author: BARRETT, Commissioner.

text:
    In the Matter of the Assessment of: ST. JOSEPH LEAD COMPANY, a Corporation. ST. FRANCOIS COUNTY, Missouri, School District of Flat River, Missouri, School District of Doe Run, Missouri, School District of Elvins, Missouri, and School District of Esther, Missouri, Respondents, v. STATE TAX COMMISSION of Missouri, James M. Robertson, John O. Williams, J. Ralph Hutchinson, Commissioners of the Missouri State Tax Commission, and St. Joseph Lead Company, Respondents, St. Joseph Lead Company, Appellant.
    No. 48688.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1961.
    Motions for Rehearing or to Transfer to Court en Banc or to Modify Opinion Denied Jan. 8, 1962.
    Opinion Modified on Court's Own Motion Jan. 8, 1962.

      W. Oliver Rasch, Bonne Terre, John S. Marsalek, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for appellant, St. Joseph Lead Co.
    Raymond R. Roberts, Pros. Atty., St. Francois County, Charles G. Hyler, Asst. Pros. Atty., St. Francois County, Farming-ton, Rush H. Limbaugh, Cape Girardeau, for respondents.
   BARRETT, Commissioner.

This appeal by St. Joseph Lead Company involves the valuation of its property in St. Francois County for the purposes of taxation. In general the property consists of approximately 45,000 acres of land, known as “The Lead Belt,” in which the company has both mineral and surface rights. The appellant’s principal business in St. Francois County is the mining, processing and milling of lead and its by-products. In the several areas devoted to mining and milling ore, some of them for almost 100 years, there are all the vast installations and complicated machinery necessarily incident to these operations. The 45,000 acre area is comprised of hundreds of tracts of land acquired over the years and that not devoted to mining consists of farmland, some timberland, and some of it has been developed into business and residential property, and a part of all these properties or interests has been sold or leased with mineral rights reserved.

As of January 1, 1959, the assessor and, after applications for review, other taxing authorities of St. Francois County valued and assessed the St. Joseph Lead Company’s property at $12,205,100.00. The company appealed to the State Tax Commission and on December 21, 1959, the commission reduced the assessment to $6,657,720.00 and the company immediately paid its taxes for that year based upon that valuation. In January 1960, St. Francois County and four school districts, proceeding under the Administrative Procedure and Review Act, filed a petition for review in the Circuit Court of St. Francois County and that court found that the State Tax Commission had abused its discretion in refusing to grant the county and the school districts a continuance and that its decision was “wholly unsupported by and (is) contrary to competent and substantial evidence upon the whole record.” Whereupon the circuit court reversed the finding and order of the tax commission and fixed the assessed valuation of the lead company’s property as it had been fixed by the St. Francois County Board of Equalization, at $12,205,100.00. The St. Joseph Lead Company has, of course, appealed to this court from that judgment.

At the outset it should be noted that the appellant has briefed thirty-one separate points and in reply the respondents have cited long lists of cases, fifty-one under one point and thirty-one under another and so on. The record is long and the case as a whole extremely complex but at this stage of the proceeding some of these numerous points have indeed become minor if not irrelevant and some of the analogies the parties would draw from the cases dealing with common-law pleading and practice are apparent but not particularly helpful or persuasive. At this juncture questions concerning the sufficiency of petitions to the board of equalization, to the tax commission, or to the circuit court on review, notice to school districts and similar matters (May Department Stores Co. v. State Tax Commission (Mo.) 308 S.W.2d 748) only tend to confuse essential and meritorious problems. The numerous points, the lists of cases, the analogies and the record have all been dutifully considered with such understanding of several very technical and complex subj ects as limited capacity and obviously limited technical knowledge permit. In this opinion only those matters deemed necessary to a disposition of the appeal and the exhaustion of this court’s function will be considered in detail.

The appellant’s first point is that the circuit court lacked jurisdiction to entertain the respondents’ petition for review, therefore it is urged that the court erred in overruling its motions to dismiss the review petition. The principal reason asserted for this proposition is that since the State Tax Commission, on appeal from the county board of equalization, fixed the valuation and reduced the assessment the respondents, the county and school districts, are conclusively bound by the order and “had no right to a review of the decision.” In part this argument appears to be particularly directed against the school districts who were permitted to intervene before the tax commission. But at this point in the proceeding this particular argument and the contention that the prosecuting attorney, “when (so) called upon,” is charged with the duty “to represent the commission in any litigation which it may wish to institute or in which it may become involved in the discharge of its duties” (V.A.M.S. § 138.410(2) ) are lacking in persuasive supporting force. It is not necessary to say whether the commission erred in permitting the intervention of the school districts or to consider whether they could employ expert witnesses to make appraisals. Before the tax commission, in the circuit court and here, the county represents whatever interest or rights the several school districts may have had and their status or rights are now immaterial and certainly unnecessary to a determination of the basic problems involved upon this appeal. And so it is with the prosecuting attorney, he may on occasion be charged with the duty of assisting or representing the tax commission but he is also charged with the duty of representing the political unit in which he was elected, the county. V.A.M.S. § 56.070. And in this proceeding the tax commission, if it needed representation, and the public, other than the public interest represented by the county, were represented by an assistant attorney general (V.A.M.S. § 138.410(2) ) and there was no basic conflict of interest and all public parties and their separate public interests were represented. And of course the “private rights” and interests of the appellant, who after all instituted the review proceedings before the board of equalization and the tax commission, were indeed adequately represented by respected counsel.

In its essence the appellant’s contention that the county and school districts do not have the right, under the Administrative Procedure and Review Act (Ch. 536 RSMo 1959, V.A.M.S.), to a judicial review of a decision of the tax commission lowering valuations is that the constitution and statutes have provided a complete and comprehensive plan or scheme for the review and correction of tax assessments. It is urged, since the ultimate authority and responsibility for administering the plan have been vested in the State Tax Commission and, since the respondents are subordinate agents or units of the state, that it is not within their province or power to challenge the commission’s determination. In support of this basic contention it is said that counties and school districts have only such powers as have been granted by the legislature, that the right to judicial review is statutory and has not been specifically conferred on the respondents, that the decisions of administrative tribunals affecting “private rights” only are subject to review and, finally, that the respondents are not “person (s) aggrieved” within the meaning of the administrative review act, — “Any person * * * who is aggrieved by a final decision in a contested case, whether such decision is affirmative or negative in form, shall be entitled to judicial review thereof.” V.A. M.S. § 536.100.

Some of these matters need not be considered in detail; admittedly, the legislature may grant the right of appeal or review of tax assessments to either the taxpayer or the state (or one of its political units), and it may also limit or deny the right to either the taxpayer or the state. L.R.A.1915B, pp. 875, 877; Birmingham Drainage Dist. v. Chicago, B. & Q. R. Co., 274 Mo. 140, 202 S.W. 404. And, the legislature has not in specific terms granted the right of review to counties; on the other hand, it has not specifically denied the right. In some circumstances, as when there is not a contested case by parties to the proceeding, or there is an intercounty equalization, there are tax commission orders that even a taxpayer asserting private rights may not have reviewed. May Department Stores Co. v. State Tax Commission, supra; Foster Bros. Mfg. Co. v. State Tax Commission, (Mo.) 319 S.W.2d 590. And, on occasion, some states have denied the right of review to political subdivisions or their taxing officials when the right had not been specifically granted for the asserted reason that they were not an “aggrieved party” within the meaning of the tax statute (In re Proposed Assessment by Treasurer of Woodbury County v. Lytle Investment Co., 219 Iowa 1099, 260 N.W. 538), although the same court had previously held that the general civil code provision authorizing appeals by “any person who may feel aggrieved” included the city and local board of equalization. Farmers’ Loan & Trust Co. v. City of Newton, 97 Iowa 502, 66 N.W. 784, 785. Also, admittedly, our constitution and statutes contemplate a comprehensive plan for the valuation of property for tax purposes and in general the administration of the over-all scheme has been entrusted to the State Tax Commission. Const.Mo. Art. 10, Sec. 14, V.A. M.S.; Ch. 138 RSMo 1959, V.A.M.S.; Mercantile Trust Co. v. Schramm, 269 Mo. 489, 190 S.W. 886. But as will subsequently appear from the problems involved in this appeal, the over-all plan is not as plain as the appellant assumes. But the fact that the commission may in certain circumstances be the final arbiter of valuation, or the fact that there is no specific legislation on the subject, do not necessarily mean that in any event a political subdivision, a county, may or should be denied the right of judicial review. In the first place, whether a county or other interested political unit may appeal is a matter of statutory construction and for that reason “no fundamental generalizations can be made.” Annotation 5 A.L.R.2d 576; 73 C.J.S. Public Administrative Bodies and Procedure § 176, p. 517. In the second place, whether there is or should be judicial review of the actions of administrative agencies is a question of policy (42 Am.Jur., Secs. 186-187, pp. 550-551), and the fundamental problem here is whether, considering all relevant constitutional and statutory enactments, that policy is manifest and includes a county.

That Missouri’s policy is manifest cannot be questioned. It is now a part of the fundamental law, the constitution provides that “All final decisions * * * of any administrative officer or body * * * which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law; and such review shall include the determination whether the same are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record.” Const. Mo. Art. 5, Sec. 22. Thus, while the language “private rights” is employed, the general policy of judicial review of administrative decisions is firmly established. The general statute relating to appeals does not mention either public or private rights and the underscored language indicates the only limitations: “Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his appeal to a court having appellate jurisdiction * * *.” V.A.M.S. § 512.020. While this statute may or may not govern appeals from administrative agencies it is expressive of the state’s general policy of allowing appeals almost as a matter of right. In any event, pursuant to the constitutional mandate, “as provided by law,” and its general declaration of public policy, the legislature enacted the Administrative Procedure and Review Act, Chapter 536 RSMo 1959, V.A.M.S. It is not necessary to set forth all the provisions of that act or to discuss its many purposes, in so far as it may bear on this appeal it contains these significant provisions. The administrative tribunal must give notice of its findings and every decision “in a contested case” must be in writing. V.A.M.S. § 536.090. “Any person who has exhausted all administrative remedies provided by law and who is aggrieved by a final decision in a contested case * * * shall be entitled to judicial review thereof * * V.A.M.S. § 536.100. The act does not mention or distinguish between what the appellant calls public and private rights and public policy is again stated and the emphasis is upon “Any person * * * aggrieved * * * in a contested case.”

