author: STORCKMAN, Chief Justice.

text:
    John J. STRANDBERG, Jasper Liebstadter, Richard L. Hempel, Charles Eugene Cayot, Jack Cunningham, Raymond H. Starr and Thomas M. Johnson, Respondents, v. KANSAS CITY, Missouri, a Municipal Corporation, J. C. Nichols Company, a Corporation, Helendoris Murphy, individually and as Trustee Under the Will of E. D. Fear, Deceased, Flora Anne Fear, Bonnie Ann Murphy, Walter L. Murphy, III, Patt Mortgage Company, a Corporation, and Dorothy Walthall, Appellants.
    No. 51620.
    Supreme Court of Missouri, En Banc.
    May 31, 1967.
    Rehearing Denied June 21, 1967.

      Charles F. Lamkin, Jr., James H. Hent-zen, Kansas City, Kuraner, Oberlander, Lamkin & Dingman, Kansas City, of counsel, for respondents.
    Herbert C. Hoffman, Guy W. Rice, Kansas City, for Kansas City.
    Gage, Hodges, Park & Kreamer, B. Douglas Varner, Kansas City, for Helen-doris Murphy, Flora Anne Fear, Bonnie Ann Murphy, and Walter L. Murphy, III.
    Rogers, Field & Gentry, Reed O. Gentry, Kansas City, for J. C. Nichols Co.
   STORCKMAN, Chief Justice.

This action seeks to declare invalid a Kansas City ordinance rezoning a six and one-half-acre tract of land from single-family and duplex-dwelling purposes to multistory apartment and hotel uses. The seven plaintiffs own homes outside, but nearby, the rezoned area. The defendants in addition to the city of Kansas City are the owner of the rezoned area and the prospective purchaser and developer of the area. The trial before the court without a jury resulted in a judgment declaring the ordinance void and permanently enjoining the defendants from enforcing the ordinance and from making use of the land pursuant to the ordinance. The defendants have appealed.

Two principal issues are presented on appeal. One is whether the ordinance is contrary to § 89.040, RSMo 1959, V.A.M.S., as amended Laws 1959, H.B. 493, § 1, and in violation of Art. I, § 2, Constitution of Missouri 1945, V.A.M.S., relating to general welfare and equality under the law. The other contention is that the ordinance did not receive a vote of three-fourths of the City Council as required by § 89.060, RSMo 1959, because the vote of the mayor was required for its passage and he was disqualified from voting because of a “conflict of interest”. The transcript on appeal consists of 2,009 pages; a total of 199 exhibits were offered and all but eight were admitted in evidence. There was considerable duplication, however, and the evidence on essential issues takes a rather narrow range.

The Country Club Plaza is a high-grade shopping center and commercial complex in Kansas City of irregular shape, bounded on the south by Ward Parkway or Brush Creek, on the east by Baltimore, on the north in part by 45th Street, and on the west in part by Jefferson. Its central area is occupied by commercial, professional, retail, and general office facilities. Since World War II many luxury-type apartment buildings, office buildings, business and department stores, and parking facilities have been erected in and around the Plaza. The greater portion of the land and buildings in the Plaza proper is owned by J. C. Nichols Company, one of the defendants herein. The Nichols Company also owns considerable property in the periphery of Country Club Plaza and elsewhere in Kansas City. The Company is the pioneer developer in this area.

The rezoned area consisting of approximately six and one-half acres lies in the southwest quadrant of the intersection of Ward Parkway and Wornall Road. It is adjacent to Ward Parkway on the north and to Wornall Road on its east side. Pri- or to the change complained of, the area was zoned in two categories; the greater part was R-2a for duplexes or dwellings for not more than two families, and a few lots were R-lb for single dwellings. In the rezoned area there are thirteen duplexes on Wornall Road and Ward Parkway and two single dwellings on 49th Street Terrace. Some of the duplexes were formerly single-family dwellings which have been converted to duplexes for two-family occupancy. The entire rezoned area is under the single ownership of the defendant Helendoris Murphy as trustee under the will of E. D. Fear, deceased. Mr. Fear was the father of Mrs. Murphy. West of the rezoned area, there is an R-2a district. North of the rezoned area across Ward Parkway is the Country Club Plaza zoned C-3. East of it across Wornall Road there is R-4, R-5 and R-6 zoning. The R-lb district, which is south of the rezoned area and the adjoining R-2a districts, extends south to 71st Street and is hounded on the west by State Line Road and on the east by Wornall Road. It is described in evidence as a beautiful residential area, characterized by winding roads taking advantage of natural contours of the land, by small parks and statuary, by expensive landscaping, shrubbery and flowers around the homes; it has many expensive residences surrounded by well-kept grounds. Plaintiffs’ homes are located at the northern edge of this residential district near the rezoned area. Four of them are on lots on the north side of 49th Street Terrace adjacent to the rezoned area.

Under date of January 30, 1962, the defendant Helendoris Murphy, trustee, entered into a contract for the sale of the six and one-half-acre tract to the defendant J. C. Nichols Company for the sum of $885,-000. By this contract and supplemental agreements, the sale was conditioned on the area being rezoned to District R-6 and the successful outcome of any litigation attacking the rezoning ordinance. The Nichols Company proposes to erect on this six and one-half-acre tract a hotel and three or four multistoried apartment buildings. According to the alternate site plans in evidence, the hotel would be the farthest away from plaintiffs’ homes and closest to the intersection of Ward Parkway and Wornall) Road. It would have convention and meeting rooms for which there is a demand in the Plaza area, as well as restaurants and other facilities. The apartments would be located south and west of the hotel and would probably be twenty-stories high as. permitted in an R-6 district. The hotel and apartment buildings would supply between 900 and 1000 units for living quarters.

The Nichols Company acting on behalf of Mrs. Murphy applied to the City Plan Commission for approval of the project. In due course, the Director of Traffic of Kansas City reported to the Board of Park Commissioners that although the project would generate traffic there was no sound basis for rejecting the project or reducing-its magnitude for that reason, and the provision for an additional traffic lane-on both Wornall Road and Ward Parkway would minimize greatly the possibility of increased congestion. The Board of Park Commissioners through its secretary thereafter notified the City Plan Commission that with certain immaterial provisos it had no objection to the rezoning. Initially, the professional staff of the City Plan Commission made an adverse report, and the Commission held a public hearing. Thereafter, under date of September 26, 1963, the City Plan Commission notified Mr. Ilus W. Davis, the mayor of Kansas City, and the members of the City Council that the Commission at its meeting on August 19, 1963, approved the proposed zoning amendment by a vote of five to one, with two members abstaining. The report of the City Plan Commission further states:

“The majority of the Commission believe that the reasonable potential for this area is exactly the same as that of all other land which has developed around the Plaza area, for multi-story apartment buildings.
■“Zoning districts basically reflect conditions of existing land use. Hence the area surrounding the Plaza which have developed for multi-story apartments are zoned for such use. The small remaining portion which retains its low density residential character is likewise zoned as a low density residential district.”

The rezoning ordinance, No. 29216, was passed by the City Council on October 25, 1963, and purports to be effective ten days thereafter. A favorable vote of three-fourths of all members of the City Council was necessary for the adoption of the ordinance because a protest against passage ■of the proposed ordinance was filed pursuant to § 89.060 by the owners of a sufficient area of the land adjoining the district proposed to be changed. The City Council of Kansas City consists of twelve members and the mayor. Therefore, ten votes were required for passage of the ordinance. The vote, including the ballot of Mayor Davis, was ten ayes and three noes. The plaintiffs contend that Mayor Davis was disqualified from voting because of a “conflict of interest”.

Mrs. Murphy, as trustee, was represented in this transaction by Mr. Roy K. Dietrich a member of the law partnership of Dietrich, Tyler, Davis, Burrell and Dicus, of which Mr. Ilus W. Davis was also a member. Mr. Davis was inaugurated as mayor on April 10, 1963. The land purchase contract, among other things, provided that no application for rezoning should be filed until such application and the steps preliminary to such filing are approved by Mr. Dietrich, that he should be kept fully advised of all proceedings and that he should appear along with such other attorney as the buyer may select. This provision appears in the contract dated January 30, 1962. In a letter to Mrs. Murphy dated April 30, 1963, Mr. Dietrich confirmed earlier “talks with you [Mrs. Murphy] that due to the election of my partner, Ilus W. Davis, as Mayor, neither I nor my firm could continue to represent you and that we were therefore withdrawing as your attorneys.” With the letter Mr. Dietrich presented a bill for services rendered in the sum of $3,-375. There is no evidence that Mr. Dietrich or any other member of the firm rendered any legal services for Mrs. Murphy after that date. The bill for services had not been paid at the time of the trial in November 1964. Mr. Davis testified he had not seen Mrs. Murphy prior to the trial and had not done any legal work for her. He knew that Mr. Dietrich, his partner, had represented Mrs. Murphy in connection with the property in question but he, Mr. Davis, never had anything to do with it. The witness identified six letters written to him by the plaintiffs urging him to vote against the bill. He testified he voted in favor of the rezoning. He did not receive from Mr. Dietrich or any other partner or associate of his firm any communication or solicitation for his vote. Mrs. Murphy testified that Mr. Dietrich withdrew as her attorney the latter part of April 1963 in accordance with an earlier agreement although his name still appeared as trustee in a deed of trust drafted and executed while he was representing her. The fee charged by Mr. Dietrich was on an hourly basis; it was not contingent in any respect. Mrs. Murphy testified that Mr. Dietrich had not pressed for payment because he knew her circumstances.

