or against either party to the cause, and decide the case upon the evidence adduced and the law as contained in the court’s instructions, he is not a competent juror.”

Many cases recognize that it rests within the sound judicial discretion of the trial judge to determine the qualifications of a venireman and that his decision thereon should not be disturbed unless there is a clear abuse of discretion. This does not mean, however, that this court should not and does not review the facts of each particular case, when such question is raised, to determine whether or not there was an abuse of discretion.

In the case of Theobald v. St. Louis Transit Co., 191 Mo. 395, 90 S.W. 354, 359, this court said that “ * * * there is no feature of a trial more important and more necessary to the pure and just administration of the law than that every litigant shall be accorded a fair trial before a jury of his countrymen, who enter upon the trial totally disinterested and wholly unprejudiced.” That statement was made in a civil case, but certainly it is equally applicable to criminal cases. When a juror states, as did juror Lucas, that “it would be difficult for me to make an impartial decision” and that he has the propensity in these cases to “be not completely impartial,” and on the question of whether he could decide without any prejudice toward the defendant, he says, “I think it would be difficult for me to do,” and finally, when he says that he does not know whether the measure of proof required to convince him beyond a reasonable doubt in this type of case would be less than in any other case, he does not meet the test of being a disinterested and unprejudiced juror and should not be permitted to remain on the panel. If such a juror serves in the trial of a criminal case, the defendant thereby takes on a burden which he is not supposed to have. If such prospective juror does not serve only because he is removed on the basis of the exercise of one of defendant’s peremptory challenges, the defendant thereby has fewer than the number of true peremptory challenges to which he is entitled.

Certainly a clear line of demarcation cannot be drawn as to when a challenge for cause should or should not be sustained. Some cases will be ones where an appellate judge might have done differently but at the same time cannot say that there was an abuse of discretion. Each case must be judged on the particular facts in that case. Under the facts here involved, it is our judgment that a sound exercise of judicial discretion would have dictated that venireman Lucas be excused for cause.

The judgment is reversed and the cause remanded.

All of the Judges concur.

      . For convenience, we sometimes refer to this type check as a no funds check.


text:
    STATE of Missouri, Respondent, v. William SYKES, Appellant.
    No. 50210.
    Supreme Court of Missouri, Division No. 1.
    Feb. 14, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied March 14, 1966.

      Thomas F. Eagleton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
    Peter J. J. Rabbitt, St. Louis, for appellant.
   HOUSER, Commissioner.

William Sykes was charged with illegal sale of a narcotic drug and three prior felony convictions. Represented by counsel, tried before a jury, he was found guilty of illegal sale of a narcotic drug as charged. The trial judge found him guilty under the Habitual Criminal Act. His punishment was fixed by the court at 20 years’ imprisonment in the penitentiary. No motion for a new trial was filed. A notice of appeal was not filed within the time prescribed by Criminal Rule 28.03, V.A.M.R. This Court made a special order allowing an appeal under Criminal Rule 28.07. On application of the defendant the circuit court was ordered to appoint counsel to represent defendant on appeal, which was done. On application defendant was allowed to proceed in forma pauperis. After defendant had filed numerous requests and petitions a full and complete transcript of the proceedings, including the voir dire examination, all of the testimony at the trial and the closing arguments of counsel, was finally prepared- and filed and a copy delivered to defendant’s counsel. The latter elected not to- submit a brief on appeal or to orally argue the case in this Court. The case was submitted on the brief of respondent only.

We are precluded from a consideration of any matters required to be preserved in a motion for new trial for the reason that, as indicated, no motion for a new trial was filed. State v. Parker, Mo.Sup., 310 S.W.2d 923 [1]. In this situation it is our duty under Criminal Rule 28.02, on the record before the Court, to render Judgment as to the sufficiency of the information or indictment, verdict, judgment and sentence.