The statutes relating to the assessment and levy of taxes in the first instance, by the county assessor, provide that “Every person who thinks himself aggrieved by the assessment of his property may appeal to the county board of equalization.” V.A. M.S. § 137.275. But when we come to the equalization and review of assessments, Chapter 138 RSMo 1959, V.A.M.S., particularly by the State Tax Commission, it is provided without limitation that “The action of the commission, or member or agent thereof, when done as provided in this section, shall be final, subject, however, to review in the mawner provided in sections 536.100 to 536.140 RSMo, * * * ” V.A.M.S. § 138.470(4). Prior to 1957 this statute provided that the commission’s decision was final “subject, however, to the provisions of section 22, article V of the Constitution of Missouri and laws enacted thereunder.” But in 1957 the General Assembly specifically amended the statute by deleting the reference to the constitutional provision and expressly providing that the commission’s action was final but subject to review under the provisions of the Administrative Procedure and Review Act. Thus the public policy of judicial review of the actions of administrative tribunals and of the State Tax Commission in particular is indubitably established. It should be noted in passing that the latter statute, specifically relating to the tax commission, does not mention “private rights” and it does not specify who may seek review, neither does it limit the right, it simply provides that the commission’s final action is “subject, however, to review in the manner provided in sections 536.100 to 536.140.”

Since the state’s public policy of judicial review of administrative decisions, and of final orders of the State Tax Commission in particular, is manifest, are there any reasons, legal or practical, public bodies should be denied that important right and additional safeguard? Here, succinctly, the legal question is whether a county may reasonably fall within “Any person * * * who is aggrieved * * * in a contested ease.” This is no place to enter into a discussion of legal philosophy, but in the appellant’s emphasis and insistence upon “pri-vate rights” as a delimiting term of art there may be some failure to carefully distinguish between “public law” and “private law” on the one hand and “public rights” and “private rights” on the other hand. See these terms in Webster’s New International Dictionary, 2d ed.; Holland, Jurisprudence, pp. 123-146; and State ex rel. Police Retirement System of City of St. Louis v. Murphy, 359 Mo. 854, 861, 224 S.W.2d 68, 72; Smith v. Hendricks, (Mo.App.) 136 S.W.2d 449, 455. The first part of the constitutional mandate (Art. 5, Sec. 22) is procedural (Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647) and the use of the words “private rights” in setting forth the minimum standard of review was not necessarily intended as a limitation or restriction on the legislative power to provide for judicial review of “public rights” upon the initiative of an appropriate “public body.” The scope of review is governed by the latter, more inclusive constitutional provision of whether the administrative decision is authorized by law and whether it is supported by competent and substantial evidence upon the whole record. “It would seem too plain for serious question that the legislature had and has the power and authority to provide for any scope of judicial review it may desire, so long as the provisions made are not in conflict with or repugnant to the federal .and state constitutions.” State ex rel. St. Louis Public Service Co. v. Public Service Commission, 365 Mo. 1032, 1042, 291 S.W.2d 95, 102.

Bearing more directly upon the pre•cise question of whether a county may have -a final decision of the State Tax Commission judicially reviewed are these further • considerations. The State Tax Commission with the City of St. Louis and the Board of Education of the City of St. 'Louis as interveners all joined in an appeal to this court from the judgment of a circuit court reducing tax assessments. Foster Bros. Mfg. Co. v. State Tax Commission, (Mo.) 319 S.W.2d 590. And in Taney County v. Empire District Electric Co., (Mo.) 309 S.W.2d 610, the county together with school and road districts instituted and prosecuted in the circuit court a petition to review an order of the State Tax Commission reducing the electric company’s valuation and it must have been assumed that these political units had the right to a judicial review and that the circuit court had jurisdiction to entertain their petition. Kearney County v. Hapeman, 102 Neb. 550, 552, 167 N.W. 792. While the State Tax Commission was created by constitutional mandate to equalize assessments between counties and to hear appeals from local boards (Const.Mo. Art. 10, Sec. 14), taxes are levied by counties and they have such additional taxing powers as the legislature may grant (Const.Mo. Art. 10, Secs. 1, 11(a)) and, representing the state at large and in some measure themselves and other local units of government, counties have indeed a vital interest in all questions relating to the levy and assessment of taxes. Kearney County v. Hapeman, supra. Thus, not only is the county an “interested” party, this proceeding is definitely a “contested case” within the meaning of the Administrative Procedure and Review Act, section 536.010. Koplar v. State Tax Commission, (Mo.) 321 S.W.2d 686, 693. In part, the appellant’s argument assumes that there is a contest and a conflict of interest between the State Tax Commission and the county. But in this proceeding the commission acted in its appellate quasi-judicial capacity (Const.Mo. Art. 10, Sec. 14) and the contest is between the St. Joseph Lead Company and St. Francois County. In any event, in summary, the county had an obvious interest in the subject matter of the proceeding and was an “interested party” in a “contested case” and therefore was an “aggrieved” party or person within the meaning of the relevant statutes. V.A.M.S. §§ 138.470(4), 536.100.

It is not suggested that there is any impropriety, in a moral or ethical sense, in allowing political units the right of judicial review and no practical reasons of unfairness are advanced. The company has paid its 1959 taxes on the commission’s reduced valuation and there can be no unjust loss to the appellant. In view of all these considerations, the county had the right to judicial review and the circuit court had jurisdiction to entertain the petition.

The commission found that the county’s valuation was discriminatory, unlawful and unfair. And in its brief here one of the appellant’s points is that “no substantial basis appears in the evidence to support the assessment made by the assessor of $12,-205,100.00.” The respondents do not challenge either the commission’s finding or the appellant’s statement and so it is assumed as a fact that there is no evidential support for the county’s valuation. The respondents do not contend, as the circuit court found, that the commission’s valuation is not supported upon the record, but to point up and dispose of the principal problem it is necessary to briefly consider this phase of the proceeding. In its petition to the commission the appellant asserted that the county’s assessment of $12,-205,100 was “more than the property is worth” and should be reduced to its “actual value” which the petitioner believed “to be 30% of the appraised value determined by Roy Wenzlick & Co.,” (“economists, appraisers, counselors and publishers”).

In support of its claim the lead company offered as a witness its geologist, who described in some detail the company’s property, principally its mineral deposits and reserves, their depletion and future and in general the economic condition of the industry. But its principal witness, in fact the only witness as to value, was Mr. Randall, the manager of the appraisal department of Roy Wenzlick & Co. The substance of his testimony was that he and his staff had made a detailed appraisal of the St. Joseph Lead Company property in St. Francois County for the purpose of “estimating” its “fair market value.” His definition of “fair market value” was “the highest price in terms of money that a willing and well-informed buyer would be warranted in paying a well-informed (seller) and (an) equally well-informed seller (would be) justified and (in) accepting for a property, neither party being under compulsion or duress, and a reasonable period of time to dispose of the property.” In arriving at fair market value Mr. Randall employed three approaches, the income approach, the market data approach and the summation approach. Applying each of these approaches he arrived at valuations of $20,304,000, $20,065,761 and $22,946,546. The details of these evaluations are set forth in six formidable volumes of statistics and data and one volume of testimony, but for the purposes of this appeal the details need not be noted.

The commission, among other findings, found in its conclusions of law that (1) “The Constitution provides that real property shall be assessed for tax purposes at its value or such percentage of its value as-may be fixed by law” and (2) “There is no-such thing as an absolute true value of land. The values mentioned in the Statutes are the valuations of the officials whose duty it is to make them. Land is. not like commodities which have a fixed market price at a given period. Its value is determined always by the estimate of the party-who values it.”

In connection with Mr. Randall’s theories, and the commission’s conclusions of law it should be noted, at least parenthetically, that the statutes require that the county assessor shall assess property “at its true-value in money.” V.A.M.S. § 137.115. When it comes to the equalization and review of tax assessments, the statutes speak of “real value” and “true value as compared with the average valuation of all the-real and tangible personal property of the county.” V.A.M.S. § 138.050. And, according to the statutes specifically applicable to the State Tax Commission, the commission may “raise or lower the assessed valuation” of any property (V.A.M.S. § 138.380(1)) and in equalizing valuations-among counties it is the duty of the commission to add to the valuations of property “valued below its real value in money such per cent as will increase the same in each ■case to its true value” and deduct from ■overvalued property “in money such per cent as will reduce the same in each case to its true value.” V.A.M.S. § 138.390(2). ■Other than the inferences one might draw from its conclusions of law, the commission did not indicate either the theory or the ■evidence upon which it based its valuation, the commission found “that the fair, reasonable and lawful valuation of petitioner’s property, above described, when assessed in the same relation to its value as other real property in said County” was $6,657,720. The statutes (sections 137.115, 138.050 and 138.390) do not define the terms “true value in money,” or “real value,” nor do they set forth standards, methods or theories by which the fact is to be determined. And, other than inferentially perhaps, it does not appear from this record what relationship or bearing Mr. Randall’s “fair market value” had to these vague statutory standards.