The trial court held that Mayor Davis was not disqualified from voting on the ordinance and that the court could not inquire into his motives for casting his vote, citing Coffin v. City of Lee’s Summit, Mo.App., 357 S.W.2d 211. The plaintiffs contend that the trial court erred in so holding. The plaintiffs seek to create a “conflict of interest” and a consequent disqualification on several theories developed solely in their written argument. They cite Supreme Court Rules 4.06 and 4.37, V.A. M.R. dealing with lawyer-client relations, but such rules present no conflict or impropriety on the facts before us. They also cite a number of cases undertaking to demonstrate that Mr. Davis in voting as a councilman was dealing with a subject matter in which he had a contractual or financial interest. This, too, is not borne out by the evidence in the case. All that is shown by the evidence is that Mrs. Murphy, a former client who is apparently solvent, owed a fee to the law firm of which Mr. Davis is a member for services rendered by another partner in the firm. It would serve no useful purpose to discuss the various decisions and other authorities cited by the plaintiffs. The evidence simply does not bear out any theory advanced by the plaintiffs.

Section 89.020 authorizes “the legislative body of all incorporated cities” to exercise zoning powers. It is well established in Missouri that the exercise of the zoning powers delegated to cities including the enactment of ordinances amending the comprehensive plan is a legislative function. Section 89.060, RSMo 1959, V.A.M.S.; Urnstein v. Village of Town and Country, Mo., 368 S.W.2d 390, 392[1]; Downing v. City of Joplin, Mo., 312 S.W.2d 81, 83[1]. As a general rule the courts will not inquire into the interests or motives of the members of a municipal legislative body in exercising their legislative functions. Coffin v. City of Lee’s Summit, Mo.App., 357 S.W.2d 211; Kansas City v. Brown, 286 Mo. 1, 227 S.W. 89, 95[9]; State ex rel. Russell v. Gardner, 218 Mo.App. 217, 265 S.W. 996, 1002[5]; 101 C.J.S. Zoning § 324, p. 1121. There is nothing in this record which disqualifies Mayor Davis from participating in the passage of the ordinance. The issue is ruled against the plaintiffs.

Section 89.020 authorizes municipal legislative bodies to regulate and restrict the use of land and structures thereon for “the purpose of promoting health, safety, morals, or the general welfare of the community”. Section 89.040 provides that such regulations shall be made in accordance with “a comprehensive plan”; it also specifies certain legislative standards. Section 89.050 provides for a public hearing before adopting regulations and restrictions and establishing district boundaries. Section 89.060 provides that such “regulations, restrictions, and boundaries may from time to time be amended, supplemented, changed, modified or repealed.”

The first comprehensive zoning ordinance in Kansas City was enacted in 1923. Since then amendments to the zoning ordinance have been made from time to time and general revisions have been enacted which have reflected the amendments made during the interval between revisions. The revisions and amendments have changed the classification of various districts and established more specific and, in some cases, broadened classification of permissive uses within the districts. The comprehensive zoning ordinance as amended to January 1, 1963, is in evidence as plaintiffs’ Exhibit 10. Plaintiffs’ Exhibit 8 is a zoning map which reflects the zoning of the area in question after the adoption of Ordinance No. 29216 on October 25, 1963. It also shows the zoning of surrounding areas from approximately 35th Street on the north to 66th Street on the south and from Prospect on the east to State Line Road on the west. The six and one-half-acre tract and adjacent areas west and south of it had been zoned R-2a since 1923, either by virtue of a pre-existing nonconforming use or by later zoning to permit duplexes or two-family dwellings. This District R-2a as it was in 1951 is shown on the zoning map, defendants’ Exhibit 172. It extended along the south side of Ward Parkway from Wornall on the east to Roanoke and Summit Drive on the west, and along the west side of Wornall from Ward Parkway on the north to 50th Street on the south. The rezoned area is composed largely of the middle portion of this R-2a district and what appears to be about nine'lots previously classified R-lb at the southwest boundary of the rezoned area. The entire rezoned area is owned by the Fear Estate. Portions of the original R-2a district remain south of the rezoned area on Wornall and west of it on Ward Parkway. The only contact the rezoned area has with a District R-lb is at its southwest portion where it is adjacent to six or seven lots classified R-lb. It is in this physical situation that the plaintiffs contend the “natural barriers” of Ward Parkway and Wornall have been breached and the rezoned R-6 district threatens and endangers the integrity of the large District R-lb in southwestern Kansas City.

The trial court concluded its rather lengthy memorandum of findings with this statement: “The efforts of defendants’ witnesses to justify the rezoning ordinance were unconvincing and unimpressive.” This and the tenor of other statements indicate a misconception as to the legal standing of a municipal zoning ordinance and who has the burden of establishing its invalidity. The rule in this respect, stated in 101 C.J.S. Zoning § 363, p. 1203, is that, “the one assailing the validity of a zoning ordinance or regulation has the burden of proof to establish that the ordinance is invalid or arbitrary or unreasonable as to his property, that there is no permissible interpretation which justified its adoption, or that it will not promote the safety, order, convenience, prosperity, and general welfare of the public.” It is incumbent on the plaintiffs to establish the invalidity of the ordinance in question. State ex rel. Manchester Improvement Co. v. City of Winchester, Mo., 400 S.W.2d 47, 49[3]; Huttig v. City of Richmond Heights, Mo., 372 S.W.2d 833, 843[9]; City of Moline Acres v. Heidbreder, Mo., 367 S.W.2d 568, 571[2]; Miller v. Kansas City, Mo.App., 358 S.W.2d 100, 104[1]; Downing v. City of Joplin, Mo., 312 S.W.2d 81, 84[4]; Flora Realty & Investment Co. v. City of Ladue, 362 Mo. 1025, 246 S.W.2d 771, 778[6]. Unless the rezoning ordinance in question is clearly proved to be invalid, it must stand.

In general the plaintiffs testified that they had purchased their homes in reliance on the zoning in the district in which they were situated and the zoning in the adjacent district, and that the value of their homes would be depreciated by reason of the rezoning and the erection of the hotel and apartments in the nearby R-6 district. The plaintiff, John J. Strandberg, a banker, testified that the aggregate value of his home and the eight houses to the west of him on 49th Street Terrace, assuming that the zoning ordinance had not been enacted, would be $385,000, and that the rezoning and development of the area as contemplated would reduce the value of the residence properties described to approximately $150,000. There was also evidence that the northern view of some of the plaintiffs would be interfered with by reason of the erection of the buildings on the rezoned area. On the other hand, there was evidence by the defendants that the value of property adjoining and in the vicinity would be increased by the erection of the hotel and apartment buildings of the kind proposed. Records of sales made recently tended to show a rise in values.

The fact that loss will be sustained through depreciation of the value of property in or adjoining the area rezoned is not controlling in determining whether the zoning ordinance is so arbitrary and unreasonable as to be invalid. Flora Realty & Investment Co. v. City of Ladue, 362 Mo. 1025, 246 S.W.2d 771, 779[8]; Huttig v. City of Richmond Heights, Mo., 372 S.W.2d 833, 840[3]; State ex rel. Oliver Cadillac Co. v. Christopher, 317 Mo. 1179, 298 S.W. 720, 726[6]; Miller v. Kansas City, Mo.App., 358 S.W.2d 100, 104-105[3]; 101 C.J.S. Zoning § 37, p. 746. Some readjustment of values is usually an incident of any zoning ordinance. All of the disadvantages attributed by the plaintiffs to the project may be translated into financial loss, that is, depreciation in the value of their properties. Their proof on this issue is by no means clear and convincing. It is largely opinion evidence of interested persons and the evidence of recent sales. At most the evidence raises a debatable issue and does not demonstrate the rezoning to be invalid.

In connection with the application of § 89.040, the plaintiffs assert that the objectives of this statute “must be reached by a zoning ordinance which has in view conserving the values of existing buildings, and bears a demonstrable and substantial relationship to the welfare of the community.” They cite such cases as Flora Realty & Investment Co. v. City of Ladue, 362 Mo. 1025, 246 S.W.2d 771; Huttig v. City of Richmond Heights, Mo., 372 S.W.2d 833; State ex rel. Housing Authority of St. Louis County v. Wind, Mo.App., 337 S.W.2d 554, and Colt v. Bernard, Mo.App., 279 S.W.2d 527. There does not appear to be any controversy about the statutory guidelines. The plaintiffs’ statement repeats part of the statutory language. The entire statement on this subject from § 89.-040 is as follows: “Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the values of buildings and encouraging the most appropriate use of land throughout such municipality.” Section 89.020 also has a general statement of the purposes of the legislation. These are principles to be considered in determining whether the zoning ordinance is a valid exercise of the legislative power delegated to the City Council.

Under point 1(A) of their brief, the plaintiffs assert that the zoning ordinance involved does not meet but on the contrary violates the criteria of the enabling statute § 89.040. In the first place, the enabling act is a series of statutes consisting of §§ 89.010 through 89.140. Further, the plaintiffs fail to distinguish from regulations and restrictions within a district and a change or modification of the boundaries of a district. The term regulations and restrictions as used in the enabling act relates primarily to the height and size of buildings, the size of yards and other open spaces, and the location and use of buildings and land. Section 89.030 provides that the local legislative body may divide the municipality into districts of such number, shape, and area “as may be deemed best suited to carry out the purposes of sections 89.010 to 89.140” and “within such districts may regulate and restrict the erection, construction, reconstruction, alteration or use of buildings, structures, or land.” Italics added. The section further provides that all such regulations shall be uniform “throughout each district, but the regulations in one district may differ from those in other districts”. The following section, 89.040, opens with the statement that “Such regulations shall be made in accordance with a comprehensive plan”.

