author:
CRIST, Judge.
      McMILLIAN, Judge,

text:
    STATE of Missouri, Plaintiff-Respondent, v. Calvin BRONAUGH, Defendant-Appellant.
    No. 39448.
    Missouri Court of Appeals, St. Louis District, Division 1.
    Sept. 12, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 13, 1978.
    Application to Transfer Denied Nov. 6, 1978.

      J. Martin Hadiean, Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen. and Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty. and Robert G. Callahan, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   CRIST, Judge.

Defendant appeals his conviction of robbery in the first degree by means of a dangerous and deadly weapon and carrying a concealed weapon. He does not challenge the sufficiency of the evidence.

Defendant raises two points on appeal. He contends that certain statements made by the prosecutor in final argument constitute an impermissible reference to the defendant’s failure to testify and an impermissible reference to the failure of defendant to produce evidence of his good character. We disagree.

The defendant did not testify at the trial. At defendant’s request the trial court gave the following instruction to the jury:

“Under the law, a defendant has the right not to testify. No presumption of guilt may be raised and no inference of any kind may be raised from the fact that the defendant did not testify.”

The prosecutor made the following remarks during his closing argument:

“Its not easy to serve as a juror on a criminal case when you come down to this point cause in exactly forty minutes the case is going to be given to you twelve citizens to make a judgment. But, this is your guide here (indicating). You’re not sitting as judges in one sense. You’re not to judge Calvin Bronaugh as an individual cause you haven’t heard any evidence. You haven’t heard anything to permit you to judge him as a human being.”

Defendant’s counsel made timely objection that such statements called the jury’s attention to the fact that ,the defendant, Calvin Bronaugh did not testify.

The foregoing statements of the prosecutor did not violate defendant’s federally guaranteed rights of not testifying under the Fifth Amendment to the Constitution of the United States, nor were they violative of Sec. 546.270, V.A.M.S. (Supreme Court Rule 26.08, V.A.M.R.). State v. Hutchinson, 458 S.W.2d 553 (Mo. banc 1970). The statements did not amount to either a direct or indirect reference. Eichelberger v. State, 524 S.W.2d 890 (Mo. App.1975). Even if the statements can be considered an indirect reference to defendant’s failure to testify, the giving of the above quoted instruction would render any error harmless.

Defendant further claims that the above quoted remarks of the prosecutor were an impermissible reference to the failure of defendant to produce evidence of his good character. No such trial objection was raised by defendant, nor was this contention contained in his motion for a new trial. A study of the record, briefs and cases cited revealed that no miscarriage of justice would result in declining to review defendant’s second point under plain error Rule 27.20(c). State v. Toney, 537 S.W.2d 586 (Mo.App.1976). Accordingly, this second point is ruled against the defendant.

Judgment of conviction affirmed.

SMITH, P. J., concurs.

McMILLIAN, J., dissents in separate opinion.

McMILLIAN, Judge,

dissenting.

I respectfully dissent. I am unable to agree with the majority opinion because I believe the prosecutor’s statement in closing argument was an impermissible reference to appellant Bronaugh’s failure to testify. While the prosecutor’s statement does not fall within the prohibition of the “direct and certain reference” test, e. g., State v. McNeal, 517 S.W.2d 187 (Mo.App.1974), in my opinion this remark does fall within the parameters of the “indirect reference” test because the words, in context, were reasonably likely to direct the jury’s attention to the fact that appellant did not testify. E. g., State v. Shields, 391 S.W.2d 909, 913 (Mo.1965); State v. Eichelberger, 524 S.W.2d 890, 894 (Mo.App.1975). I distinguish Eichelberger, in which three witnesses testified although the defendant did not, from the present case in which appellant presented no evidence at all. Any prosecutor’s remark in the present case could only reasonably have been taken to refer to appellant’s silence. This observation applies in particular to the last challenged sentence of the prosecutor’s comments insofar as this sentence implies the lack of any personal statement by appellant. Such a reference is exactly that which is prohibited by our constitution and statutes.