The appellant has briefed at length the point that the circuit court erred in holding that the commission’s finding was unsupported upon the whole record. In so contending one of its points is that “The Hoskold formula, used by Mr. Randall in his valuation on the income approach, is the proper method of evaluating mining properties, and has been approved by the courts.” And, along with other factors and considerations, the so-called Hoskold formula has been given some recognition in the valuation of mining property. State v. Oliver Iron Mining Co., 198 Minn. 385, 389, 270 N.W. 609, 611; Village of Aurora v. Commissioner of Taxation, 217 Minn. 64, 14 N.W.2d 292. But in Minnesota, unlike Missouri, there has been a systematic effort to scientifically and fairly value timberland and mining properties for the purpose of taxation. The effort, however, has not been completely successful, and it has been pointed out that in some situations the Hoskold formula and “the analytical appraisal methods” are of questionable weight and result in “lack of uniformity when compared to valuation methods used for agricultural or urban real estate and business properties.” Roberts, Tax Valuation of Minnesota Iron Ore, 34 Minn.L.R. 389, 408-414. If these methods result in a lack of uniformity and produce subclassifications of real estate for the purposes of taxation there is a violation of the statutory standards and requirements. Drey v. State Tax Commission, (Mo.) 345 S.W.2d 228, 237; Cupplcs Hesse Corporation v. State Tax Commission, (Mo.) 329 S.W.2d 696, 701. This is not to criticize the commission but upon this record the only evidence before it of the value of the appellant’s property was Mr. Randall’s appraisal. All this discussion is to place in context the important problem; it bears upon and is a necessary preliminary to the question whether, as the circuit court found, the commission abused its discretion in refusing to grant the respondents a continuance.

The relevant chronology is that on July 16, 1959, St. Joseph Lead Company appeared before the Board of Equalization and in the same month before the Board of Appeals. On September 29, 1959, its petition for a review of the assessments was filed with the State Tax Commission and a copy delivered to the county assessor. On October 20, 1959, the commission notified the parties, including the county clerk, that a hearing would be held at Farmington on December 8, 1959. The hearing commenced on December 8 and extended from December 9 to December 16 and on December 21, 1959, the commission gave its decision. On the first day of the hearing, after some other preliminary matters, the respondents filed an application for a continuance together with supporting affidavits and, in addition, offered supporting testimony. The appellant opposed the application for a continuance and the commission denied it.

It is not necessary to detail all the evidence relied on in support of the application. The respondents pointed to the complexity and magnitude of the problem and to the difficulties they had encountered. They had sought data, reports and in formation from various state and federal agencies, a large part of which they had not received. In their affidavits and testimony the respondents’ representatives pointed out that to properly prepare for a valuation hearing and present evidence it was necessary to have a comprehensive appraisal by at least one qualified appraisal expert. And, of course, there was no such appraiser available in St. Francois County and the county’s officials were not qualified to make such a study. Then too there was the problem of the respondents’ authority to employ an appraiser, even now the appellant contends that they may not lawfully do so (a problem not now necessary to a disposition of this appeal). The county officials secured a list of qualified appraisers and began contacting them. After negotiating with one they were finally informed that some of its employment “involved mining companies” and there might be “a conflict of interest.” Finally an appraiser was found who accepted employment. This man testified that it would require a minimum of ninety days to appraise the property and of course there had not been time since his employment on November 25 to make the appraisal. Mr. Randall and his staff, the appellant’s expert, started their appraisal at “the end of August” 1959, and it was “completed Friday or Saturday (December 4 or 5) but not bound up and assembled,” and the hearing was set on December 8.

The respondents did not and could not make the customary offer of proof of what an appraisal on their behalf would show, but the immediate and practical consequence of their not having the benefit of an appraisal and an expert’s advice was that they were all but defenseless and necessarily groped. Their only recourse was to attack the appellant’s appraisal. They cross-examined Mr. Randall in detail and at length but of course with indifferent success. Their appraiser, Mr. Hetlage, criticized the approaches and methods employed by Mr. Randall, he said that they omitted important considerations, and, in short, it was his opinion that their appraisal did not reflect a true valuation. Nevertheless, as indicated, the result was that the only evidence before the commission as to the value of this extensive property was the testimony of the appellant’s appraiser. Again, this is not to criticize the commission and it is not to express an opinion as to how or upon what theory the case should be tried or to indicate what factors should be considered or what evidence should be heard. It is to say, however, that if the case is to be tried and the valuation of the company’s property for the purposes of taxation determined by compurgation of expert appraisers, fairness would certainly demand that the respondents be given an equal and reasonable opportunity to present such a witness and their theory of valuation. In these briefly noted but particular circumstances there was a prejudicial abuse of discretion in the commission’s refusal to grant a continuance. Sup.Ct.Rule 100.07 (b) (7), V.A.M.R.; V.A.M.S. § 536.140, subd. 2(7); Consolidated Edison Co. of New York v. National Labor Relations Board, 305 U.S. 197, 225, 59 S.Ct. 206, 215, 83 L.Ed. 126, 138; In re Ackroyd’s Case, 340 Mass. 214, 163 N.E.2d 271; 42 Am.Jur. (Public Administrative Law), Sec. 144, p. 487; 73 C.J.S. Public Administrative Bodies And Procedure § 133, p. 459.

Therefore, the judgment is affirmed in so far as it finds and adjudges that the commission abused its discretion in refusing to grant the respondents a continuance; (the circuit court had neither the power nor the authority to fix the valuation of the appellant’s property, Koplar v. State Tax Commission (Mo.), 321 S.W.2d, 1. c. 697; Drey v. State Tax Commission (Mo.), 345 S.W.2d, 1. c. 238); otherwise the judgment is reversed and the cause remanded with directions to the circuit court to enter a judgment remanding the cause to the State Tax Commission.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: STORCKMAN, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. James COX, alias John Cox, alias Sonny Man, and Robert Williams, alias Little Robert, Appellants.
    Nos. 48543, 48542.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1961.
    Rehearing Denied. Jan. 8, 1962.

      Raymond A. Bruntrager, St. Louis, for appellant Robert Williams.
    Morris A. Shenker, Murry L. Randall, Lawrence J. Lee, St. Louis, for appellant Cox.
    Thomas F. Eagleton, Atty. Gen., Dale Reesman, Sp. Asst. Atty. Gen., for respondent.
   STORCKMAN, Judge.

Under a charge of murder in the first degree, the defendants were convicted of second degree murder. The jury assessed the punishment of the defendant Robert Williams at fifteen years in the penitentiary. The court found that the defendant James Cox had previously been convicted of a felony in the State of Missouri and assessed his punishment at imprisonment for a term of twenty years. Both defendants were represented by counsel of their own choosing at all proceedings in the trial court.

On appeal the defendant Cox is represented by counsel and has filed a brief. Since the defendant Williams has not filed an appellate brief, the review of his conviction will be upon the assignments of error properly preserved in his motion for a new trial and the essential portions of the record. S.Ct. Rules 27.20 and 28.02, V.A.M.R.; State v. Slicker, Mo., 342 S.W.2d 946, 947 [1]. The questions preserved for review by both defendants relate primarily to the correctness of the trial court’s rulings in the giving of instructions, the admission of evidence and the state’s argument to the jury.

The essential facts take a rather narrow range and the parties are in general agreement as to what the evidence tended to prove. At approximately 10 p. m. on November 19, 1959, Donnell Stewart was shot and killed in front of 2714 Cole Street in St. Louis, Missouri. His death resulted from a single bullet which passed through his body from front to rear piercing his heart. The principal actors in this tragedy were better known by their nicknames: Donnell Stewart, the deceased, was known as “Duck”; the defendant Cox as “Sonny Man”; and the defendant Williams as “Little Robert”. Elliot Street runs north and south; the 900 block is only 232 feet long from curb to curb and does not run through, being bounded on the north by Cole Street and on the south by Franklin, both of which are east and west streets. A poolhall, located at 913 Elliot, is on the west side of the street. Seventy-three feet north of the door of the poolhall is a narrow one-vehicle alley which extends west of Elliot Street about 120 feet to a point where it makes a right-angle turn north into Cole Street. 2714 Cole Street, in front of which the killing occurred, is just east of the Cole Street entrance to the alley. On the south side of Cole Street from the alley to Elliot is a solid row-type residence building.

The only eyewitness to the shooting who testified was Mrs. Jo Ann Lewis, the eighteen-year-old girl friend of Donnell “Duck” Stewart. She had been living with-him at his father’s home for three or four-months. On November 19, 1959, she worked for her sister as a baby sitter and Stewart: spent the day with her. Mrs. Lewis testified substantially as follows: At about 6 p. m. on that day, a colored man named! James, whom she had not known previously,, picked her and Stewart up in an automobile and drove them to Cole and Lefifingwell where they got out, intending to go to a. movie in the 2700 block of Franklin about two blocks away. Mrs Lewis and Stewart walked east on Cole to Elliot, then south on. Elliot. As they approached the poolhall,. defendant “Little Robert” Williams was-standing in the doorway and the defendant “Sonny Man” Cox was crossing Elliot Street from east to west carrying a gun in. ,his hand. The defendant Cox approached Stewart saying he wanted to talk to him,, and Stewart told Cox that he also wanted to-talk to him. Stewart and Cox stood near the curb in front of the poolhall talking for about five minutes. Mrs. Lewis stood nearby but did not hear what was said. Part of the time she kept her hand in her coat pocket but neither she nor Stewart had a gun. Williams walked south toward Franklin. Stewart and Cox walked north on Elliot to Cole, then west on Cole and stopped in front of 2714 near a street light about an arm’s length from each other. Mrs. Lewis followed them at a short distance and ascended to about the third of the four doorsteps leading to the entrance of 2714 Cole. She never at any time heard what Stewart and Cox said to each other. The defendant Cox continued to hold the gun in his hand. The defendant Williams-approached on Cole Street from the east carrying a gun and fired a shot at her as-she stood on the steps near the doorway causing her to fall, although she was not hit by the bullet. Immediately after defendant Williams shot at her and while she was lying on the step, the defendant Cox stepped back and shot Stewart. Mrs. Lewis, further testified that she then ran into the alley followed by Williams who fired another shot and she fell against a post in the alley, but the bullet did not strike her. Williams overtook her, fired again and again missed her. He then struck her on the head with the gun. At this juncture defendant Cox entered the alley from Cole Street, came up to where defendant Williams was standing over her and said, “Let’s go, Little Robert, Duck is dead.” With that both Cox and Williams broke and ran out of the alley toward Elliot. Mrs. Lewis ran into Cole Street, looked at Stewart, then ran west to Leffingwell and called police officers.