At the trial the plaintiffs contended that their Exhibit 77 was the comprehensive plan of Kansas City. This is a document entitled a Master Plan for Kansas City which was prepared by the City Plan Commission in 1947 apparently for its own use; in any event, it is not an enactment of the City Council of Kansas City. The trial court found that the comprehensive plan was “the general zoning ordinance, if any, which is in effect at any particular time.” This finding was in substantial accord with the testimony of defendants’ witnesses. The plaintiffs assert that this is “ridiculous”. We cannot agree. In a narrower sense there is a comprehensive plan for each of the districts in that the regulations and restrictions must be uniform for each class or kind of buildings throughout each district. In a larger sense the term may properly be applied to the general zoning ordinance in effect at a particular time including all valid amendments thereto. See City of Moline Acres v. Heidbreder, Mo., 367 S.W.2d 568, 572-573, and State ex rel. Hewlett v. Womach, 355 Mo. 486, 196 S.W.2d 809, 812[2], The Kansas City Zoning Ordinance in effect in 1963, plaintiffs’ Exhibit 10, is indeed quite comprehensive. In addition to providing regulations and restrictions for each of the various use districts, it has numerous general requirements and provisions designed to carry out the purpose and intent of the enabling act consisting of §§ 89.010 through 89.140. On the record before us, there is no showing that the amendatory ordinance here involved is not in accordance with the comprehensive plan.

The plaintiffs further break down the contention of noncompliance into ten additional items based on subjects mentioned in § 89.040. Under this point 1(A), (a) through (k), only three Missouri cases are cited—Hoffman v. Kinealy, Mo., 389 S.W. 2d 745; State ex rel. Magidson v. Henze, Mo.App., 342 S.W.2d 261, and State ex rel. Sims v. Eckhardt, Mo., 322 S.W.2d 903. These cases involve building regulations and restrictions, and the proper agencies to carry out the grant of legislative powers. They are not helpful in this situation. The plaintiffs’ remaining contentions under this heading are extremely tenuous. For example they assert that the identity of the site of the Battle of Westport will eventually be lost if the rezoning is accomplished. They say that this would violate the provision that regulations should be designed to preserve features of historical significance. Plaintiffs’ Exhibit 27 is a photograph of a historical marker giving a description of the battle. According to the inscription on it, the marker was erected by the Native Sons of Kansas City, Missouri, on October 23, 1964, which was three days before the trial of this case began. A notation on the exhibit states that the marker is located 1400 feet southwest of the rezoned area. If the identity of the site has not been lost by the buildings already constructed in the vicinity and the lapse of a hundred years before the marker was erected, it is difficult to comprehend how the apartments and hotel over a quarter of a mile away will have that effect. Since the nature of the items appear in § 89.040, they need not be repeated here. The assertion that the regulations do not promote health and general welfare, and related matters, will be considered later so far as they enter into the larger question of whether the change of district boundaries was contrary to the general welfare. Otherwise the evidence does not make a case for relief under § 89.040, and the claim is denied.

The zoning statutes confer upon the municipalities specified a portion of the police power of the state. Such power is to be exercised by the municipal legislative body for “the purpose of promoting health, safety, morals, or the general welfare of the community”. Section 89.020. The local legislative body “may divide the municipality into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of sections 89.010 to 89.-140.” Section 89.030. The district “boundaries may from time to time be amended, supplemented, changed, modified or repealed.” Section 89.060. Under the grant of power to enact zoning ordinances, the legislative body of a city has the duty to determine the classification to be given any particular area and, unless it appears that the enactment of the city council is clearly arbitrary and unreasonable in that it bears no substantial relationship to the public health, safety, morals or general welfare, a court cannot substitute its judgment for that of the city council and the ordinance cannot be held invalid. Landau v. Levin, 358 Mo. 77, 213 S.W.2d 483, 485[2]; Kellog v. Joint Council of Women’s Auxiliaries Welfare Ass’n, Mo., 265 S.W.2d 374, 377[3, 4]; Deacon v. City of Ladue, Mo.App., 294 S.W.2d 616, 624[9]; Downing v. City of Joplin, Mo., 312 S.W.2d 81, 84[5]; Huttig v. City of Richmond Heights, Mo., 372 S.W.2d 833, 843. The applicable rule is stated in the Kellog case, 265 S.W.2d at page 377, in slightly different language but with the same legal effect: “It is particularly the duty of a City in enacting a zoning ordinance to say in what district a particular area of the City should be placed, and, although the reasonableness of a City’s classification is doubtful or even fairly debatable, the judgment of a court may not be substituted for the judgment of the City as to the propriety and reasonableness of the classification. * * *. A court will not disturb legislative or administrative action in zoning unless beyond reasonable doubt the action is an abuse of discretion or an excess of power, having no substantial relation to the evils to be remedied or to the public health, safety, and welfare or other proper object of the police power.” By these standards the evidence is not sufficient to support a judgment declaring Ordinance No. 29216 to be invalid.

The evidence, some of which has been previously discussed, is highly persuasive that there is a present need which will extend in the future for this kind of hotel and apartment accommodations in the Plaza area. In exercising the zoning powers, a city council is justified in trying to anticipate future developments as well as present trends. City of Moline Acres v. Heidbreder, Mo., 367 S.W.2d 568, 573; § 89.040. In paragraph 48 of its findings the trial court conceded that the evidence raised “a debatable question” as to the need for luxury-type apartments and hotel facilities. However, the trial court’s view was that the need could be met at other locations. There was evidence that the Nichols Company owned real estate at other locations where apartments were permitted, but none of them were large enough to accommodate the entire project that the Company proposed to put on the rezoned area.

The courts are concerned with the power of a city acting through its city council and not with the wisdom and expediency of the transaction since it is for the legislative body and not the judiciary to determine the policy of the law. Annbar Associates v. West Side Development Corporation, Mo., 397 S.W.2d 635, 655[19]; School District of Kansas City v. Kansas City, Mo., 382 S.W.2d 688, 698[17]; In re Kansas City Ordinance No. 39946, 298 Mo. 569, 252 S.W. 404, 407[1], 28 A.L.R. 295; 101 C.J.S. Zoning § 324, p. 1121. In the case at bar, the site of the abandoned E. C. White School was put forward by the plaintiffs as a place where the complex could be constructed, but the evidence did not establish that it was suitable or for sale. It is of interest that a similar contention was made in School District of Kansas City v. Kansas City, supra. It was said that the proposed library should be built on the E. C. White School site, already owned by the School District, rather than one near 47th and Main Streets, which the City had agreed to let the School District use. The wisdom or expediency of rezoning the area in question was for the City Council and should not be interfered with under the evidence in this case.

We cannot share plaintiffs’ alarm that the rezoned area will expand like a “cancerous growth” and destroy the District R-lb. It can as plausibly be argued that it will be a more effective barrier than the previous duplex-dwelling classification. There was evidence that some of the duplexes were in a bad state of repairs. The evidence of recent construction in the area as well as expert testimony showed a trend toward apartment dwelling. This is, no doubt, influenced by the rising cost of maintaining a detached single-family residence and securing needed help to do so. There is nothing in the evidence to indicate that the Nichols Company has departed from the kind of performance which has contributed much to the proper development of this area in Kansas City. It is as likely as not that the plaintiffs will ultimately be benefited. The evidence tended to show that this project is similar to other apartment dwellings that practically surround the Plaza proper and have the advantage of being in easy walking distance of this commercial and shopping district. Practically all new developments, commercial or residential, tend to increase motor-vehicle traffic on streets already used beyond rated capacity. The evidence tends to show that the amount of traffic increase is not sufficient to justify holding the rezoning to be arbitrary and unreasonable. See Huttig v. City of Richmond Heights, Mo., 372 S.W.2d 833, 840.

The plaintiffs further contend that the ordinance is a piecemeal departure from a comprehensive plan and constitutes improper “spot zoning”. Ordinarily, the term “spot zoning” is used to denote an amendment to the municipal zoning law reclassifying one or more lots or parcels of land for a use out of harmony with the classification of the surrounding areas and without regard to the public welfare. State ex rel. Christopher v. Matthews, 362 Mo. 242, 240 S.W.2d 934, 937[1]; 101 C.J.S. Zoning § 91. In 101 C.J.S. Zoning § 91, at pages 844-845, the rule is stated in this fashion: “Accordingly, a reclassification of only the lot or lots of a single person from a residential to a business, commercial, or industrial district, without lawful basis and without reference to the public welfare, is improper spot zoning.” In this case the area has been reclassified to a less restrictive residential use but not to a business, commercial, or industrial district. Typical of improper spot zoning are: Allega v. Associated Theatres, Mo.App., 295 S.W.2d 849, rezoning a 20-acre tract in a residential zone in a city to a general business zone so as to permit the construction and operation of a drive-in theater; Numer v. Kansas City, Mo.App., 365 S.W.2d 753, rezoning a lot in a residential section to permit use of the property for a gasoline filling station; State ex rel. Cooper v. Cowan, Mo.App., 307 S.W.2d 676, rezoning an area in a residential district for use as a service station; Mueller v. C. Hoffmeister Undertaking & Livery Co., 343 Mo. 430, 121 S.W.2d 775, rezoning an area in a residential district to a commercial district to accommodate the enlargement of a mortuary; Wippler v. Hohn, 341 Mo. 780, 110 S.W.2d 409, rezoning an area from multiple dwelling to a commercial classification for use as a garage building.