Moreover, I am unpersuaded by the state’s argument that the prosecutor’s comments constituted only a reference to the failure of appellant to offer evidence. See, e. g., State v. Pruitt, 479 S.W.2d 785, 789-90 (Mo. banc 1972); State v. Sechrest, 485 S.W.2d 96, 98 (Mo.1972). Nor do I agree that the prosecutor’s remarks in the present case were so ambiguous as were reasonably capable of a meaning other than that which appellant argues so as to eliminate any prejudicial impact. See State v. Hutchinson, 458 S.W.2d 553, 555 (Mo. banc 1970); State v. Jenkins, 516 S.W.2d 522, 528 (Mo. App.1974). Furthermore, in a case such as the present one in which the state’s case was relatively strong and appellant offered no evidence, the prosecutor’s comments were not only an impermissible reference to appellant’s constitutionally protected silence but also, in my opinion, strategically unnecessary.

I agree with the majority opinion’s treatment of appellant’s second point. Appellant may not raise this character objection for the first time on appeal or argue a different theory to support an overruled objection. See, e. g., State v. Jones, 515 S.W.2d 504, 506 (Mo.1974); State v. Harper, 553 S.W.2d 895, 897 (Mo.App.1977). Because I disagree with the majority opinion’s conclusion on the first point, however, I would reverse and remand for a new trial.

      . The state’s evidence at trial included the testimony of an eyewitness to the robbery, her positive identification of appellant as the robber at a pretrial confrontation some thirty minutes after the robbery and her identification of appellant in court, the testimony of the arresting officer about the arrest of appellant following the broadcast of appellant’s description given by the eyewitness, and certain corroborating physical evidence.
      If the majority opinion had based its affirmance upon the fact that the evidence was overwhelming and that the error was harmless, I could have concurred.


source: Caselaw Access Project

author: KELLY, Judge.

license: Public Domain

text:
    UNION ELECTRIC COMPANY, Plaintiff-Respondent, v. CUIVRE RIVER ELECTRIC COOPERATIVE, INC., Defendant-Appellant.
    No. 38933.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 12, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 13, 1978.
    Application to Transfer Denied Nov. 6, 1978.

      Stockard, Andereck, Hauck, Sharp & Evans, Eugene E. Andereck, Allen W. Baker, Jefferson City, for defendant-appellant.
    Keefe, Schlafly, Griesedieck, Ferrell, Francis X. Duda, Richard L. Adams, St. Louis, for plaintiff-respondent.
   KELLY, Judge.

The Cuivre River Electric Cooperative, Inc., a rural electric cooperative incorporated under Chapter 394 RSMo. 1969, prosecutes this appeal from a judgment of the Circuit Court of St. Charles County, Missouri, permanently enjoining it from servicing an area annexed into the City of St. Peters with electrical power and energy, except with respect to twelve members of the cooperative who were being serviced prior to January 6, 1976, the day after the annexation of the area involved became effective, and those persons accepted as members who have or will become subsequent occupants of the twelve houses or places of business actually being serviced by it on'January 6, 1976. We reverse and remand with instructions.

The respondent, plaintiff in the trial court, instituted this litigation to enjoin the appellant from building, constructing, or in any way extending an electric line into or within the City of St. Peters, Missouri, because the City of St. Peters, it alleged, had a population of more than 1500 inhabitants and was not a “rural area” as that term is defined in § 394.020(3) RSMo. 1969; the respondent alleged, therefore, the appellant had no power or authority to sell and distribute electricity therein.

The facts are that the appellant is a rural electric cooperative financed almost entirely by loans from the Rural Electrification Administration of the United States Department of Agriculture. It is a not-for-profit operation, consumer owned and operated. The respondent is a private investor owned public utility organized as a corporation under Chapter 351 RSMo. 1969 and operating under a certificate of convenience and necessity from the Missouri Public Service Commission to provide electric service to both the City of St. Peters and the County of St. Charles, including the area here in issue.

Prior to the institution of this suit both parties were servicing areas in and around the City of St. Peters, a fourth class City. On June 21,1972, the appellant entered into an Electric Service Agreement with Kodner Development Company, Inc., to provide electric service to an area of 137 acres, identified as the Cave Springs Estates. On August 18, 1972, appellant also entered into a second Electric Service Agreement to service another project, the Sunny Meadows Estates Subdivision. By these service contracts both of the parties thereto were required to comply with all present and future orders of the Missouri Public Service Commission.