At about 11 o’clock on the night of the shooting defendant Williams surrendered to the police and turned over to them an automatic pistol. In one of the yards adjoining the alley police officers found a nickle plated revolver and in the alley two spent shells and a bullet fired from Williams’ automatic. A statement taken from Williams and a transcript of his testimony given in an assault trial on May 25, 1960, were admitted in evidence against the defendant Williams only.

The facts related by Williams on each occasion were generally the same and substantially as follows: Williams went to the poolhall at about 5:45 on that night of November 19, 1959, taking his gun with him. He hid the gun under some lumber in a yard about 25 feet from the poolroom where it remained until he retrieved it before going to Cole Street as hereinafter stated. At about 6:30 Williams was standing in the doorway of the poolroom when, according to his statement, this occurred: “Duck Stewart and a girl whose name I don’t know came up to this poolroom and asked me had I saw Sonny Man. I looked up and saw Sonny Man coming across the street and I said to Duck and the girl, ‘Here he comes now.’ Sonny Man said to Duck, ‘Get your hands out of your pocket.’ Duck said something that I couldn’t hear. Both Duck and Sonny Man pulled pistols and the girl had her hands in her coat pockets. Then Sonny Man and Duck started arguing and I walked up to them. Sonny Man told me to go back and Duck said, ‘He is not going to do anything.’ The girl said, ‘If he do, I will shoot him and anybody that moves.’ I moved back. Then they walked up the street and around the corner of Cole and Elliot and I waited until they got around the corner and ran up to them, I yelled, ‘Hold it, Duck, it don’t make sense.’ Then the girl yelled, ‘Duck, he has got a pistol,’ and he fired. When he fired, I fired one and I hit him and he fell. I aimed the pistol at the girl on the steps and tried to fire it but it didn’t fire. She ran down the alley and I ran behind her and shot at her one or two times. She fell against a fence and a post and threw her hands up from her pockets and I hit her on the head with the pistol. Sonny Man then ran up through the alley and said, ‘Come on, let’s go.' We both ran down the alley to Jefferson and Cole and then we split up. I went home then.” Williams took his gun with him but later called the police and gave it to them when he was arrested. Williams’ testimony at the assault trial was more detailed and he testified additionally that the gun which Stewart had was a nickle plated one; that he did not see Cox fire a shot; and that he, Williams, fired at Stewart because he was scared.

The first assignment of defendant Cox is that the trial court erred in giving and reading to the jury Instructions Nos. 1, 2, and 3, which allowed the jury to convict him as an “aider and abetter” acting jointly or in concert with co-defendant Williams for the reason there was no evidence admitted against Cox to support a finding that he was an aider and abetter of co-defendant Williams in the killing of the deceased Stewart, This is followed by the further assignment that the court erred in refusing to give an instruction on circumstantial evidence for the reason that all the evidence, if any, tending to show aiding and abetting was circumstantial evidence. With slight variations, the defendant Williams raises-similar questions.

Was there direct evidence apart from the statements of the defendant Williams from which the jury could reasonably find that Cox aided and abetted the commission of the offense? We are convinced there was. The distinction between direct and circumstantial evidence is well stated in State v. Famber, 358 Mo. 288, 214 S.W.2d 40, 43, as follows: “Direct evidence is said to be ‘evidence which if believed proves the existence of the fact in issue without inference or presumption; while circumstantial evidence is evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist.’ ” See also State v. Varnon, Mo., 174 S.W.2d 146, 147 [2], and State v. Hubbard, 351 Mo. 143, 171 S.W.2d 701, 704 [1-3].

There was direct evidence of acts and declarations by the defendant Cox from which the jury could find that he aided and abetted the defendant Williams. Jo Ann Lewis testified as to the conduct of the parties on Elliot Street in the vicinity of the poolroom, described how they proceeded to the mouth of the alley on Cole Street, and gave her version of the shooting. If this were all, the question might be more difficult. But the witness then testified that after she ran into the alley pursued by Williams, the defendant Cox also came into the alley, told Williams “Duck is dead, come on let’s go”, and they both ran off together. Even though the jury believed it was a bullet from the gun of Williams that killed Stewart, the jury could reasonably find, solely from the acts and declarations of Cox, that Cox was an aider and abetter. This proof was direct and not circumstantial. If the defendants were not partners in the crime, there would have been no occasion for Cox to follow Williams into the alley and impart the information that Duck was dead and then for both of them to flee from the scene of the crime together. From direct evidence of the acts and declarations of each defendant, independently of the other, the jury could have reasonably found that either of them fired the fatal shot and that the other aided and abetted. The contention that Instructions Nos. 1, 2 and 3 were erroneous because there was no evidence to support a finding of aiding and abetting is denied.

In support of the contention that the court erred in refusing to give an instruction on circumstantial evidence, the appellant Cox cites cases in which there was no direct evidence of the defendant’s guilt. As we have previously held, there was direct evidence from which the jury could find against both defendants on the theory that either one of them fired the fatal shot and the other aided and abetted. Error cannot be predicated upon a failure to give an instruction on circumstantial evidence unless evidence of that character is solely relied upon for conviction. State v. Burns, Mo., 328 S.W.2d 711, 713 [4]; State v. Tolias, Mo., 326 S.W.2d 329, 337 [20]; State v. Morris, Mo., 307 S.W.2d 667, 675 [11], The assignment is denied.

At the time the statement of Williams and his testimony at another trial were admitted in evidence, the court orally instructed the jury that these admissions were not binding on the defendant Cox and were not to be taken as evidence against him. No further instruction in this regard was requested and there was no obj ection to the instructions in this respect by either defendant. In these circumstances the defendants are not in a position to urge that a written instruction should also have been given.

The defendants’ assertion that the court erred in failing to instruct the jury that one defendant could be convicted and the other acquitted is contrary to the facts shown by the transcript of the record. The instructions permitted the jury to find the defendants or either of them guilty or not guilty of the offense submitted. For this reason, the contentions must be disregarded.

Both defendants have assigned error by reason of the failure of the trial court to declare a mistrial because of allegedly improper, inflammatory and prejudicial argument to the jury on the part of the state. The complaints of the defendants in this regard overlap and will be treated together. At the beginning of his closing argument, the prosecutor stated "the evidence shows that there were at least three guns out there on that day. Here are two guns here, where is the other gun ?” The defendants objected and moved for a mistrial on the ground that the statement was a comment by the state on the failure of the defendants to testify. The court did not err in overruling the objection and denying the motion for mistrial. Section 546.270, RSMo 1959, V.A.M.S., provides that a defendant’s failure to testify shall not “be referred to by any attorney in the case.” In order to constitute a violation of the statutory prohibition, it must be demonstrated that the statement of counsel directly or indirectly called the jury’s atten-. tion to the fact the accused did not testify. State v. Hayzlett, Mo., 265 S.W.2d 321, 323 [3, 4]. In'that case, counsel’s statement that the defense had offered no testimony at all was held not to violate the statute. The purpose of the statute is to prohibit counsel from making capital out of an accused’s exercise of his constitutional right to remain silent. It does not appear that such was the purpose or the result of the argument made on this occasion. The assignment is denied.

There are approximately eight specifications of error concerning references in the state’s argument to such subject matters as civic interest and the personal safety of inhabitants of the city. Typical of these and sufficient to demonstrate their nature is the following: “If you want that kind of community, if you want the kind of community where people are going to stand on corners and shoot back and forth at one another, return a verdict that is light, return a verdict that is easy, tap him on the wrist and say, ‘You have been a naughty boy, you killed somebody this time. Don’t do it any more.’ * * * he took this nasty looking weapon here and carried it up the street and fired that shot in the middle of that public street out there with an utter disregard for anybody walking by, standing on the sidewalk, leaning out the window — ”,

A prosecutor has a right to call attention in argument to the prevalence of crime in the community, to urge the jury to do its duty to uphold the law, and to draw inferences therefrom as to the effect of a failure to uphold the laws. State v. Marshall, 317 Mo. 413, 297 S.W. 63, 69 [20]. The prosecutor is generally permitted considerable latitude in arguing the necessity of law enforcement and the responsibility resting upon trial juries. State v. King, Mo., 334 S.W.2d 34, 40 [10]. Calling attention to the fact that the shooting occurred on a public street in a large city, that the defendants placed in jeopardy all who used the streets and that in so doing they were a menace to the community was not improper as an appeal to the fears of the jury. State v. Benjamin, Mo., 309 S.W.2d 602, 606 [5]. Whether or not remarks of counsel are improper and prejudicial under the facts of a particular case are matters largely within the trial court’s discretion and will not be interfered with unless abused to the defendant’s prejudice. State v. Green, Mo., 292 S.W.2d 283, 288 [10].