Whether a rezoning ordinance will be held invalid depends on the circumstances of each case. State ex rel. Christopher v. Matthews, 362 Mo. 242, 240 S.W.2d 934, 937[2]; Kellog v. Joint Council of Women’s Auxiliaries Welfare Ass’n, Mo., 265 S.W.2d 374, 377[3, 4]; Huttig v. City of Richmond Heights, Mo., 372 S.W.2d 833, 842[7]; Miller v. Kansas City, Mo.App., 358 S.W.2d 100, 106[8]. Much of the evidence bearing on this issue has already been referred to and discussed. The documentary evidence is quite convincing that the rezoning ordinance does not constitute improper spot zoning. The zoning maps show that as far back as 1951 the area in question was bounded on the north by District C-3 for intermediate business, and on the east by District R-5 permitting twelve-story apartments and R-2a permitting duplex dwellings. By 1964 the eastern boundary of the area in question was all R-4, R-5, and R-6 districts. The rezoning ordinance, plaintiffs’ Exhibit 101, shows that the area in question extends to the middle of Brush Creek on the north and the middle of Wornall Road on the east. The plaintiffs’ main concern seems to be that the rezoned area will be extended south and downgrade the fine residential district in southwest Kansas City. The documentary evidence tends to demonstrate that this is most unlikely to happen. The zone map which is plaintiffs’ Exhibit 8 shows a District R-5 area in the southeast quadrant of Wornall and Meyer Boulevard which is adjacent to this District R-lb on three sides. On the north is a C-2 district for local retail business on both sides of 63rd Street. This C-2 district extends into the R-lb area from the eastern boundary of the district westward to Wornall. Farther north in this District R-lb are several small patches of C-l, R-2a, R-4, and R-5 districts. The northern limit of this R-lb area east of Wornall consists of C-2 and R-2a districts. On the face of the maps and considering the history of development in the Plaza area, there seems to be little likelihood of this rezoned R-2 area extruding into the R-lb district through the small contact presented. The “entering wedge” which the plaintiffs fear is more likely to come from the other sources mentioned above. The extension of the apartment classification across Wornall Road to the west was in accordance with the growth and changing conditions in the area involved and encouraged the most appropriate use of the land. Under all the circumstances, it was not an unlawful departure from the comprehensive plan and did not constitute unlawful spot zoning. State ex rel. Christopher v. Matthews, 362 Mo. 242, 240 S.W.2d 934, 938[5]; Miller v. Kansas City, Mo.App., 358 S.W.2d 100, 106[9]; Huttig v. City of Richmond Heights, Mo., 372 S.W. 2d 833, 842[8]; Kellog v. Joint Council of Women’s Auxiliaries Welfare Ass’n, Mo., 265 S.W.2d 374, 377[5]; Hedin v. Board of County Commissioners, 209 Md. 224, 120 A. 2d 663, 666[3].

The plaintiffs’ final contention is that the rezoning ordinance was enacted for the private purposes of J. C. Nichols Company and violates Art. I, § 28, Constitution of Missouri 1945, in that it results in taking of private property for private use. In essence the contention is that the value of plaintiffs’ property for use as private residences will be depressed if the proposed construction is carried out and the Nichols Company will benefit in that the apartment and hotel would be within walking distance of the shopping center and the patronage of the tenants would result in greater rentals and revenue for the Nichols Company. This contention has been largely answered by what we have heretofore said. Additionally, it may be observed that there is no evidence that the Nichols Company will certainly profit. The construction of the complex is expected to take from ten to fifteen years. What may appear to be a profitable venture now might turn into a loss in the future. Furthermore, since zoning and rezoning is an exercise of the police power of the state, the public interest and welfare is being served and it cannot be said that § 28 of Art. I is violated although some private person might incidentally make a profit. Arata v. Monsanto Chemical Co., Mo., 351 S.W.2d 717; City of Clayton v. Nemours, 353 Mo. 61, 182 S.W.2d 57; In re Kansas City Ordinance No. 39946, 298 Mo. 569, 252 S.W. 404, 28 A.L. R. 295. The contention is denied.

We have considered all of plaintiffs’ contentions and find them to be without merit. At most the evidence adduced tends to show that the reasonableness of the classification of the rezoned area is debatable and doubtful, but it is not sufficient to prove that the action of the City Council is clearly arbitrary and an abuse of discretion in that it bore no reasonable relationship to the health, safety, morals, or general welfare of the community. Hence, the trial court erred in holding the ordinance invalid.

Accordingly, the judgment of the trial court is reversed. This court further finds the issues in favor of the defendants and against the plaintiffs and orders, adjudges, and declares that the Zoning Ordinance No. 29216 is not void but is a valid and subsisting zoning ordinance of Kansas City, and further orders that plaintiffs’ petition be dismissed at plaintiffs’ cost.

All concur.

SEILER, J., not participating because not a member of the court when cause was submitted.


source: Caselaw Access Project

author: HOUSER, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Paul Andrew SMITH, Appellant.
    No. 52273.
    Supreme Court of Missouri, Division No. 1.
    June 12, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, W. Scott Pollard, Special Asst. Atty. Gen., St. Louis, for respondent.
    J. Whitfield Moody, J. Arnot Hill, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.
   HOUSER, Commissioner.

Paul Andrew Smith was convicted by the verdict of a jury of the commission of the crime of forgery, under § 561.011, subd. 1 (3). The court having found him guilty of a previous felony, defendant was sentenced to 10 years in the custody of the department of corrections, under the second offender act. § 556.280.

On his appeal the only question is whether this conviction should be reversed on the ground that defendant’s oral confession was improperly admitted in evidence, in violation of his constitutional rights under the Sixth and Fourteenth Amendments to the Constitution of the United States, because not voluntarily given. The claim of involuntariness is based upon the contention that defendant was not informed that he was entitled to counsel before making the oral statement.

While attempting to cash a check at a store defendant was arrested and taken to a police station. The interrogating officer asked defendant if he would make a written statement about “the check business” at the Safeway Store. Defendant said that he would. The officer then advised him of his constitutional rights; that he did not have to make a statement; that anything he said to the officer could be used in a court of law in event of a trial, and that he could consult with friends and attorneys. After having been so advised the defendant said, “No, I changed my mind, I would rather not make a written statement, but I will just tell you about it.” The officer continued to talk to defendant “in regards to the check,” without “repeating the rights to him twice.” He asked him where he had gotten the check and he said he “got it from someone” but would rather not tell who “because he would not want to get anybody else in trouble.” He then told the officer that he had attempted to cash this check because he needed the money.

This case was tried prior to June 13, 1966. The proper test to be applied in determining the admissibility of statements offered in trials occurring before that date is whether the totality of circumstances deprived the defendant of a free choice to admit, to deny, or to refuse to answer, and whether physical or psychological coercion was of such a degree that the defendant’s will was overborne at the time he confessed. One datum of importance bearing on the inquiry is the presence or absence of advice concerning the defendant’s constitutional rights, including his right to communicate with lawyers and the granting or refusal of requests to communicate with lawyers. State v. Beasley, Mo.Sup., 404 S.W.2d 689, 692[4]; State v. Craig, Mo.Sup., 406 S.W.2d 618, 623[8, 9].

It is not contended that defendant was wholly uninformed with respect to his right to counsel, or that he was denied a request to communicate with counsel. He concedes that after he had agreed to make a written statement about the subject matter of the inquiry the police officer informed him of his right to consult with an attorney and was told that anything he said could be used in a court of law in the event of a trial. There is no evidence that he asked for an opportunity or time in which to consult a lawyer. His objection is that he was not sufficiently apprised. He objects to the officer’s “vague reference to lawyers” and contends that he did not understand that an oral statement could or would be used against him. His position is that a suspect is entitled to the guiding hand of counsel at every step of the proceedings against him; that the period of interrogation is a critical period in the proceedings, and that he should have been informed of his right to consult with counsel not only when the subject of a written statement was under discussion, but also should have been so informed a second time, when it became apparent to the officer that defendant was going to make an oral statement. He also takes the position that the officer knew from experience that one who would attempt to cash a check for $51 very likely did not have funds to hire a lawyer, “yet the officer did not ask him if he could hire counsel and did not inform him that if he could not, the Court would appoint him one.”

Where before incriminating himself a suspect is told that he has a right to obtain counsel, consult with a friend or remain silent and say nothing, and that whatever he says may be used against him, the essential requirements are met. State v. Boykins, Mo.Sup., 399 S.W.2d 70. In this case, as in Boykins, there is not the slightest intimation that defendant’s incriminating statements were made as a result of threats, force, promises, or physical or mental coercion. When under these circumstances an officer thus informs a suspect of his constitutional rights and gives him the option of proceeding with his statement or of discontinuing the interview to give him an opportunity to talk to a lawyer or with friends, and the suspect elects to go ahead with his recital, any incriminating statements made to the police thereafter, whether oral or written, may be used against him at the trial. Once having been advised as to his right to counsel; that he is not obliged to make any statement, and that anything he says may be used against him in court, he is not entitled to a second admonition, and may not claim foul, where he mistakenly interprets the first admonition to apply only to written statements. “Anything you say” reasonably includes both oral and written statements.

In State v. Craig, supra, it was contended in effect that admissions are to be considered involuntary if made outside the presence of counsel. Instead, we applied the totality of circumstances rule. “We have never held that the lack of an attorney when a defendant is interrogated and a statement is taken renders the confession invalid per se.” State v. Davis, Mo.Sup., 400 S.W.2d 141, 149. Nor have we ever held that there is a duty on the part of an interrogating officer to inquire into the financial ability of a suspect and in case of indigency to inform him of his right to court-appointed counsel.