On January 5,1976, the City of St. Peters annexed approximately 80 acres of unincorporated land situated’ along its eastern boundary in St. Charles County and thereby took into the City limits Plat 3 and Lot 26 of Plat 2 of the Cave Springs Estates Subdivision. Prior to the annexation, appellant was servicing three homes in Plat 3 and also a home on Lot 26 of Plat 2 of the Cave Springs Estates Subdivision. Five other homes in Plat 3 of the subdivision were completed shortly after the date of annexation. Except for these eight homes, Plat 3 of the subdivision was undeveloped.

A dispute then arose over which corporation was entitled to service those homes in Plat 3 of the Cave Springs Estates Subdivision completed after the date of the annexation. When discussions between the parties proved futile, the respondent instituted this cause of action on April 5, 1976, and obtained a Temporary Restraining Order enjoining the appellant from building, constructing, or in any way extending an electric line into the City. At the time of trial, June 15,1976, appellant was servicing eleven residences and one business in the annexed area. Of these residences, one was situated on Lot 26 of Plat 2 of the Cave Springs Estates Subdivision and four were located in Plat 3 of the same subdivision. The appellant also offered evidencé that prior to the issuance of the temporary restraining order of April 5, 1976, other homes in the area had requested service be furnished to them and that preparation for connecting service to these homes, including the installation of a transformer, had taken place.

Appellant, incorporated pursuant to the provisions of Chapter 394 RSMo. 1969, “The Rural Electric Cooperative Law,” has as its primary purpose the rendering of electric service to members of the cooperative living in a rural area not otherwise served. Missouri Public Service Co. v. Platte-Clay Elec. Co-op, 407 S.W.2d 883, 894[18] (Mo.1966). The term “rural area” is defined for the purposes of The Rural Electric Cooperative Law to mean “any area of the United States not included within the boundaries of any .city, town or village having a population in excess of fifteen hundred inhabitants, and such term shall be deemed to include both the farm and non-farm population thereof.” Section 394.-020(3) RSMo. 1969. The question for resolution then is whether, on April 6, 1976, the City of St. Peters had a population in excess of fifteen hundred inhabitants.

However, the crucial issue is, how may the population of the City of St. Peters on April 6, 1976, be ascertained?

Appellant contends that the population of St. Peters is to be determined in accordance with the provisions of § 1.100(1) RSMo. Respondent, on the other hand, contends.it is a fact issue which may be proven by other competent evidence, e. g. a field survey conducted by the Bureau of the Census, Department of Commerce, in 1976 refined and incorporated into an official publication of the Department of the Treasury utilized for the Federal Revenue Sharing entitlement purposes; the voter registration records of the City prepared in summary form by the St. Charles County Clerk from the official voter registration cards for the County of St. Charles; etc.

The trial court adopted the respondent’s argument on this Point, and in that we conclude reversible error resulted.

Section 1.100(1) RSMo. 1969 specifically provides that the population of any political subdivision of the state for the purpose of representation or other matters including the ascertainment of the salary of any county officer for any year or for the amount of fees he may retain or the amount he is allowed to pay for deputies and assistants is determined on the basis of the last previous decennial census of the United States effective as of July 1st of each tenth year after 1961.

The General Assembly in enacting Chapter 394 RSMo. 1969 and authorizing the organization of rural electric cooperatives in cities having a population of less than 1500 inhabitants did not provide therein the method for determining the population for the purposes of the Act. We must look elsewhere for a method whereby a city’s population may be determined when a rural electric cooperative may no longer serve an area by reason of the fact it ceases to be a “rural area” within the meaning of the Law.

It is apparent that § 1.100(1) RSMo. 1969 does not definitively require among the purposes enumerated therein, the use of the decennial census in eases of this kind. However, in addition to representation, and the ascertainment of salaries and fees of county officers and the pay allowed for deputies and assistants, specifically mentioned, it does make it mandatory to use the decennial census to determine the question of population of any political subdivision of the state in “other matters.”

Respondent argues that inasmuch as the word “including” follows “other matters,” and then specifies the “other matters” referred to therein, the term “including” is used in a restrictive sense as a word of limitation and not as one of enlargement. Thus, respondent contends, § 1.100(1) RSMo. 1969 is not controlling here and other evidence of population is admissible on that issue.