William Sykes was charged by substitute information in lieu of indictment alleging three prior felony convictions, and that on May 28, 1962 at the City of St. Louis, Missouri, not then and there being an apothecary or pharmacist, William Sykes unlawfully annd feloniously sold to one James Snokhaus a certain narcotic drug, to-wit: 8.380 grams of the plant, Cannabis Sativa, commonly called marijuana, at and for the price and sum of $26 in legal currency of the United States of America. The narcotics charge was drawn under § 195.020, V.A.M.S. making it unlawful for any person to sell any narcotic drug except as authorized by the Narcotic Drug Act, and § 195.010(3), V.A.M.S. defining an apothecary, (17) defining narcotic drugs as meaning cannabis, and (5) defining cannabis as including the plant Cannabis Sativa. The information fully informed the defendant of the crime with which he was charged, contained every essential element of the offense as defined by the Narcotic Drug Act and clearly and sufficiently alleged the facts relating to the alleged sale of the narcotic drug. Three felony convictions of William Sykes in the Circuit Court of the City of St. Louis of burglary second degree and stealing $50 or over were duly alleged in proper form. The information fully and adequately stated the dates, the charges, the convictions, the sentences (imprisonment in the Intermediate Reformatory of the State of Missouri), imprisonment in accordance with the sentences, that they were to run concurrently, that they were served concurrently, and that he was discharged on January 7, 1959 after and upon lawful compliance with the sentences.

Out of the hearing of the jury and prior to the submission of the case to the jury the trial judge heard amply sufficient evidence of the prior convictions, sentences and subsequent imprisonment, before May 28, 1962, to find and the court did determine that this defendant had been previously convicted of and sentenced on the three felonies charged.

The jury verdict (omitting caption: “We, the jury in the above entitled cause, find the defendant guilty of Illegal Sale of a Narcotic drug, as charged. James H. Arendall, Foreman”) is sufficient in form and substance. A finding of guilty “as charged” was tantamount to finding him guilty “as charged in the information,” which was in one count only, State v. Ryan, Mo.Sup., 275 S.W.2d 350, 353 [8], and the verdict was sufficiently responsive to the issues. That the verdict did not assess the punishment was proper since the case was submitted under the Habitual Criminal Act. State v. West, Mo.Sup., 356 S.W.2d 880 [5],

The 20-year term of imprisonment assessed as punishment was within the limits of § 195.200(1), V.A.M.S., which provides a maximum punishment of not more than twenty years in a state correctional institution for a first offense under the Narcotic Drug Act.

The transcript of the record proper, the “Minutes of Proceedings” and the supplemental transcript all show defendant’s presence and the presence in open court of defendant’s attorney and counsel, at the time of allocution and sentencing. The minutes have been amended by a green-ink interlineation to indicate that defendant appeared for sentencing without his attorney. (We note that the trial judge wrote with green ink in approving the transcript of the record proper.) There is nothing in the record to indicate the making of a nunc pro tunc order authorizing such an amendment of the record. A court speaks through its records and we must take the judgment as the record of what happened. The judgment shows that on' sentencing day the defendant came in person “and in the presence of Morris Hat-chett, Attorney and Counsel in open Court, * * *.” On the record the allocution and sentencing were unexceptional.

The sentence and judgment are proper in form and substance. They follow the verdict returned by the jury and the finding of the court on previous convictions. They are consistent with the punishment fixed by the court. The court allowed defendant the time he spent in jail. The sentence and judgment comply with Criminal Rules 27.08, 27.09 and 27.11.

The original transcript included the information, verdict, judgment and sentence, but properly included no testimony since no motion for new trial had been filed. Overlooking defendant’s failure to file a new trial motion the court inadvertently ordered the preparation and filing of a full and complete transcript. This was not necessary but now that the supplemental transcript is here we will in this case assume the further burden of reviewing the sufficiency of the evidence to support the conviction of illegal sale of a narcotic drug.