There is no evidence that defendant was deprived of a free choice to admit, to deny or to refuse to answer, or that he was subjected to any coercion whereby his will was overborne, considering the advice which was given him concerning his constitutional rights, and the duration of and the circumstances surrounding the interrogation which preceded the making of the incriminating statement. From the totality of the circumstances it appears that defendant’s statement was voluntary and that it was properly admitted in evidence.

An examination of the record as required by Criminal Rule 28.02, V.A.M.R. discloses no error.

The judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.

      . All section references are to RSMo 1959, V.A.M.S.


author: DONNELLY, Judge.

text:
    CORNET & ZEIBIG, INC., a Corporation, Respondent, v. 430 WITHERS REALTY CO., a Corporation, Appellant, and Missouri Pipe Fittings Company, a Corporation, Respondent.
    No. 52564.
    Supreme Court of Missouri, En Banc.
    May 8, 1967.
    Rehearing Denied June 12, 1967.

      Mark D. Eagleton, Thomas F. Eagleton, J. J. Thyson, Daniel P. Reardon, St. Louis, for Missouri Pipe Fittings Co.
    Cook, Murphy, Lance & Mayer, D. Jeff. Lance and Samuel B. Murphy, St. Louis, for respondent Cornet & Zeibig, Inc.
    Edwin Grossman, John T. Murphy, Jr., St Louis, for Withers Realty Co.
   DONNELLY, Judge.

In this court-tried suit, Cornet & Zeibig, Inc., a real estate broker (Broker) sued 430 Withers Realty Company (Seller) and Missouri Pipe Fittings Company (Buyer) for a commission in connection with the sale of real estate in the City of St. Louis. Seller cross-claimed against Buyer for such amount as Broker recovered against Seller, together with the cost of defending Broker’s claim. At trial, Broker dismissed as to Buyer. Judgment in the trial court was for Broker on its petition and for Buyer on Seller’s cross-claim.

Seller appealed to the St. Louis Court of Appeals where an opinion was written, concurred in by a majority of the Court, reversing the judgment of the trial court, holding for Seller against Broker, and that Seller is entitled to recover its costs of defense against Buyer. Ruddy, J., concurred in result as to the dispute between Broker and Seller, but dissented as to the dispute between Seller and Buyer, and certified the case to this Court. Seller contends that our review in these circumstances is limited to the issue causing the certification. We do not agree. The entire case will be determined here “the same as on original appeal.” Rule 84.05(h), V.A. M.R.; Mo.Const., Art. V, § 10 (1945), V.A. M.S.; Combellick v. Rooks, Mo.Sup., 401 S.W.2d 460; State ex rel. Whittington v. Strahm, Mo.Sup., 374 S.W.2d 127.

The controversy involves Edmund F. Gorman and Irving Jack Hunstein (for Broker); Mortimer Ross, President, and Edwin M. Grossman, Attorney (for Seller) ; and Mark D. Eagleton, President; J. J. Thyson, Vice-President and Attorney; and Bill Roewe, Plant Manager (for Buyer).

In 1960, Seller decided to sell its factory building and adjoining lot. Ross posted a “For Sale” sign on the building and placed advertisements in the Wall Street Journal and St. Louis Post-Dispatch. Gorman saw the sign in the Fall of 1960, called Ross, learned the asking price was $192,500, and Ross informed him he would pay a six percent commission if Broker “produced or introduced” a buyer. Gorman and Hun-stein inspected the building.

Later, in January, 1961, Hunstein saw the newspaper advertisement, and not connecting the advertisement with the property he had inspected, called Ross, inquired about the property, and asked Ross if he would pay a real estate commission. There is a dispute in the testimony here. Hunstein testified that Ross “said that he would,” and that “if we produced a buyer he would pay a commission.” Ross testified that he told Hunstein there was a commission on a sale price of $192,500 but that he did not promise to pay a commission on a sale price other than $192,500.

Over the previous two-year period, Hun-stein had shown Buyer a number of buildings. After he talked with Ross, Hunstein called Roewe, and on or about January 18, 1961, arranged with Ross for Roewe to inspect the building. Roewe indicated an interest in the building, and Ross gave Hun-stein a key to the building so that Roewe’s associates could inspect the building. Within the next day or two, Hunstein took Ea-gleton and Roewe through the building. It then became necessary that Thyson view the building so Hunstein took the key to Thyson. During this period of time, Hun-stein kept Ross informed. Within a week or ten days, Hunstein discussed the matter with Eagleton, and Buyer agreed to make an offer of $130,000. Eagleton gave Hun-stein an “earnest money” check for $1,000, and Hunstein prepared a contract dated February 1, 1961, specifying a closing date of March 3, 1961. On February 2, 1961, Thyson signed the contract in behalf of Buyer, and Hunstein took the contract to Ross, who examined it. Ross informed him that $130,000 was not enough money and, after some discussion, agreed to take “$170,000 net” with Broker’s commission to be “on top of this net figure.” Hunstein reported back to Buyer that its offer had been rejected but that Ross would accept $180,000. Hunstein testified that he was informed that Buyer “would have to talk it over and think about it.” Thyson testified that Hunstein called him on February 3, 1961, told him he had submitted the $130,000 offer to Ross and Ross had turned it down, and that Hunstein said, “I thought we had a chance but you never know owners, and he turned this down and it’s final, the thing is dead, so I’m going on to something else and I’ll send you back the contract.” On February 6, 1961, Hunstein wrote a letter to Buyer in which he said, “I am sorry we were unable to make this deal but I felt all along that we had an outside chance.” He returned the $1,000 check with the letter but did not return the contract.

Buyer, after receipt of Hunstein’s letter of February 6, 1961, directed its attention to purchase of some land in Troy, Illinois, and encountered difficulties there. Buyer then entered into direct negotiations with Seller. Over a period of several days Buyer made an offer of $140,000, Seller turned it down, Buyer offered $150,000, Seller reduced to $165,000, and finally an agreement was reached at $157,500. On March 3, 1961, an earnest money contract was signed by Seller and Buyer. Buyer agreed therein to hold seller harmless from any claims of Broker, together with the cost of defense of same, and Seller covenanted that it had not entered into any agency contract with Broker.

In early March, 1961, Hunstein met Ross on the street, and “since I was trying to sell his building, I crossed over the street to talk to him briefly.” Ross told Hunstein he had sold the building but did not tell Hunstein that Buyer had bought it. Later, Hunstein attempted to interest Buyer in the Medart Building and first learned from Buyer of its purchase of Seller’s building. Broker then demanded a commission.

We review' the case “upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Supreme Court Rule 73.01(d), V.A.M.R.

Is Broker entitled to recover a commission from Seller under the facts in this particular case? The first question for determination is whether a binding contract of employment existed between Seller and Broker. Seller contends that the evidence shows at most an offer by Ross which never ripened into a binding, bilateral contract. Broker contends there was an implied contract of employment between Seller and Broker.

This Court in Windsor v. International Life Ins. Co., 325 Mo. 772, 781, 29 S.W.2d 1112, 1116, said: “Before an owner may become liable upon an implied contract, it is essential that the owner know, or has reasonable ground to believe, that the services of the broker are to be rendered with the expectation of receiving payment therefor. On this subject, in Atwater v. Lockwood, 39 Conn. 45, loc. cit. 49, the court say: ‘Unless the defendant knew while the service was being rendered that the plaintiff was acting for him, or had such information on the subj ect as would cause a person of ordinary understanding under like circumstances to believe that he was so acting, no implication of employment can be made. A contract is the meeting of the minds of the contracting parties, and where there is no express contract, the party sought to be charged must have such knowledge, or what is equivalent thereto, before his mind can act on the subject, and assent to the terms of the contract.’ Weinhouse v. Cronin, 68 Conn. 250, 36 A. 45. In Segnitz v. A. Grossenbach Co., 158 Wis. 511, loc. cit. 514, 149 N.W. 159, 160, the rule is stated thus: ‘In order to raise an implied contract to pay for services, several things are necessary * * * First, the services must have been performed under such circumstances as to give the recipient thereof some reason to think they are not gratuitous, nor performed for some other person, but with the expectation of compensation from the recipient. * * * Second, in order to raise an implied contract to compensate for them, the services must have been beneficial to the person sought to be made liable.’ 43 A.L.R. 843.”

The parties agree that Hunstein and Ross discussed the property and the payment of a commission. Hunstein contacted Buyer, showed the property to Buyer, induced Buyer to make an offer, and conveyed the offer to Ross. Ross knew of all this and knew Hunstein expected to be compensated for it. We cannot infer from the evidence that Ross expected Hunstein’s services to be gratuitous. Hunstein’s services were beneficial to Seller. The first contact between Seller and Buyer was made through Hunstein’s efforts. We do not believe that under the evidence it can be said that Hunstein was Buyer’s agent. There is no evidence that Hunstein expected compensation from Buyer for his efforts. We hold that a binding contract of employment existed between Seller and Broker. Windsor v. International Life Ins. Co., supra; Chamberlain v. Grisham, 360 Mo. 655, 230 S.W.2d 721.

Seller contends that Broker cannot recover because Ross did not promise to pay a commission on a sale price other than $192,500. We recognize the rule of law that “when the contract between the broker and his principal expressly makes the payment of commissions dependent on the obtaining of a certain price for the property the broker cannot recover, even though the owner sells at a lower price to a person to whom the broker has first shown the property, * * *.” 46 A.L.R.2d 848, 859. However, this rule is not applicable here.