Respondent relies on State v. Sho-Me Power Co-op, 354 Mo. 892, 191 S.W.2d 971, 977[2] (banc 1946) and a number of cases from other jurisdictions, to support its contention in this respect. The cases leave little doubt that the term “including” is ambiguous, and its meaning may vary according to the context of the statute in which it appears. St. Louis County v. State Highway Commission, 409 S.W.2d 149, 152[5] (Mo.1966). Ordinarily, however, it is not a word of limitation, but rather, one of enlargement. St. Louis County v. State Highway Commission, supra. From a reading of the cases cited by both the respondent and the appellant in support of their contradictory positions, we have concluded that in most instances the term “including” is one of enlargement and we hold that it was so used in this statute for reasons more fully explored hereinafter.

Respondent further contends that the statute is not applicable to the facts of this case because the determination of the population of an area to ascertain if it has ceased to be a “rural area,” as that term is defined in § 394.020(3) RSMo. 1969, is not among the “other matters” referred to in § 1.100 RSMo. 1969.

To support this contention, respondent argues that the words “other matters” are ambiguous in the context of the statute and are limited to those “matters” of the same or similar kind enumerated immediately following the term, i. e. (1) the ascertainment of the salary of a county officer for any year, (2) the amount of fees a county officer may retain, or (3) the amount a county officer may pay for deputies and assistants.

We agree with respondent that the term “other matters” is ambiguous. The word “other” has been defined as “ ‘different and distinct from that already mentioned’.” Missouri Pacific Railroad Company v. Campbell, 502 S.W.2d 354, 358 (Mo.1973); Black’s Law Dictionary, 4th Ed. “Matters” has many meanings. We shall not attempt to set them out herein, but shall resort to decisional law of the appellate courts of this state to discern whether they have applied the restricted construction of the terms “other matters” contended for by the respondent in cases where the statute came into play.

The word “population,” is defined as “the whole number of people or inhabitants occupying a specific geographical locality,” Webster’s Third New International Dictionary. When the word has been employed for the purpose of classification in legislative enactments, the method for determining population has generally been a legal census.

A “census” is an official enumeration of the inhabitants with details of sex, age, family, etc., and the public record thereof; it is not merely a sum total, but an official list containing the names of all of the inhabitants. State ex rel Ryan v. Wooten, 139 Mo.App. 221, 122 S.W. 1101, 1103[4] (1909). A “census” is not an estimate of the population. State ex rel. Reynolds v. Jost, 265 Mo. 51, 175 S.W. 591, 597[5] Ann. Cas. 1917D, 1102 (1915).

Section 1.100(1), as it now exists, is the result of a legislative revision which took place in 1949, and resulted in the consolidation of §§ 654 and 13430 RSMo. 1939. Section 654, RSMo. 1939, read as follows:

“All matters to be based on United States census. — All representation or other matters heretofore or now based on the state census shall be based on the United States census of this state.”

Section 13430, RSMo. 1939 read as follows:

“Last decennial census to determine population — The last previous decennial census of the United States shall be the basis for determining the population of any county in this state for the purpose of ascertaining the salary of any county officer for any year, or the amount of fees he may retain, or the amount he shall be allowed to pay for deputies or assistants.”

Simultaneously, the legislature repealed § 2495 RSMo. 1939 because the salaries to be paid to judges of county courts, based upon the population of the county they served, was adequately covered by the newly enacted statute.

It was under these circumstances that the term “other matters” was retained in the new statute, § 1.100(1).

Although the Rural Electric Cooperative Law limits the formation of cooperative, nonprofit, membership electric corporations for the purpose of supplying electric energy and promoting and extending the use thereof in rural areas, § 394.030 RSMo. 1969, and the term “rural area” is defined by § 394.-020(3) RSMo. 1969, in terms of population, nowhere in Chapter 394 has the legislature made specific provision for the method to be employed in determining when the population of the area being serviced by a cooperative ceases to be a “rural area” by reason of increase in population or annexation into a city with a population in excess of 1500 inhabitants, so that the cooperative’s rights to service the area are curtailed or restricted pursuant to the provisions of § 394.080(4) RSMo. 1969.

In a number of cases where change in population triggered changes in representation, in the amount of salaries to be paid public officials, in number of deputies to be hired, etc., and no. specific method was legislated for the determination of the population, resort has been had to either former §§ 654 or 13430, and their predecessors, to ascertain the population of a political subdivision of this state.