The state’s evidence. Two federal narcotics agents and a chemist with the Alcoholic and Tobacco Tax Division of the U. S. Department of Internal Revenue testified to the following: On May 28, 1962 agent S had an appointment to meet one Jimmy Lewis at Silver Drug Store, 5101 Page Avenue, in St. Louis. Agent S, dressed as a,n undercover agent, arrived in an automobile and entered the drug store at about 5:30 p. m. The driver, agent D, parked the car nearby and waited in it. At 6 p. m. Jimmy Lewis, a special employee of the government who works with the narcotics agents in the apprehension of violators, entered the store. After a brief conversation between the two men Lewis left. Agent S remained in the store. Two or three minutes later Lewis returned to the store and handed agent S a • small newspaper-wrapped package. Agent S examined it and found the package to contain green vegetable matter. After a brief conversation Lewis left the drug store, agent S remained, and Lewis later returned with William Sykes, the defendant. Lewis introduced Sykes to agent S, who invited the two men to join him behind a partition at the rear of the store. On the way back to the partition agent S showed the package to Sykes and asked Sykes if he was really expecting to receive two dollars for it. After a brief pause Sykes said “Yeah, I have been receiving that much for stuff not as good.” Agent S reopened the package, made a complaint about the quantity and then asked Sykes “What about the rest of it?” Sykes answered that he left it in the car and that it was “as good as” the package. Lewis volunteered to go to the car and bring back the remaining merchandise. Lewis left and while he was gone Sykes and agent S engaged in general conversation. Lewis returned shortly and handed agent S a large brown paper sack. Agent S looked inside, saw several packages similar to the one previously described, emptied the contents of the sack onto a shelf and counted out seventeen additional packages. Three packages, selected at random, contained green vegetable matter. The packages were about 3 by 7 inches in size. Agent S • bargained with Sykes for the eighteen packages. Sykes first asked $30. Agent S stated that was too much money. Sykes said that he got more than that on the street. Agent S, whose identity as a government agent was of course not made known, reminded Sykes that dealing on the street involved considerable risk whereas dealing with him did not and therefore a discount was in order. Sykes then agreed to take $26. Agent S handed Sykes twenty-six one dollar bills which had been marked. Lewis and Sykes left the store. Lewis gave Sykes $1 for cab fare. Lewis then returned to the store, where Lewis and agent S initialed the eighteen packages. The two rejoined agent D in a back alley. Agent S showed agent D the packages. Agent D examined the contents of two or three packages and then initialed all of them. The agents transported the eighteen packages to their office in the federal building and placed them in a locked drawer for safekeeping. The next day agent S removed them from the locked drawer, weighed the green vegetable matter on a scale, placed it in a container, taped it and placed the container and the eighteen wrappers in a manila envelope 7x9 inches in dimensions, sealed the envelope in the presence of agent D and forwarded it by registered mail to a U. S. governement chemist at Omaha, Nebraska for analysis. The chemist received them on May 31, 1962, initialed them, placed a laboratory number on them, performed a microscopic study of the material submitted, made a color test and came to the conclusion that the green material was marijuana — Cannabis Sativa.

William Sykes took the stand in his own defense and testified to these facts : Jimmy Lewis, who frequented Sykes’ shoeshine parlor, asked Sykes if he wanted to make some extra money, told him he had a friend he wanted him to meet, took Sykes to the drug store at Page and Kingshighway on May 28, 1962 and introduced him to a man whose name was said to be Jim and who was supposed to be a pharmacist there. The so-called pharmacist (who was in fact agent S) wanted Sykes to take money, go out and make buys from people who had marijuana. He mentioned money to Sykes. Sykes told him that he knew nothing about this kind of business, knew no one selling such stuff, had nothing to do with it, could not “make any business” for him, turned and left the premises. Sykes specifically denied possession of marijuana, denied selling any marijuana to the “pharmacist” Jim or anyone else and denied receiving any money from Jim. Sykes admitted that he had never been licensed by the state as an apothecary or pharmacist.

These conflicting versions of what happened at the drug store on May 28, 1962 created a direct issue of fact on the question whether Sykes sold marijuana to agent S. The state’s evidence, together with Sykes’ admission that he was not a licensed pharmacist or apothecary, made a submissible case of selling a narcotic drug under § 195.020, V.A.M.S. The evidence is amply sufficient to sustain the conviction.

No error appearing the judgment is affirmed.

WELBORN and HIGGINS, CG, concur.

PER CURIAM:

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

All of the Judges concur.


author: HENLEY, Judge.

text:
    STATE of Missouri, Respondent, v. W. A. BROOKSHIRE, Appellant.
    No. 51440.
    Supreme Court of Missouri, Division No. 1.
    Feb. 14, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied March 14, 1966.

      Norman H. Anderson, Atty. Gen., Louis C. Defeo, Jr., Jefferson City, Asst. Atty. Gen., for respondent.
    W. A. Brookshire, pro se.
   HENLEY, Judge.