The parties agree that in January, 1961, Hunstein called Ross, inquired about the property, and asked Ross if he would pay a real estate commission. Hunstein testified that Ross “said that he would,” and that “if we produced a buyer he would pay a commission.” Ross testified that he told Hunstein he would pay a commission on a sale price of $192,500 but that he did not promise to pay a commission on a sale price other than $192,500. The trial court resolved this conflict in the testimony in favor of Hunstein and we cannot find his ruling to be clearly erroneous.

Seller contends that Broker cannot recover because Broker “abandoned the deal and as a result was not the procuring cause” of the sale. Seller cites in support of its contention Real Estate Enterprises, Inc. v. Collins, Mo.App., 256 S.W.2d 286. This case, and Young v. Stecher Cooperage Works, 259 Mo. 215, 168 S.W. 611, cited therein, are not in point. In those cases, the agencies were for specified periods, the sales were consummated long after the agencies had expired, and the courts properly found abandonment. Here the agency was for an unspecified period. Seller also cites Taylor v. Vestal, Mo.Sup., 304 S.W.2d 820, where this Court held for the seller and against the broker. The Taylor case is not in point. In that case, the broker did not make any effort to interview the buyer “or in any way pursue negotiations to the end of inducing her to purchase.” 304 S.W.2d 820, 824.

Seller relies upon Hunstein’s statement to Thyson, his letter of February 6, 1961, sent to Eagleton, his return of the earnest money to Buyer, and his return of the keys to Ross, all evidencing Hunstein’s belief that “he couldn’t make the deal.” Seller also contends that Buyer’s interest in the Troy, Illinois property constituted “a definite break in the continuity of the negotiations amounting to an abandonment of the deal.” Real Estate Enterprises, Inc. v. Collins, supra.

We recognize the rule of law to the effect that although “the broker may be the means of first bringing the parties together and of opening negotiations with them, yet if the negotiations are unproductive and the parties in good faith withdraw therefrom and abandon the proposed purchase and sale, a subsequent renewal of negotiations followed by a sale at a lower price does not entitle the broker to commissions, as he cannot be said to be the procuring cause of the sale.” 46 A.L.R.2d 848, 864, 865. However, in our opinion, there is not sufficient evidence of abandonment to preclude recovery by Broker in this case. It is undisputed that the property was originally placed in the hands of Broker for sale. Hunstein “found” Buyer for Seller, took Buyer’s representatives through the building, and persuaded Buyer to make Seller an offer for the property, which offer, though rejected by Seller, was the first phase of serious negotiations for the sale of the property. This offer was conveyed to Ross on February 2, 1961. The sale was consummated on March 3,1961. Hunstein’s actions, taken in the belief “he couldn’t make the deal,” did nothing to hamper the consummation of the sale. The fact that Seller and Buyer did not see fit to include Hunstein in their direct negotiations cannot be allowed to legally prejudice Broker, particularly when these negotiations and the consummation of the sale were unknown to Hunstein.

In Tyler v. Parr, 52 Mo. 249, 251, this Court held that “if the agent introduces the purchaser, or discloses his name to the seller, and through such introduction or disclosure negotiations are begun, and the sale of the property is effected, the agent is entitled to his commissions though the sale may be made by the owner.” In 46 A.L.R.2d 848, at 852, it is said: “The general proposition is well established that if property is placed in the hands of a broker for sale at a certain price, and a sale is brought about through the broker as a procuring cause, he is entitled to commissions on the sale even though the final negotiations are conducted through the owner, who, in order to make a sale, accepts a price less than that stipulated to the broker. The law will not allow the owner of property sold to reap the fruits of the broker’s labor and then deny him his just reward.” See also Bell v. Kaiser, 50 Mo. 150.

The essential question is whether Hunstein’s efforts brought about the sale. This question is really answered by what has already been said. Broker’s contract was not that Hunstein should find one willing to buy on terms that Seller would find acceptable, and then attend to the negotiations and bring the parties safely through them to a consummated sale before being entitled to a commission. All he had to do was “produce a buyer,” bring the parties together, and let them do the necessary negotiating. Hunstein did all of this and it cannot be said that his efforts were not a procuring cause of the sale. We hold that Broker is entitled to a commission of $9,450.

We finally consider whether Seller is entitled to recover from Buyer under the terms of the “hold harmless agreement” contained in the earnest money contract executed by Seller and Buyer on March 3, 1961. It reads as follows:

“Purchaser agrees to indemnify and hold Seller and Mortimer Ross harmless from any and all claims of Cornet & Zeibig, Inc., and Jack Hunstein, or either of them, for a commission in connection with this sale, together with the cost of defense of same. Seller warrants that neither Seller nor Mortimer Ross entered into any agency contract with Cornet & Zeibig or Hunstein for the sale of the said property.”

The question as to whether a contract existed between Seller and Broker has already been affirmatively answered. Was it an “agency contract” within the terms of the agreement ? We believe that it was. In Wolfersberger v. Miller, 327 Mo. 1150, 1160, 39 S.W.2d 758, 762, this Court said: “It appears to be the general doctrine, in fact we have discovered no case to the contrary, that the relationship existing between a real estate broker and the vendor of real estate is that of agency, and that the principles governing their respective rights and liabilities are regulated by rules of law applicable to principal and agent. * * * ”

Seller contends that the two sentences of the “hold harmless agreement” constituted independent covenants. Thyson, attorney for Buyer, testified in this regard as follows : “Q So you agreed to hold him harmless if he would warrant that he hadn’t retained Cornet & Zeibig. That’s about the substance of it, isn’t it? A Well, I agreed to his first sentence if he’d take my second.” Grossman, attorney for Seller, testified as follows: “I gather he did that and I had some more conversations by telephone — or in person, having met Mr. Thyson in the building on the way in or out, and this went on for some days and finally in one of our conversations — I guess during that interval —I probably drew this first sentence. I said this was what we wanted. I think during that period Mr. Thyson by that time had drawn the second sentence because he said, ‘You want us to hold you harmless from liability to Hunstein and Cornet & Zeibig because he came in with us, but we don’t know what you’ve been doing, for all we know maybe you had some arrangement with Hunstein.’ I said, ‘no, we had no arrangement with Hunstein. We didn’t know him. We’ll be perfectly happy to give you the second sentence because we don’t know Mr. Hunstein.’

“At that time Mr. Ross did not remember any conversation with Mr. Hunstein that has been testified to here and that is why they knew they hadn’t any liability to them and we didn’t know of any liability. That is the background of the clause that went in.”

We find Seller’s contention to be without merit. The two sentences are mutually dependent. Seller is not entitled to recover against Buyer.

The judgment of the trial court is affirmed.

All concur.


author: DONNELLY, Judge. STORCKMAN, Chief Justice

text:
    STATE of Missouri, Respondent, v. Colleen MURPHY, Appellant.
    No. 51505.
    Supreme Court of Missouri, En Banc.
    June 12, 1967.
    Norman H. Anderson, Atty. Gen., Donald R. Wilson, Asst. Atty. Gen., Jefferson City, Charles V. Benanti, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Shaw, Hanks & Bornschein, by Charles M. Shaw, Clayton, for appellant.
   DONNELLY, Judge.

Appellant, Colleen Murphy, was charged by information under § 561.450, RSMo 1959, V.A.M.S., with obtaining money and property from William A. Straub, Inc., with intent to cheat and defraud, by means of a check drawn on a bank in which she knew she had no funds. She was convicted by a jury in the Circuit Court of St. Louis County, Missouri, and her punishment was assessed at thirty days in the county jail. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court.

Appellant does not question the sufficiency of the evidence. William Kohout, assistant manager of the Straub Store at 8282 Forsyth, Clayton, St. Louis County, Missouri, testified that on July 9, 1963, appellant came into the store, purchased some merchandise, wrote a check for $30, presented it to Kohout, and he gave her the merchandise and $7.65, which was the difference between the value of the merchandise and the amount of the check.

The check bore the name of Ellen S. Murphy, 4910 Wilheusen, as maker, and was drawn on the People’s State Bank of Maplewood, Missouri. Appellant lived at that address with her parents, Raymond E. Murphy and Ellen S. Murphy. The check was returned by the bank. There was no account in the names Ellen S. Murphy or Colleen Murphy.

Appellant denied being in the store and denied writing and presenting the check to Kohout. She testified she was home sick in bed on July 9, 1963. Her parents corroborated her testimony as to alibi.

Appellant’s two defenses were that she was not the person who wrote and presented the check, and that she was home sick in bed on July 9, 1963. A review of the record compels the conclusion that appellant relied almost wholly on a theory of defense that she was erroneously identified as the person guilty of the offense.

The Court refused to give appellant’s requested Instructions A, B, C, D, E, and F. Instruction F reads as follows: “The Court instructs the Jury that if after considering all of the evidence in this case you do not find and believe beyond a reasonable doubt that the Defendant, Colleen P. Murphy, is the person who presented the check mentioned in evidence to one William KohouZt of the William A. Straub Company on the 9th day of July, 1963, then you cannot convict the Defendant and it is your duty to acquit Colleen P. Murphy.”

In State v. Engberg, Mo.Sup., 377 S.W. 2d 282, at 286, we said: “[T]he rule now seems established that a defendant is ordinarily entitled to have given a correct instruction submitting the converse of the state’s main instruction; but, if the given instructions fully and fairly cover the same subject matter contained in defendant’s converse instruction, it is not prejudicial error to refuse the instruction offered.”