In Hardin v. Jefferson County, 347 Mo. 410, 147 S.W.2d 643 (1941) the question before the court was whether the judges of the county court in Jefferson County constituted a Board of Overseers under § 7892 RSMo. 1929, and whether they did depended upon whether the county had a population of not less than 50,000 nor more than 200,000 inhabitants. Because the legislature provided no special statutory method to determine the population of a county under § 7892, the court relied on § 654 RSMo. 1929, and said, 147 S.W.2d 644, l.c. 644[1]:

“Absent such a method, the question of population is fixed by the last decennial census, . . . ”

In Reals v. Courson, 349 Mo. 1193, 164 S.W.2d 306[5] (1942), a group of resident tax payers instituted a suit against the secretary and the members of the Board of Education and the School District of University City for the purpose of enjoining them from holding an election to test the wishes of the District’s voters as to whether they desired to authorize an additional bonded indebtedness to borrow money and issue bonds for the purpose of providing further funds for general school purposes. The question before the court was the constitutionality of the statutes authorizing the Boards of Directors of School Districts formed of cities and towns in counties having more than 200,000 and less than 450,000 inhabitants to increase the bonded indebtedness of the school district. The grounds for the attack against the statute were that it was a special law in violation of Article IV, Section 53(2X19)(32) Mo.R.S.A. This Act, enacted by the Sixty-first General Assembly in 1941, provided, in the final section thereof, that the provisions of the Act would expire on January 1, 1946. On the basis of this provision the court concluded the Act to be unconstitutional. The reasoning of the court, 164 S.W.2d l.c. 309, was that since the Act itself made no provision for determining the population of a district or county and the class could therefore be determined only by the United States census for 1940, it was conclusively demonstrated that no district other than the School District of University City could ever come within the provisions of the Act. The court quoted from Hardin v. Jefferson County, supra, the holding that in the absence of a method for the determination of population in the Act itself, where population is the basis for classification, the method to be resorted to was that required by § 654 RSMo. 1939, i. e. the last national decennial census.

We hold, therefore, that the term “other matters,” as used in § 1.100(1) RSMo. 1969, is not restricted to those matters specifically enumerated after the word “including.”

We further hold that the last decennial census is the exclusive method to be employed in the determination of the population of the City of St. Peters in this case and the other evidence of population offered by the respondent and admitted into evidence by the trial court was not, in this case, competent evidence of population.

The respondent argues that the last decennial census is not the exclusive method for proving population. It takes approximately the same position the appellants in Reals v. Courson, supra, did, i. e. that since no provision was made for the method of determining the population, the population of the City might be established in any authentic manner, and the decennial census merely furnishes evidence of the fact of population.

The power of the legislature to prescribe the evidence by which the population of the cities of this state should be determined was recognized in Dunne v. Kansas City Cable Ry. Co., 131 Mo. 1, 32 S.W. 641, 643 (1895). It was also recognized by the court in that case that the last decennial census was a proper vehicle for the determination of population of a city, and the impracticability of determination of population by judicial investigation if insisted upon every time a jury was impaneled was pointed out.

Since 1889, when the law providing for the taking of a state census was repealed, the United States census has been made the basis for categorization by population in the legislative enactments of the General Assembly of Missouri. The reason for employing the national census as the gauge of population is definiteness, trustworthiness, and accuracy, and the fact that it is taken every ten years. Dunne v. Kansas City Cable Ry. Co., supra.

Because of the accuracy of the national decennial census it is, except where otherwise specifically provided, the method for the determination of population of cities in this state. Reals v. Courson, supra. The Supreme Court of Missouri in City of Bridgeton v. Gilstrap, 463 S.W.2d 908 (banc 1971), a declaratory judgment proceeding to resolve a dispute between St. Louis County and several of the ninety-seven municipalities situate therein over the allocation of revenue from a county cigarette tax, was confronted with the issue of what population figures should be employed.

The question in City of Bridgeton was whether the tax revenues were to be allocated solely on the basis of decennial census population figures, or on the basis of population figures shown by special municipal censuses taken pursuant to § 71.160 through § 71.180 RSMo. 1969.

The statutes authorizing the cigarette tax and providing for its allocation, §§ 66.340 and 66.350(2), Laws 1967, did not designate the census upon which the population formula should be determined. The court held that it was the federal decennial census, or the latest census that determined the total population of the county and all of the political subdivision therein, which was the basis for the formula for distribution of the tax revenues. In doing so the court reasoned, l.c. 914:

“Common sense makes it self-evident that recognition of population changes must be on a periodic basis. We cannot believe that the legislature intended to set the stage for competitive special census taking by ninety-seven (97) governmental units, which could not only dissipate the tax revenue received, but also destroy any chance of budgetary planning and continuity of service to those paying the tax.”