This is a proceeding by motion under Rule 27.26 (references to rules are to Rules of the Supreme Court of Missouri and V.A.M.R.) to vacate and set aside a judgment entered October 16, 1961, by the circuit court of Cooper County sentencing defendant to imprisonment in the penitentiary for a term of ten years on his conviction of murder in the second degree. That judgment was affirmed by this court on April 8, 1963. See: State v. Brookshire, Mo., 368 S.W.2d 373.

Defendant’s motion was filed in the trial court on November 21, 1964. On February 1, 1965, that court found on examination of the motion and the files and records of the case (1) that no claim for relief was stated in the motion and (2) that the issues raised by the motion had been adjudicated adversely to defendant by this court in State v. Brookshire, supra. Based on these findings the court entered an order on the same day overruling defendant’s motion without a hearing. Only in passing do we note that but for reasons compelling other disposition of this case, the order of the court would be affirmed, primarily for the reason stated in what we have designated above as (2) of the trial court’s findings.

The state has moved to dismiss the appeal for the reasons: (1) that the notice of appeal was not timely filed, and (2) that the transcript on appeal was not timely filed. There is merit in both grounds, but we need treat only with the first. As stated, the order overruling defendant’s motion to vacate was entered February 1, 1965. On February 10, 1965, defendant filed a notice of appeal with the circuit clerk, but failed to deposit with the clerk the docket fee of $10. During oral argument before this court the defendant stated: “When I entered this penitentiary I had more than $300,000 worth of property in fine land, in stocks and bonds, in registered Hereford cattle. Now then, at the suggestion of someone on this court, I don’t know who, a trustee was appointed and seized all my property and has denied me funds. The little $10 docket fee that was required to be filed — I didn’t have — I had 39 cents. I never signed as a pauper, I never shall sign as a pauper, and I think this appeal should be heard on its merits.” The docket fee was deposited with the circuit clerk on April 1, 1965, by a person described by the clerk as Trustee for W. A. Brookshire.

Rule 27.26 provides that: “An order sustaining or overruling a motion filed under the provisions of this Rule shall be deemed a final judgment within the purview of Rules 28.03 and 28.04.” Rule 28.03 provides: “After the rendition of final judgment * * * [a]n appeal shall be taken by filing a notice of appeal in the same manner and within the same time after final judgment as provided for civil cases.” Civil Rule 82.04 provides: “When an appeal is permitted by law from a trial court and within the time prescribed, a party * * * may appeal from * * * [an] order by filing with the clerk of the trial court a notice of appeal. No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the * * * order appealed from becomes final. * * * The docket fee of $10.00 in the appellate court shall be deposited with the clerk of the trial court at the time of filing the notice of appeal. No notice of appeal shall he accepted and filed by the clerk of any trial court unless said docket fee is deposited therewith.” (Emphasis supplied.)

The order from which defendant attempts to appeal became final not later than March 3, 1965, no motion for new trial having been filed. Had his notice of appeal been filed and the docket fee deposited within ten days thereafter his appeal would have been timely. Civil Rule 82.05; State v. Ninemires, Mo., 306 S.W. 2d 527, 528-529 [1], Instead, the docket fee was deposited with the circuit clerk on the twenty-ninth day thereafter.

There is nothing in the transcript or records of this court tending to show that the notice of appeal was filed pursuant to a special order of this court as authorized by Civil Rule 82.07(a). Defendant has refused to proceed in forma pauperis.

In Kattering v. Franz, 360 Mo. 854, 231 S.W.2d 148, 150 [2], we held: “* * * that there can be no valid filing of a notice of appeal until the docket fee is paid * * *.” Alberswerth v. Lohse, Mo.App., 232 S.W.2d 213. This court does not have jurisdiction of and must dismiss an appeal from an order overruling a motion filed under Rule 27.26, where the notice of appeal is not timely filed. State v. Warren, Mo., 344 S.W.2d 88, 90 [3]. This notice of appeal was not timely filed because the docket fee, without which the notice of appeal is ineffective, was not deposited with the circuit clerk within ten days after the order became final; therefore we do not have jurisdiction of the appeal.

The appeal is dismissed.

HOLMAN, Acting P. J., and DON-NELLY and STORCKMAN, JJ., concur.

HYDE, P. J., not sitting.