In State v. Fraley, 342 Mo. 442, 116 S.W.2d 17, 20, 21, we said:

“Defendants in criminal cases, if they so desire, ought in justice have the right to submit their defense to the jury in a direct way by instructions. If the defendant prepares such an instruction, correct in every respect, and asks that it be given, why should it be refused? What legal reason is there to deny him such an instruction? True, if the court of its own motion has given instructions fully covering the same subject matter as contained in the defendant’s offered instruction, a refusal to give the offered instruction would not be error. But as was said in the Tucker Case, supra, the converse clause attached to the State’s main instruction ‘did not so fairly and fully present to the jury appellant’s defense as to justify the court in refusing to give his requested instruction A.’ In civil cases defendants have the right to submit their defenses by instructions in a direct way. The rule should not be otherwise where life and liberty are at stake. We therefore rule that in all criminal cases, if a defendant offers a correct instruction as the converse of the State’s main instruction, it should be given, unless fully and fairly covered by other instructions. We rule that the practice of concluding the State’s main instruction with the following words, ‘ * * * and unless you so find you will acquit,’ or words of like import, is not a sufficient reason for refusing a correct converse instruction offered by the defendant.”

The trial court gave an alibi instruction, Instruction No. 3, which reads as follows: “The defendant in this case has interposed as a defense what is known in law as an alibi, that is, she asserts that even if the offense was committed as charged, she was, at the time of the commission thereof, at another and different place than that at which such offense was committed, and, therefore, was not and could not have been the person who committed the same. Now, in this connection, you are instructed that you should acquit the defendant unless the evidence in the case, taken as a whole, including that of alibi, establishes the defendant’s guilt beyond a reasonable doubt.”

The State contends that the above instruction fully and fairly covered the same subject matter contained in Instruction F. We do not agree. The substance of the State’s case was that appellant was in the Straub store and personally wrote and presented the check to Kohout. If appellant was not the person who wrote and presented the check to Kohout, she is not guilty. The State erroneously assumes that the alibi instruction is a converse instruction and that it encompasses both of appellant’s theories of defense. The jurors were instructed that they should acquit the appellant if they found she was, at the time of the commission of the offense, at another and different place than that at which such offense was committed. However, on the record in this case, the jury could have believed appellant was present in the store, and nevertheless have believed she did not commit the offense. The jurors were not specifically instructed that they should acquit appellant if they found she was not the person who committed the offense.

In State v. Chevlin, Mo.Sup., 284 S.W.2d 563, this Court held the defendant was entitled to have directly and affirmatively submitted the disputed issue of intent, and said at 567: “The intent with which the assault was committed was the principal disputed issue in the case. The trial court did not give an instruction directly covering the point submitted in the requested instruction which, under the facts of this case, was in effect a converse instruction of one of the essential elements of the State’s main instruction. Therefore under our consistent rulings the trial court committed reversible error in refusing to give this requested instruction based on appellant’s theory of the case.” See also State v. McWilliams, Mo.Sup., 331 S.W.2d 610, 613.

We believe appellant was entitled to submission of Instruction F in this case. Although proof of a defendant’s connection with the crime charged is not a part of the corpus delicti, State v. Smith, 354 Mo. 1088, 1095, 193 S.W.2d 499, 502, the criminal agency of the accused must be shown in order that a conviction may be had. State v. Bennett, Mo.Sup., 87 S.W.2d 159, 162; State v. Gillman, 329 Mo. 306, 312, 44 S.W.2d 146, 148; 23 C.J.S. Criminal Law § 920, pp. 644, 645. Proof of the criminal agency of a defendant is an element essential to his conviction. Proof of the criminal agency of the appellant in this case was an element essential to her conviction. If the appellant did not write and present the check to Kohout, she is not the person who committed the crime and she is not guilty. There is nothing more fundamental in the law than that the person charged with and convicted of an offense be the person who committed the offense. She had the right to an affirmative and direct submission of this defense to the jury.

It should not be inferred that a defendant in a criminal case is entitled to multiple converse instructions. In State v. Talbert, 351 Mo. 791, 174 S.W.2d 144, at 145, we said: “Appellant also complains of the refusal of what he calls his converse instructions. We shall not set them out. All overlap. Appellant was entitled to an instruction submitting the converse of the State’s main instruction if offered in proper form. Trial courts, however, are not required to submit the converse of each and every essential factual issue to the State’s case in separate instructions.”

Appellant was entitled to affirmatively converse the element of criminal agency. This was not done in the instructions given. The judgment must be reversed and the cause remanded.

Other points briefed relate to matters which will not likely recur upon another trial and need not be discussed herein.

Reversed and remanded.

All concur except STORCKMAN, C. J., who dissents in separate dissenting opinion filed.

STORCKMAN, Chief Justice

(dissenting).

The principal opinion holds it was reversible error to refuse defendant’s instruction F which in substance told the jury that if they did not find and believe beyond a reasonable doubt that the defendant “is the person who presented the check mentioned in evidence” they must acquit her.

The opinion asserts the defendant presented “two defenses” in denying that she was the person who presented the check and by her evidence that she was confined to her home by illness at the time in question. It further states that she “relied almost wholly on a theory of defense that she was erroneously identified as the person guilty of the offense.” The term “theory” does not ordinarily refer to the facts established by the evidence, but to a cause of action or defense. State ex rel. Brotherhood of Locomotive Firemen, etc. v. Shain, 343 Mo. 666, 123 S.W.2d 1, 4 [4],

As we see it, the defendant’s only “theory ■of defense” was that she was not the criminal agent, and that theory is fairly and fully presented by her alibi instruction, No. 3, which is set out in the opinion. In explaining the defense, the instruction states that “even if the offense was committed as charged, she was, at the time of the commission thereof, at another and different place than that at which such offense was committed, and, therefore, was not and could not have been the person who committed the same. Now, in this connection, you are instructed that you should acquit the defendant unless the evidence in the case, taken as a whole, including that of alibi, establishes the defendant’s guilt beyond a reasonable doubt.” Italics added.

The clause that she “was not and could not have been the person who committed” the offense comprehends the theory of defense contained in instruction F that she was not “the person who presented the check.” Furthermore, the direction in instruction No. 3 to acquit her unless the evidence, taken as a whole, including that of alibi, establishes the defendant’s guilt beyond a reasonable doubt adequately covers all that could be included in instruction F. An alibi instruction goes to the very heart of the defense of criminal agency. State v. Beishir, Mo., 332 S.W.2d 898, 902-903 [5].

Instruction F was primarily an attack on the credibility of the evidence in support of a phase of the state’s case and did not present any new or different theory of defense; hence, the trial court did not err in refusing it because the instructions given fully and fairly covered the entire subject matter. State v. Engberg, Mo., 377 S.W.2d 282, 286 [11], 287 [12]; State v. Worten, Mo., 263 S.W. 124, 126 [4].

Furthermore, instruction F tends to emphasize and comment on a particular part of the evidence on a necessary element of the state’s case so as to cast doubt on its credibility thereby rendering the instruction improper. State v. Higginbotham, 335 Mo. 102, 72 S.W.2d 65, 68 [2].

For these reasons I respectfully dissent.


author: EAGER, Judge.

text:
    STATE of Missouri, Respondent, v. Donald Dale HOLT, Appellant.
    No. 52444.
    Supreme Court of Missouri, Division No. 2.
    June 12, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Charles G. Hyler, Sp. Asst. Atty. Gen., Farmington, for respondent.
    Henry W. Westbrooke, Jr., Springfield, for appellant.
   EAGER, Judge.

Defendant was convicted by a jury of the offense of possessing an “apparatus, device or instrument for the unauthorized use of narcotic drugs,” as proscribed by § 195.020, RSMo 1959, V.A.M.S. (to which revision all statutory references will refer). The Court found that defendant had previously been convicted, sentenced and imprisoned for a felony and sentenced him to imprisonment for a term of five years.

On this appeal, prosecuted by diligent and effective appointed counsel, three points are made, namely: (1) that defendant’s arrest was illegal, that the search which resulted in the seizure of certain articles was unreasonable and void and that the evidence so taken should have been suppressed; (2) that assignments of defendant’s amended motion for a new trial contesting the admission in evidence of the fruits of that search should have been sustained ; and (3) that a mistrial should have been granted because of the prejudicial, voluntary statement of a witness. There is no contention that the evidence, as received, was not sufficient to support a conviction.

On December 29, 1966, at approximately 9:30 a. m., two officers of the Springfield Police Department arrested defendant and Jacqueline McDaris (consistently referred to as “Jackie”) at her apartment on the second floor of a building at 1030 North Main; Detectives James Kitchell and Charles Green were the officers involved. Defendant was arrested on suspicion of tampering with a motor vehicle, although Kitchell also wanted to talk to him about his possible possession of a key to the city parking meters. Jackie had rented the apartment about December 5, and had paid all the rent; defendant had nothing to do with the rental or the rent. He apparently stayed there with her, but kept no clothes there; he had bought some groceries, and he had known Jackie for about eight or nine months. The domestic status of Jackie is not fully described; she was 18 years old, had a baby three or four months old, and the baby was in the apartment at the time in question. When Kitch-ell knocked on the apartment door noises were heard inside and, in perhaps two or three minutes, Jackie opened the door and let the officers in; the apartment consisted of two rooms, a combination bedroom and living room and a kitchen, with only one entrance. Defendant was sitting at the kitchen table, barefooted, wearing a pair of blue jeans and no shirt. Both defendant and Jackie were told that they were under arrest and that the apartment would be searched; defendant began arguing so violently that he was taken downstairs and left in a police car with one of the two additional officers who were then summoned. The two original officers and one of the additional ones then searched the apartment, with no objection whatever from Jackie.