In three instances objections were made on the ground that the prosecutor was referring to matters within his own belief and not in evidence. Two objections were based on the contention that there was no evidence of a common purpose. Our examination of the record discloses that the evidence justified the argument and it would be a distortion of the language used to hold that the statements were an expression of the prosecutor’s personal opinion of the guilt of the defendants. Objections were also made to the prosecutor’s references to the defendants’ pleas of not guilty and their reliance on the defenses of self defense which were matters argued by their counsel. These statements were closely related to the prosecutor’s assertion that all defendants were entitled to a fair trial and cannot be said to be improper statements of the law, nor otherwise improper. All of these assignments of error based on the prosecutor’s jury argument are denied.

During the closing argument of the state, defendants’ counsel made frequent objections, some of which were anticipatory. At one point one of defendants’ counsel interrupted the prosecutor in the middle of a sentence with the statement, “This is highly prejudicial.” During the colloquy that followed, the court made these statements: “He is just making a statement, the objection is not proper; I will overrule the objection. * * * You don’t even let the man make a statement. * * * It appears to the court now that the attorneys are making objections for the mere purpose of interrupting the attorney for the State. Go ahead.” Out of the hearing of the jury, defendants’ counsel objected “to the remarks of the Court in passing upon the defendant’s objection for the reason that said remarks tend to disparage counsel, they tend to reflect the Court’s feeling towards the argument that the State is making, it lends in my mind approval by the Court of the prosecutor’s argument * * *." Defendants’ counsel had made a great many objections some of which were sustained. Some of the remarks of defendants’ counsel were not addressed to the court in the form of objections, but were retaliatory of something said by state’s counsel in argument. A trial judge is charged with maintaining orderly procedure in his courtroom. If the court became impatient with counsel, it was mildly so. Taken in context we find nothing in the court’s remarks tending to approve the state’s argument or indicating a belief in the defendants’ guilt. The court did not err in overruling the objection and motion for a mistrial. State v. Barnholtz, Mo., 287 S.W.2d 808, 812 [4,5],

The foregoing has disposed of all questions properly presented by the defendant Cox, some of which were raised in common with the defendant Williams. The rest of the opinion will be concerned with additional specifications of error properly preserved in Williams’ motion for new trial. Prior to the trial the defendants filed joint motions for a bill of particulars, for a psychiatric examination of the witness Jo Ann Lewis, and for requiring the state to answer written interrogatories submitted by the defendants. These motions were heard and submitted without the taking of evidence and were overruled. The ruling is assigned as error.

Generally, a bill of particulars may be required where it is necessary to enable the defendant to prepare adequately for trial or where it is necessary to constitute a bar to a subsequent prosecution. S.Ct. Rule 24.03. The motion for a bill of particulars is addressed to the sound discretion of the trial court and its ruling thereon should not be disturbed in the absence of an abuse of such discretion. Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 71 L.Ed. 545. No abuse of discretion appears on the record.

The motion for a psychiatric examination alleged that the defendants were informed that Jo Ann Lewis had been confined in the psychiatric ward of City Hospital and was known to be addicted to the use of narcotic drugs and that the defendants believed that she was of unsound mind. The allegations of the motion did not prove themselves and no evidence was offered in support of them. It is the court’s province to pass on the competency of witnesses. State v. Stidham, Mo., 305 S.W.2d 7, 13[7]. No objection was made at the trial to the witness’ competency. The witness was prima facie competent and the court did not err in overruling the motion for a psychiatric examination. State v. Oswald, Mo., 306 S.W.2d 559, 563 [9]; State v. Brown, 360 Mo. 104, 227 S.W.2d 646, 649[2]; State v. Wilson, 361 Mo. 78, 233 S.W.2d 686, 688 [9].

A defendant is entitled to take the depositions of witnesses in a criminal case, S.Ct. Rules 25.10 and 25.11, but there is no provision to compel the state to answer written interrogatories. The interrogatories submitted were similar in form to those permitted in civil cases. See S.Ct. Rule 56.01 and § 510.020, RSMo 1959, V.A.' M.S. There were 25 in number and called for details of evidence and conclusions. But apart from their character we know of no authority permitting a defendant in a criminal case to require the state to answer interrogatories such as were submitted here and none has been cited. The court did not err in denying the request for answers to the interrogatories.

The court denied the request of the defendants to cross-examine Jo Ann Lewis as to whether she was a prostitute, her reputation as such, and if she earned her living by immoral means for the purpose of impeaching her as a witness. The court was correct in so ruling. The credibility of a witness in a criminal case cannot be impeached by showing that his reputation for morality is bad, but such an attack must be addressed directly to his reputation for truth and veracity. State v. Kain, Mo., 330 S.W.2d 842, 845[3].

Three related specifications of error are that for the purpose of impeaching her credibility as a witness the defendants had the right to cross-examine Jo Ann Lewis as to her being a drug addict, whether she was under the influence of drugs the night of the killing, and also at the time she was testifying. The testimony of the witness extends over 94 pages of the transcript of which 80 pages were given to cross-examination. There is nothing in the record that tends to demonstrate that there was any substance to the contention that the witness was then or had been under the influence of drugs. The extent of cross-examination on collateral matters for the purpose of impeachment is largely within the trial court’s discretion and no abuse of such discretion has been made apparent in this instance. State v. Brotherton, Mo., 266 S.W.2d 712, 714[2, 3]; State v. Allen, Mo., 343 S.W.2d 63, 66-67[6, 7]; State v. Stidham, Mo., 305 S.W.2d 7, 12-13[6, 7].

Shortly after the killing, police officers searched the vicinity and in the rear yard of 2714 Elliot, which adjoined the alley, they found a nickel plated .38 caliber revolver loaded with five rounds of live ammunition and one expended shell. The revolver was identified and introduced in evidence over defendants’ objection as state’s Exhibit 9, and the ammunition and expended shell as Exhibit 10. Defendant Williams’ specification of error is that the exhibits were found at a place remote from the scene of the crime and were not connected with him in any way. By their cross-examinations, the defendants sought to establish that the “shiny revolver” must have belonged to Duck Stewart and had been thrown in the yard by Jo Ann Lewis since she testified Sonny Man’s gun was a dark one. The place where the gun was found was not remote from the scene of the crime. It could not have been much in excess of a hundred feet from where Duck was killed and immediately adjoined the alley into which the defendants and Mrs. Lewis went after the street shooting. Since the evidence was sufficient to show a common purpose on the part of the defendants, the exhibits were admissible; their weight and value as evidence were for the jury.

The defendant Williams assigns error in the admission of his written statement given to the police, Exhibit 19, because it was contrary to the state’s theory that Sonny Man Cox fired the bullet that killed Duck Stewart and, further, that it contained statements tending to exculpate Williams. The state of the evidence was such that the jury could find that either of the defendants fired the fatal shot and that the other aided and abetted so the exhibit was not in conflict with the state’s theory. The exhibit is not rendered inadmissible because it contains exculpatory statements, because the jury may believe or disbelieve and reject these parts just as it may evaluate other parts of the statement in connection with all the evidence in the case. State v. Bridges, Mo., 349 S.W.2d 214, 216 [2]; State v. McCloud, Mo., 328 S.W.2d 586, 588 [2]; State v. Tourville, Mo., 295 S.W.2d 1, 5 [4].

At the conclusion of the testimony of a police officer, defendants’ counsel requested that the witness be directed to remain available, and the court so ruled, but during the discussion the prosecutor protested: “This man [the witness] is on vacation, I have had him here for three days.” Defendants’ counsel thereupon asked that the prosecutor’s remark be stricken and the jury be instructed to' disregard it and that a mistrial be declared, all of which the court denied. Whether the remark of counsel required the grant of the relief requested rests largely in the discretion of the trial court and we are not impressed that such discretion was abused. State v. Lynn, Mo., 23 S.W.2d 139, 141 [1] ; State v. Nichols, 327 Mo. 1237, 39 S.W.2d 777, 779 [4].

Specifications 11, 12, and 13 relate to the admission of testimony of police officers who investigated the crime and will be treated together. The vicinity of the crime was described as a rundown neighborhood; some of the visual examination was made on the following day, and pictures of the scene taken then were admitted in evidence. The verbal descriptions and the photographs were relevant in that they tended to enable the jury to understand better the physical surroundings; the court did not err in admitting them. State v. McGee, 336 Mo. 1082, 83 S.W.2d 98, 107 [26-28]; State v. Tevis, Mo.App., 340 S.W.2d 415, 420[12].

A transcript of the testimony of the defendant Williams as a witness at the trial of another case growing out of the same occurrence was identified as Exhibit 19 by the court reporter who took and transcribed the testimony. The transcript was properly identified and was admitted in evidence. The nature of the other case and the fact that Williams was a party defendant were not disclosed to the jury. In his testimony, as shown by the transcript, Williams described his activities of the evening in greater detail than in His written statement given to the police and added other material evidence. In order to conform to certain objections of the defendant, only a portion of the transcript was read to the jury. His testimony contained matters that constituted admissions against interest in the case on trial, and the court did not err in admitting the exhibit in evidence. State v. Taylor, Mo., 324 S.W.2d 643, 646-647[6], 76 A.L.R.2d 671.

The court did not err in failing to instruct the jury that they must find as a matter of fact that a conspiracy existed between the defendants “before they can consider any evidence in connection with the alleged conspiracy against the defendant, Robert Williams.” This prosecution is not for the offense of a conspiracy. See § 556.-120 and § 556.130, RSMo 1959, V.A.M.S. As shown by the instructions, the theory of submission was the joint action of the defendants with a common intent in the commission of the murder. The instructions defined aiding and abetting. The defendant does not point out specifically “any evidence in connection with the alleged conspiracy” that he contends violated his rights and we have been unable to discover any.