They found various things, which we shall not designate by exhibit numbers; all were very specifically identified at the trial, by one or more of the officers. These things included: 10 paregoric bottles (1 or 2 oz.), most or all of which were found in the trash sacks in the kitchen; some small brownish wads of cotton which had been used for some purpose; a box of cotton; an eyedropper (with the extreme tip broken off) ; a glass tube which was obviously the cylinder of a smaller eyedropper, without the rubber bulb; the needle part of a hypodermic syringe, including a rather substantial metal head or base; this base was hollow and the end of either eyedropper could be inserted into it; a very fine wire was found with the needle apparently inserted in it. A straightened hairpin was also found inside the box of cotton. The needle and eyedropper were found behind some linoleum or oilcloth tacked on the wall over the kitchen counter; the glass cylinder was found in a trash sack. There was a little fluid in three or four of the paregoric bottles. At police headquarters Detective Kitchell noted various red “dots” on the inner side of defendant’s forearms, perhaps ten or more on each arm; these were described as about the size of a pinhead.

At the trial the officers testified in detail to the finding and marking of these articles. They were all introduced in evidence. Upon the offer of each and all of the following articles, counsel for defendant stated affirmatively that he had no objection: the box of cotton; the hairpin; the small glass cylinder (part of an eyedropper) ; the 10 paregoric bottles; and the group of used wads or balls of cotton. When the hypodermic needle and the fine wire in it were offered, counsel objected on the ground that it was a “multiple” exhibit and that the information only charged possession of a “needle” and not a hypodermic needle. That objection was overruled. He objected to the offer of the eyedropper upon the supposed ground of insufficient identification only, and this was overruled. No objection was made to either of these or to any other exhibit on the ground that it or they were obtained as the result of an unreasonable or unlawful search. The only objection of that general nature was made to Detective Kitchell’s testimony concerning his observation of the red spots on defendant’s arms, namely, that any such investigation was not made pursuant to a lawful arrest. That evidence, however, concerned only the officer’s observation of defendant’s arms when they were visible to him, and no statement of defendant or property of defendant was involved.

Jackie McDaris testified: that she alone had rented the apartment and paid the rent; that defendant had stayed there with her since about December 5, and apparently at a previous apartment also; that he kept no clothes there; that she made no objection to the search; that she knew the articles here in question were in the apartment, but did not know their exact locations; that she had known defendant for eight or nine months and had seen him use these things at least 15 or 20 times, partly at a different location. She described the method as follows: defendant would boil the paregoric in a pan for a few minutes, pour the remaining liquid on cotton in another small pan, then withdraw it “through the cotton” with the eyedropper; the needle was then inserted into defendant’s arm and the eyedropper inserted into the opening in the base of the needle (before or after the insertion of the needle) thus injecting the fluid, she said, into the veins near the elbow. Jackie testified that she had talked with defendant and tried to get him to stop this, and that he had at one time broken up the needles, eyedroppers, etc., but had later resumed the practice. She had bought two or three bottles of paregoric for him at his request. Defendant had given himself such an injection on the night before his arrest.

A well qualified chemist, R. G. Taylor, analyzed material taken from four of the paregoric bottles, each separately; he testified that each sample contained morphine, which is an alkaloid of opium. He also described how the solvent, alcohol, could be readily boiled out of the paregoric, the camphor filtered out through cotton, and the needle and an eyedropper (with a little cotton padding at the connection) used to inject the resulting fluid. We note here that under § 195.010(25) and (17) morphine is a narcotic.

The defendant did not move, orally or in writing, for a judgment of acquittal; he was obviously represented at the trial by privately employed counsel, for no appointment of trial counsel is shown.

Defendant’s present counsel has filed a motion here asking that we consider, as a part of our record, two affidavits attached to that motion. We decline to do so. The sole purport of these is that defendant’s trial counsel claims that he, in a discussion with the Court and the Assistant Prosecutor at the beginning of the trial, asked the Court to suppress the evidence taken in the search and that the Court declined to do so because defendant had no possessory interest in the apartment. The Assistant Prosecutor did not recall “any written or verbal motion to suppress.” For the reasons hereinafter stated, the affidavits would not change our result, but we decline to expand the actual transcript by any reliance upon more or less vague affidavits which, in turn, depend upon the memory of past events rather than a real record. Hendershot v. Minich, Mo., 297 S.W.2d 403, 410, and sundry cases there cited.

We have held uniformly that the contention of an unlawful search and seizure should be raised by motion to suppress the evidence, in advance of trial. State v. Garrison, Mo., 305 S.W.2d 447, 451; State v. O’Brien, Mo., 252 S.W.2d 357, 359, certiorari denied 345 U.S. 929, 73 S.Ct. 790, 97 L.Ed. 1359; State v. Martin, 357 Mo. 368, 208 S.W.2d 203; State v. Lord, Mo., 286 S.W.2d 737; State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878; State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938; State v. Lee, Mo., 233 S.W.2d 666. Thus, at the trial the Court only determines whether the confiscated evidence is competent and relevant, the constitutional objections having already been ruled. Hepperman, supra, 162 S.W.2d at loc. cit. 887, and other cases just cited; or, as said in State v. Dalton, Mo., 23 S.W.2d 1, the validity of the search and the admissibility of its fruits raises a collateral issue “which must be tried in a proceeding independent of the issue of guilt.” The only stated exception lies “possibly” in those cases where the defendant “had no reason to anticipate the evidence would be introduced and was surprised”, O’Brien, supra, 252 S.W.2d loc. cit. 359. There is no contention or indication that any such situation existed here, and the record fairly shows the contrary. Not only must defendant file a motion to suppress the controverted evidence, but he has the burden of presenting evidence to sustain his contentions. Criminal Rule 33.03(5), V.A.M.R.; State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878, 887; State v. Jonas, Mo., 260 S.W.2d 3. In Hepperman, the Court said, at loc. cit. 887: “Not only is the legality of a seizure properly determined by a motion to suppress the evidence but the burden is on the defendant to offer evidence and affirmatively demonstrate the illegality of the search and seizure. The motion does not prove itself. 20 Am.Jur., Sec. 396, pp. 357, 358; State v. Berry, Mo.Sup., 253 S.W. 712.” Here, even if we considered the affidavits tendered, the fact remains that defendant offered no evidence upon any motion to suppress.

Moreover, the affirmative statements of “no objection” when all but two of the now controverted exhibits were offered, constituted a waiver of any and all contentions that they had been illegally obtained. We have discussed this point at the current term in the case of State v. Holbert, Mo., 416 S.W.2d 129, and so held, citing Hepperman, supra. We further hold now, as already indicated in Holbert, that the objection to the hypodermic needle and eyedropper on grounds wholly unrelated to the contention of an unlawful search, was also a waiver of that contention as to them. We have thus seen that at no time, as shown by our record, did the defendant even ask the Court to rule upon his present contentions until the amended motion for a new trial was filed; that was far too late. Under these circumstances we need not consider the alleged insufficiency of the knowledge or information upon which the officers relied in making the arrest, and whether, as defendant now contends, it furnished them with probable cause. All points made concerning the arrest and search and the admission in evidence of the ‘fruits of the search are denied. Our denial is not based upon the failure of defendant to raise these questions in a timely motion for a new trial. We have considered them here because constitutional issues are thus raised regarding the search. See State v. Beasley, Mo., 404 S.W.2d 689; State v. Rapp, Mo., 412 S.W.2d 120. What we have ruled is that there was no error, under Rule 27.20(c) or otherwise, because the defendant affirmatively waived at the trial all the contentions he now makes concerning an illegal search and seizure, and because these contentions were not presented and proven upon a motion to suppress the evidence. Neither a defendant nor his counsel may, as a matter of strategy, take one position at the trial and a contrary position after a jury has found the defendant guilty.

One further point has been briefed. When Jackie McDaris was testifying she was asked (by the State) how many times she had seen defendant “go through this operation ?” Her answer then was: “Well, just once before, that’s the first time he was arrested for it.” Disregarding a misapprehension or the conflict between that answer and her other testimony regarding the number of times, the point was made that her voluntary statement concerning the arrest was improper and a mistrial was requested. This was denied, but the Court then instructed the jury to disregard the “voluntary statement.” The motion for a mistrial was reviewed at the close of the evidence, it was considered at length and again denied. We cannot consider the point here, for there was no timely motion for a new trial. The verdict was returned on March 16, 1966, and the motion for new trial was filed on April 5, 1966, with an “amended” motion filed on April 14, 1966. See Criminal Rule 27.20. The transcript shows no extension of time under that rule for the filing of such motion; as a precaution we have inquired of the circuit clerk and he has found no such extension. The point is, therefore, denied. We note here, however, that in this ruling we do not in any sense infer that the trial court was in error.

We shall consider briefly the information, it being one of those matters which we consider under Rule 28.02 without assignment of error. Defendant was charged therein with the possession of a “needle” rather than a hypodermic needle, but this, along with the eyedropper, straight hairpin and cotton were specifically described as an “apparatus, device or instrument for the unauthorized use of narcotic drugs * * Under the circumstances there could have been no misapprehension on the part of defendant or his counsel, for the true purport of the charge sufficiently-appeared. We find no error in the other parts of the record which we examine under Rule 28.02.

The judgment is affirmed.

All of the Judges concur.