The defendant Williams further complains of Instructions 1 and 2 submitting first degree and second degree murder. Contrary to his contentions, we find that the instructions do not improperly set forth the law relative to “concert of action” and do not permit a finding of guilt on presence alone. The instructions do not improperly assume that the defendant acted in concert with another in the commission of the crime. It was not improper, after instructing on concert of action, to permit the jury to find one defendant only guilty if he “acting alone” shot Stewart since it was for the jury to determine whether or not there was a concert of action.

The defendant attacks the giving of Instruction 3 covering manslaughter on the ground that the instruction improperly defined “justifiable homicide” and improperly limited the self-defense theory to the defense “of one’s person”. The definition of justifiable homicide refers to “the lawful defense of one’s person as more fully explained to you in instructions numbered 6 and 7.” These instructions, and particularly No. 7 applying to the defendant, do not have the limitation of which the defendant complains. Amplified as it is by Instructions 6 and 7, Instruction 3 is not misleading. Other complaints against Instruction 3 have been disposed of adversely to the defendant in connection with our previous rulings. The assignment is denied.

Next the defendant asserts that Instruction No. 4 is erroneous because it improperly shifted the burden of proof and deprived the defendant of the presumption of innocence by requiring the jury to convict the defendant unless they had a substantial doubt as to his guilt. The complaint the defendant makes against this form of instruction on burden of proof has been held not to constitute reversible error in numerous cases. See State v. Cheatham, Mo., 340 S.W.2d 16, 20[10], and State v. Livers, Mo., 340 S.W.2d 21, 24 [2], The claim of error is denied.

Finally the defendant complains of Instruction No. 6. This instruction on self-defense pertains solely to the defendant Cox. Instructions 6 and 7 applying to Williams did not limit or improperly define the defense. The assignment is denied.

We have considered all of the questions properly preserved and have decided them adversely to the defendants. We have also examined the parts of the record and entries designated in S.Ct. Rules 28.02 and 28.08 and find them to be proper in form and free from error. Accordingly the judgment of conviction and sentence as to each defendant is affirmed.

All concur.


author: HOLMAN, Commissioner.

text:
    Agnes GORZEL, Respondent, v. Louis W. ORLAMANDER and Marie G. Orlamander, Appellants.
    No. 48620.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1961.
    Rehearing Denied Jan. 8, 1962.

      Susman, Wilier, Rimmel & Elbert, Harold I. Elbert, St. Louis, for appellants.
    Harry Gershenson, St. Louis, for respondent.
   HOLMAN, Commissioner.

Plaintiff and defendants owned and occupied adjoining residential lots in Normandy, Missouri. In this action plaintiff obtained a judgment by default to the effect that she had acquired an easement by prescription over the north one foot of defendants’ lot for use as a part of her driveway. It was also adjudged that defendants should remove a fence they had constructed which interfered with plaintiff’s use of said strip of ground. The court overruled defendants’ motion to set aside the default judgment and they have appealed. Since the judgment granted an easement over the land of defendants, title to real estate is directly involved and appellate jurisdiction is in this court. Dalton v. Johnson, Mo.Sup., 320 S.W.2d 569.

This suit was filed on May 9, 1960. No pleading having been filed by defendants, an order of “default and inquiry” was entered by the court on June 17, 1960. Plaintiff appeared on July 8, 1960, and offered evidence in support of the allegations in her petition and the judgment heretofore mentioned was entered on July 13, 1960. However, on the date last mentioned defendants’ attorney appeared and sought permission to file an answer, but such was refused and it was “lodged with the court” and in that manner appears in the transcript. It was in the nature of a general denial.

On July 15, 1960, defendants filed a “Motion to Set Aside Default Judgment,” which reads as follows:

“Comes now the defendants, L. W. Orla-mander and Mrs. L. W. Orlamander and move the court to set aside the default judgment rendered in the above-entitled cause on July 8, 1960 for the following reasons:
“1. That said defendants have a good and meritorious defense to the above-entitled cause of action and that grave injustice and serious damage will result to the defendants unless their defense is heard by this court.
“2. That shortly after service of summons upon these defendants they consulted the undersigned attorney * * * who undertook to represent them in the defense of this matter.
“3. That on May 1, 1960 the undersigned attorney’s secretary failed to report for work and though said attorney exerted diligent effort by means of newspaper advertisements and seeking aid from several employment agencies was unable to find and hire a competent secretary until June 9, 1960.
“4. Defendants further state that during this period the undersigned attorney was forced to seek temporary help and that said temporary help furnished was incompetent and unable to meet with the exacting duties of a busy law office which made it necessary for the undersigned attorney to send files and work out of the office to various typists to be completed.
“5. That the answer to the petition filed in the above-entitled cause and the file, though timely dictated was among the work which was sent out of the office for completion and was not returned sufficiently soon to be timely filed.
“6. That due to the pressure and harassment of a busy law practice the undersigned attorney was unable to follow the progress of each of the files sent out of the office, was unaware that the answer to the plaintiff’s petition in the above-entitled cause had not been filed and in fact verily believed said answer had been filed.
“7. That the failure to file a timely answer to the petition in the above-entitled cause was not due to the culpable negligence of the defendants or the undersigned attorney.
“Wherefore, defendants move the court to enter an order setting aside the default judgment rendered in the above-entitled cause, prays leave of court to accept defendants’ answer to plaintiff’s petition, and to set said matter on its trial docket to be tried on its merits and for such other order as the court may deem meet and proper.”
Defendants’ motion was argued in September and on October 11, 1960, the court entered the following order: “Defendants’ motion to set aside default judgment heretofore argued and submitted denied because court has no authority to set judgment aside, and had no such authority when motion [was] called for argument by plaintiff’s counsel.”

Upon this appeal defendants are represented by a different attorney than the one filing the motion in the trial court. Defendants here contend that the motion to set aside was the equivalent of a motion for new trial and hence the trial court erred in ruling that it did not have jurisdiction to set the judgment aside. They say that we should either (1) set the judgment aside, or (2) reverse and remand with directions to the trial court to consider the motion on its merits and exercise its discretion in ruling thereon.

We agree with the result reached in the trial court but are of the opinion that the court was in error as to the reason assigned for overruling the motion. It is obvious that the trial court did not consider the motion as being of the character which would extend the time during which the trial court retained control of the judgment beyond the 30-day period as provided in S.C.Rule 75.01, V.A.M.R. Had the motion not been filed within 15 days after entry of judgment that would undoubtedly have been true.

“In State ex rel. Conant v. Trimble, 311 Mo. 128, 277 S.W. 916, it was held that a motion to set aside a default decree not filed within the time allowed by the statute for motions for new trial has no status as a motion, but is a mere suggestion to the court, and such motion will not carry the case beyond the period during which the court retains jurisdiction to act on its own motion. Under the practice prior to the adoption of the new Code, the period during which the court retained jurisdiction was the judgment term. Under the new practice that period is limited by Section 119 to thirty days after entry of judgment.” State ex rel. Iannicola v. Flynn, 239 Mo.App. 721, 196 S.W.2d 438, 441.

However, where a motion to set aside is filed within the period provided for filing motions for new trial, the appellate courts of this state (usually without any discussion of this question) have uniformly considered such motions as being timely and as effective as though denominated a motion for new trial. We do not think it is important whether a motion of this type is denominated a motion to set aside or a motion for new trial. The relief sought is an order setting aside the default judgment and another trial upon the merits. In that situation we think it is reasonable and proper to regard the motion filed by defendants as a motion for new trial, or the equivalent thereof, and we rule that it had the effect of vesting the trial court with jurisdiction to rule the motion upon its merits within the period of 90 days after it was filed. S.C.Rule 78.04, V.A.M.R.

In considering a motion of this kind we recently stated that “The action of a trial court in sustaining or overruling a motion to set aside a default judgment is generally within the trial court’s sound judicial discretion. * * * The general rule is that, where the application or motion to set aside discloses a meritorious defense, and reasonable diligence or excuse for default is shown, and no substantial injury to plaintiff will result from delay, a trial court should exercise its discretion in favor of a trial on the merits.” Whitledge v. Anderson Air Activities, Mo.Sup., 276 S.W.2d 114, 116.

We are of the opinion that the action of the court in overruling the motion must be sustained for two reasons. The first is that no proof was offered to support any of the allegations in the motion. The motion did not prove itself. It was not verified, no affidavits in support thereof were filed, and no testimony was offered at the hearing of the motion. As a prerequisite to obtaining the relief prayed for it was incumbent upon defendants to prove in some manner that (1) they had good reason or excuse for the default, and (2) that they had a meritorious defense to the action. Parks v. Coyne, 156 Mo.App. 379, 137 S.W. 335. As indicated, defendants made no effort to comply with either of the foregoing requirements.

We are also of the opinion that the motion itself is insufficient in that it failed to allege any facts showing that defendants had a meritorious defense to the action. In Wenzel v. Wenzel, Mo.App., 283 S.W.2d 882, 889, it is said that the motion to set aside the deceree “alleged that defendant 'had a good and mei'itorious defense to the action,’ but this was a mere conclusion. The facts constituting the proposed defense must be set forth in detail so that the court may judge whether it is meritorious and sufficient.” To like effect, see also Edwards v. Rovin, Mo.App., 322 S.W.2d 139, Stieferman v. Stieferman, Mo.App., 219 S.W.2d 864, Mayo v. Lasater, Mo.App., 312 S.W.2d 601, and 49 C.J.S. Judgments § 336(b) pp. 645, 646.

For the reasons we have heretofore stated the motion to set aside the default judgment was, as a matter of law, properly overruled.

Affirmed.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


author: HYDE, Chief Justice.

text:
    STATE of Missouri, Plaintiff-Respondent, v. KATZ DRUG COMPANY, a Corporation, Defendant-Appellant.
    No. 48587.
    Supreme Court of Missouri, En Banc.
    Dec. 11, 1961.
    Rehearing Denied Jan. 8, 1962.

      Corinne Richardson, St. Louis, John C. Noonan, Kansas City, Orville Richardson, St. Louis, for appellant; Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, Hullverson, Richardson & Hullverson, St. Louis, of counsel.
    Thomas F. Eagleton, Atty. Gen., George W. Draper, II, Asst. Atty. Gen., for respondent.
    Arthur R. Tucker, Charles L. Edson, R. Timothy Hanlon, Samuel H. Liberman, St. Louis, amici curiae; Lewis, Rice, Tucker, Allen & Chubb, St. Louis, of counsel.
   HYDE, Chief Justice.

Defendant was convicted of exposing to sale goods, wares and merchandise on Sunday in violation of Secs. 563.720 and 563.-730. (Statutory references are to RSMo and V.A.M.S. unless otherwise indicated.) We have jurisdiction because defendant contends these statutes are unconstitutional on grounds involving the construction of the Constitution of the United States and the Constitution of Missouri.

These statutes are as follows:

“§ 563.720. Every person who shall expose to sale any goods, wares or merchandise, or shall keep open any ale or porter house, grocery or tipling shop, or shall sell or retail any fermented or distilled liquor on the first day of the week, commonly called Sunday, shall, on conviction, be adjudged guilty of a misdemeanor and fined not exceeding fifty dollars.
“§ 563.730. Section 563.720 shall not be construed to prevent the sale of any drugs or medicines, provisions or other articles of immediate necessity.”

Defendant claims “neither the word 'provisions’ nor the phrase ‘articles of immediate necessity’ fixes any ascertainable standard by which guilt may be determined and furnishes no adequate guidé to future conduct or the adjudication of past action”; and that “they are vague and uncertain and, therefore, void in violation of common law rules and the due process clause of the 14th Amendment to the Constitution of the United States and Article 1 of section 10 of the Missouri Constitution, V.A.M.S., both of which require fair warning to be given to individuals of the criminal consequences of their conduct and an opportunity to have crimes charged against them tried under clear and definite rules of law disclosed to and applied by courts and juries.”

Defendant also claims these statutes “violate the Missouri Constitution, Article 2, section 1, and Article 3, section 1, providing for a separation of the powers of the legislature and the judiciary and empowering only the legislature to enact or make law and establish standards of conduct,” because they “fail to lay down any ascertainable rule of law by which courts and juries may determine whether or not an article falls within the classification of ‘provisions’ or ‘articles of immediate necessity’ ”; so that “courts and juries are permitted by the legislature to make their own laws in this field.”

Defendant further claims these statutes “permit one to be charged with crime under them, without any definition of the word ‘provisions’ or of the phrase ‘articles of immediate necessity’, in violation of Article 1, section 18(a) of the Missouri Constitution providing that in criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation.”

The State’s evidence showed that four members of the Meat Cutters Union met on Sunday morning, February 22, 1959, and decided to go to defendant’s store at Eighth and Washington in the City of St. Louis to make purchases of articles they did not need. Personal motivations were stated to be because of religion, desire to go to church on Sunday and worry about being made to work on Sunday. Articles purchased were an electric frying pan, a card table, two decks of playing cards, and 20 ballpoint pens and refills. These purchases were made for the purpose of involving defendant in a violation of law. Defendant offered no evidence. It is to be noted that no contention is made on this appeal of conflict of these statutes with constitutional provisions for religious liberty, the issue recently decided by the United States Supreme Court in McGowan v. State of Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393; Gallagher v. Crown Kosher Super Market of Massachusetts, 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536; Two Guys From Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551; and Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563.

Long before these decisions, we said: “The Missouri Sunday laws have regard to that day as a day of rest, and not to the religious character of the day. They are civil, not religious, regulations, and are based upon a sound public policy which recognizes that rest one day in seven is for the general good of mankind. Hennington v. [State of] Georgia, 163 U.S. 299-304, 16 Sup.Ct. 1086, 41 L.Ed. 166. Those laws are sustained as civil, municipal, or police regulations, without reference to the fact that the day of rest is also the Christian’s day of rest and worship.” (State v. Chicago, B. & Q. R. Co., 239 Mo. 196, 143 S.W. 785, 786; see also ABC Liquidators, Inc. v. Kansas City, Mo.Sup., 322 S.W.2d 876, 880.) This principle is well illustrated by the present English Shops Act of 1950 (14 George VI 462) in which the provisions concerning Sunday trading (Part IV, p. 500) are included with comprehensive provisions concerning closing hours and conditions of employment during week days. It is also worthy of note that this Act contains a detailed schedule of “Transactions for the purposes of which a shop may be open in England and Wales for the serving of customers on Sunday.” Perhaps our Legislature would not consider such detailed schedules advisable but it would seem to be time to modernize our Sunday statutes since they contain some terms applicable to conditions of 1825, when they appeared as part of our first published statutes (RS 1825, p. 311), rather to the present time. Certainly a revision now could give better treatment and better standards for modern conditions but that is a matter for the Legislature.

As to the claim of vagueness, we are not troubled by the term “provisions.” Black’s Law Dictionary defines it as “articles of food for human consumption.” In 73 C.J.S. 268 its common usage is said to be “food and provender for men and beasts” including “meats and groceries,” and that “a definition of the term as meaning food for mankind only is too narrow.” (See also definitions in the second and third editions of Webster’s New International Dictionary.) In the context in which it is used “drugs or medicines” and “other articles of immediate necessity,” we think the broader definition is intended and so rule.

We have previously held in State v. Campbell, 206 Mo. 579, 105 S.W. 637, 639, that if, under these statutes, one had the right to sell an article “it logically follows that he had the right to expose it for sale.” Therefore, these statutes do not prevent stores selling “drugs or medicines, provisions or other articles of immediate necessity” from being kept open on Sunday for the purpose of selling them. The troublesome question is: What is meant by “other articles of immediate necessity” ? This term has had a long history arid is closely related to the term found in Sec. 563.690 prohibiting Sunday work and labor except “the household offices of daily necessity, or other works of necessity or charity.” This term “works of necessity or charity” originated in the basic English Sunday Statute, 29 Charles II, c. 7, which “found its way in American colonial laws and has descended into all their successors currently in force.” (See separate opinion of Mr. Justice Frankfurter in the McGowan case, 81 S.Ct. 1. c. 1189; see also Appendix II therein showing Sunday laws of all states in tabular form, 81 S.Ct. 1. c. 1202-1217.) More than half the states have this “works of necessity” provision and there are many decisions construing it. (See 50 Am.Jur. 814, Sundays and Holidays, Secs. 16-18; 83 C.J.S. Sunday § 11, p. 812, §§ 13-18, p. 816 et seq.; Annotations 47 A.L.R. 1106, 60 A. L.R. 763, 24 A.L.R.2d 825; Sunday Laws, Ringgold, Chap. X, II; Harris on Sunday Laws, Chap. III, secs. 97-119.) The “other articles of immediate necessity” exception for sales seems to have been adopted only in Kansas and Missouri, with somewhat similar but differently worded exceptions for sales in New Hampshire and Oklahoma (N. H. Sec. 578(4); Okla. T21, Sec. 908; see table commencing 81 S.Ct. 1202.) The issue of vagueness of such terms as “necessity” has been considered in several cases, the most recent being the McGowan case (81 S. Ct. 1. c. 1106) where an exemption to Sunday sales was “merchandise essential to, or customarily sold at, or incidental to, the operation of” bathing beaches, amusement parks and other designated establishments in the area involved. The Supreme Court said “that business people of ordinary intelligence” would know ór be able to find by reasonable investigation what exemptions are encompassed by the statute. The court therefore held: “Under these circumstances, there is no necessity to guess’ at the statute’s meaning in order to determine what conduct it makes criminal.”

On this issue the Supreme Court of Pennsylvania said, as to the meaning of the prohibition against performing “any worldly employment or business” on Sunday, in Commonwealth ex rel. Woodruff v. American Baseball Club of Philadelphia, 290 Pa. 136, 138 A. 497, 500, 53 A.L.R. 1027: “On appellant’s second proposition, that the act is unconstitutional for uncertainty, we think very little is required to be said. See 37 Cyc. 541; 12 C.J. 1275. It has been on the statute books for 133 years, and has been the subject of much judicial consideration. When its language is given its ordinary, not a strained, construction, its meaning we think is plain. It may be that those who do not wish to understand or abide by its provisions find them uncertain; surely those who wish to follow the custom of our people in Sunday observance do not so find the interdictions of the statute. We can see no basis whatever for the argument that the act violates the Fourteenth Amendment to the federal Constitution.” Likewise, the Supreme Court of Iowa, in State v. Linsig, 178 Iowa 484, 159 N.W. 995, 997, said: “The exception provided by the statute is applicable to any and all kinds of labor which are shown to be either necessary or charitable. There is no chance for mistake or misconstruction on the part of any citizen honestly desiring to obey the law. If counsel’s contention in this respect be correct, then there can be no effective regulation of labor by a general statute, but there must be distinct and separate enactments for ‘the butcher, the baker, and the candlestick maker’ and for every one of the endless list of human industries. We cannot commit ourselves to any such holding.” (See also dissenting opinion of Chief Justice Vanderbilt in State v. Fair Lawn Service Center, 20 N.J. 468, 120 A.2d 233, 240; as to matters considered in determining “necessity” see Sunday Laws, Ringgold, 232-235.)

Missouri has taken a liberal view in determining “necessity.”. 'In Pulitzer Publishing Co. v. McNichols, Mo.Sup., 181 S.W. 1, L.R.A.1916C, 1148, in holding publication of a Sunday newspaper to be a work of necessity, this court said: “In the progress of time and the uplift of man, things which used to be useless or luxurious have become prime necessities. For instance, the railroads, the street cars, the telegraph, and the telephone. All of these have been declared public necessities, and this court, in the case of State v. [Chicago, B. & O. R. Co.] Railroad, 239 Mo. 196, 143 S.W. 785, held-that railroads could be compelled, under a legislative enactment, to operate trains on Sunday, and in a number of .cases that telephones are public necessities. The press is a greater public necessity than all of them.” In view of this ruling and since travel on Sunday has never been prohibited (see exemption of ferrymen in Sec. 563.-700), supplies immediately needed to keep modern traffic moving in motor vehicles or planes surely would now be “articles of immediate necessity,” as would supplies immediately needed to carry on any “works of necessity.” These views are in accord with the principle that statutes defining crimes are required to be construed liberally in favor of the defendant and strictly against the state. (State v. Chadeayne, Mo.Sup., 323 S.W.2d 680, 685.)

Defendant in support of its .“void for vagueness” claim cites the following Law Review notes and articles, which review the authorities: Freund, The Use of Indefinite Terms in Statutes, 30 Yale L.J. 437 (1921); Aigler, Legislation in Vague or General Terms, 21 Mich.L.Rev. 831 (1923); Note, Indefinite Criteria of Definiteness in Statutes, 45 Harv.L.Rev. 160 (1931) ; Note, Due Process Requirements of Definiteness in Statutes, 62 Harv.L.Rev. 77 (1948); Note, Void for Vagueness: An Escape .From Statutory Interpretation, 23 Ind.L.J. 272 (1948); Note, 22 So.Cal.L. Rev. 298 (1949); Note, The Void for Vagueness Rule in California, 41 Cal.L.Rev. 523 (1953); Note, Requirement of Definiteness in Statutory Standards, 53 Mich.L. Rev. 264 (1954); Collings, Unconstitutional Uncertainty — An Appraisal, 40 Cornell L.Q. 195 (1955); Scott, Constitutional Limitations on Substantive Criminal Law, 29 Rocky Mt.L.Rev. 275, 287ff (1957); Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. of Pa.L.Rev. 67 (1960). These articles consider statutes on other subjects than Sunday laws. However, on the issue of “vagueness,” Justice Holmes said in rejecting such a contention concerning a criminal charge under the Sherman Act, in Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 781, 57 L.Ed. 1232, “the law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death. ‘An act causing death may be murder, manslaughter, or misadventure, according to the degree of danger attending it’ by common experience in the circumstances known to the actor. ‘The very meaning of the fiction of implied malice in such cases at common law was, that a man might have to answer with his life for consequences which he neither intended nor foresaw.’ ” More recently in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498, the court, in overruling the contention that a California obscenity statute violated constitutional requirements of due process by failing to provide reasonably ascertainable standards of guilt, said: “Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. ‘ * * [T]he Constitution does not require impossible standards’; all that is required is that the language ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.’ * * * ‘That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense * * *.’ ” (See United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877, and other cases cited in the Roth case, 77 S.Ct. 1. c. 1313; see also State v. King, Mo.Sup., 303 S.W.2d 930, 934, in which as to claim of uncertainty of Sec. 563.160, making molestation of a minor a crime, we said: “Legislation cannot be nullified on the ground of uncertainty, if it is susceptible of any reasonable construction that will support it.” See also State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765.) In some situations, such as understandings in restraint of trade, obscenity, and taking indecent and improper liberties with a minor, meaning can better be stated by providing a general principle for conduct than by undertaking to detail every possible act to be prohibited.

Secs. 563.720 and 563.730 have been the same since 1835, when they were Secs. 31 and 32, Art. VIII, RS 1835, p. 209. Likewise “works of necessity or charity” were exempted in Sec. 28, Art. VIII, RS 1835, p. 209, as now in Sec. 563.690 to which the provisions concerning hunting were later added. The earlier statute (RS 1825, p. 311, Sec. 92) stated that the prohibition of exposure to sale on Sunday “shall not extend to the sale of articles of provision, nor to the sale of any articles of immediate necessity.” Thus we have had this exemption of “articles of immediate necessity” for more than 135 years and exemption of “works of necessity” since the territorial act of 1814 (1 Missouri Territorial and State Laws 302). Because of the long history of these provisions, the general understanding of their purpose, and the principles established by the cases for construing them, we cannot say that they are void for vagueness as failing to afford due process of law. We conclude that the term “other articles of immediate necessity” would include other articles as necessary as drugs, medicines or provisions and that this provides a standard that is not too vague for application. For example, dressings for wounds or splints or casts for broken bones are not drugs or medicines but are certainly of equal necessity; and as we have indicated articles immediately necessary to carry on work of necessity would surely be included. However, in this case, it is not seriously contended that all of the articles shown by the State’s evidence to have been sold to the witnesses herein would come within the exemption of “articles of immediate necessity” so we must hold that the State made a case for the jury and that the evidence fully supports the verdict herein.

What we have said really determines defendant’s other contentions as to violation of separation of powers provisions and failure to disclose the nature and cause of the accusation. This is true because we have held that the standard provided is not too vague and therefore defendant is given notice of the nature and cause of the accusation against it. Likewise, as shown by the Roth case (77 S.Ct. 1. c. 1313), courts and juries are not legislating in determining the side of the line on which a particular fact situation falls.

Defendant makes other contentions concerning voir dire examination, admission of evidence, instructions, form of verdict and the State’s argument to the jury. On voir dire, the prosecutor was permitted to question several jurors and receive affirmative answers, over defendant’s objections, to such questions as the following: “Now, if I prove to your satisfaction and beyond a reasonable doubt that February 22, 1959, was a Sunday, and that the Katz Drug Company at their 8th and Washington store sold goods, wares and merchandise which were not medicines or drugs and not items of immediate necessity, and if the Court instructs you .that that is a violation of the law, will you convict?” This was an improper attempt to commit jurors before they had heard evidence, instructions of the court or argument of counsel. As we said in State v. Heickert, Mo.Sup., 217 S.W.2d 561, 562: “[Cjounsel has no right on voir dire to cause the prospective jurors to pledge or speculate as to their action in certain contingencies which may later occur or arise during trial. State v. Pinkston, supra [336 Mo. 614, 79 S.W.2d 1046]; State v. Ramsey, 355 Mo. 720, 197 S.W.2d 949. The qualified and selected and instructed juror, having been attentive to the argument of counsel and to the reasoning of his fellows, should be free to reach a conclusion satisfactory to him upon the evidence introduced.” In the Heickert case, such an unequivocal pledge of conviction was not asked, and because of the trial court’s action therein we considered “the jury could not have understood they had in any way committed themselves,” so we held it was not reversible error to refuse to discharge the panel. In that case, the court “did not permit the State’s counsel to pursue the inquiry” and admonished the jury not to be influenced by it. In this case, the court did permit the State’s counsel to pursue the inquiry, overruling all objections. (Including the following: “There is an improper and incomplete attempt to commit the jurors in advance of hearing any evidence in the case to say whether they are going to convict somebody. I have no objection to asking the jury, will they follow the law; but to try and describe and limit facts and circumstances and improperly limit the law, I object to it.”) In State v. Pinkston, 336 Mo. 614, 79 S.W.2d 1046, 1049, we held permitting such voir dire questions reversible error, saying: “The state’s attorney had no right to ask the prospective juror what would be his verdict in event certain contingencies should arise.” (See also 31 Am.Jur. 123, Jury, Sec. 141; 50 C.J.S. Juries § 275, p. 1042; State v. Hawkins, 362 Mo. 152, 240 S.W.2d 688, 694.) The State says that it is not shown that those who were asked this question became jurors. However, the first question appears to have been a general one to the panel and apparently all questions were before the whole panel. Moreover, it was understood between the court and defendant’s counsel that his objection should be understood to apply to subsequent questions and that “the •court’s ruling will be the same,” so no further examination was set out. The State’s apparent purpose was to get such a commitment from all prospective jurors and the court’s ruling gave permission to do so. We hold that permitting such questions and requiring them to be answered as was done in this case was reversible error.

Defendant’s claim of error as to •evidence is permitting the State’s witnesses herein, over its objection, to testify they had no need for the articles purchased by them. Defendant says Sec. 563.720 prohibits exposure to sale and that the charge against it is exposing goods to sale that were not articles of immediate necessity. Therefore, it says while “a sale might legitimately draw into question the needs of the particular purchaser, if it were made a •crime to sell to anyone who had no immediate need of an article”; nevertheless “an exposure to sale cannot possibly be related to the lack of need of a particular purchaser, because the exposure takes place even if nothing is sold.” So defendant says: ■“[Tjhe needs of the community at large are the only needs contemplated by the statute, Section 563.730. Therefore, testimony that a sale was made to X and that he had no need of the article is wholly irrelevant and incurably prejudicial in an •exposure-to-sale case.” We think defendant is correct in saying this testimony was irrelevant and agree that the standard of ■“articles of immediate necessity” must be necessity to people generally rather than merely the necessity of a particular individual on a particular occasion. “Works of necessity’ perhaps might be related to individual necessity under some circumstances but, as to occupational work, it has been said: “The law regards that as necessary which the common sense of the country, in its ordinary mode of doing its business, regards as necessary.” (Gray v. Commonwealth, 171 Ky. 269, 188 S.W. 354, 356, L.R.A.1917B 93, 95; as fact or law issues, see State v. Schatt, 128 Mo.App. 622, 634, 107 S.W. 10, 13.) Therefore it was error to permit this testimony as to lack of an individual’s need for specific articles purchased but, in view of our ruling concerning reversible error in the voir dire examination, it is unnecessary to determine whether or not this error was prejudicial. Since this case must be retried the claim of error in rulings on objections to the oral argument need not be determined and the State will be able to consider defendant’s objections to the instructions and form of verdict in connection with the principles herein stated.

The judgment is reversed and the cause remanded.

All concur.