We believe, that although we are not confronted here with the identical competing interests present in the City of Bridge-ton case, the case before us for decision possesses some of the same inherent problems of competition presented therein. In ascertaining how the population of cities, towns and villages must be determined in a case of this kind one need only read the litigation fomented between Missouri Public Service Company and the Platte-Clay Electric Cooperative, Inc. to appreciate the potential litigation which could result when the forty-three rural electric cooperatives of the state find their areas of service threatened by annexation into any city, town or village where the question is whether said city, town or village has a population in excess of fifteen hundred inhabitants. We do not believe the legislature intended the result which would follow should we hold that the population of the City of St. Peters could be established in any way other than by an official census. Evidence of any other kind does not supply the certitude necessary to establish population where classification by population is employed in enactments by legislative bodies.

While it may be that the population of a particular community has increased greatly since the last taking of the decennial census, nevertheless, some definite period must be agreed upon for the determination of the question; otherwise, there would be endless confusion. As a result, it has been uniformly held that changes in classification upon the basis of population are not permissible until there has been a legal ascertainment thereof. In recognition of this principle, the legislature has made provision for updating population between the national decennial census by enactment of §§ 71.160 and 71.170 RSMo. 1969, authorizing a special census, and §§ 81.010 and 81.030 RSMo. 1969, authorizing special charter cities and towns to take a census for the purpose of a change of classification. A census taken under either of these statutes has the force and effect of a state or national census and becomes the legal census and population of the city or town for all purposes. Neither of these censuses has been taken so far as we can learn from the record on appeal.

Having decided that the exclusive method for proof of population in this case was the last United States decennial census, that enumeration made in 1970, we find from this record that the trial court, as it could pursuant to the provisions of § 490.-700 RSMo. 1969, took judicial notice that the population of the City of St. Peters is 518 inhabitants.

In the absence of any legal census rebutting this evidence, we hold that the trial court’s judgment that “the Municipality of St. Peters/ Missouri, on April 6, 1976, had a population in excess of one thousand five hundred (1,500) inhabitants” is not supported by any substantial evidence, it erroneously declares the law with respect to the method by which the population of the municipality must be determined under the facts of this case, and it erroneously applies the law. We are of the firm belief that under the facts and the law the judgment is wrong. Murphy v. Carron, 536 S.W.2d 30, 32[1-3] (Mo. banc 1976).

For the foregoing reasons we reverse the judgment of the trial court and remand the cause thereto with directions for it to enter an order setting aside and holding for naught its judgment. We further direct that the injunction directed against the appellant and heretofore entered, be set aside and for naught held, and that a new judgment be entered dismissing respondent’s petition and entering judgment for the appellant.

GUNN, P. J., and WEIER, J., concur.

      . Our examination of the record on appeal causes us to conclude that it is clear that portions of the Cave Springs Estates Subdivision and Lot 26 of Plat 2 of said Subdivision were annexed; while the respondent claims that Plats 3 and 4 of the Subdivision were annexed as well as Sunny Meadows Estates Subdivision. The City Engineer, Mr. Pickett, respondent’s witness, testified, however, that there was no recorded Plat 4 of Cave Springs Estates Subdivision. Respondent, in its brief, states that although the relationship of Sunny Meadows Estates Subdivision to this action is obscure, it may be that a portion of the Cave Springs Estates Subdivision was subsequently subdivided to become Sunny Meadows Estates Subdivision. However, the citations to the transcript to support this interpretation do not bear this out. Nevertheless, we believe that the uncertainty surrounding Plat 4 of Cave Springs Estates Subdivision and Sunny Meadows Estates Subdivision is not crucial to the result reached here, due to the fact that the principal dispute centers on Plat 3 of Cave Springs Estates Subdivision, a relatively undeveloped plot of land at the time of annexation.

      . Section 1.100. POPULATION, HOW DETERMINED
      1. The population of any political subdivision of the state for the purpose of representation or other matters including the ascertainment of the salary of any county officer for any year or for the amount of fees he may retain or the amount he is allowed to pay for deputies and assistants is determined on the basis of the last previous decennial census of the United States. For the purposes of this section the effective date of the 1960 decennial census of the United States is July 1, 1961, and the effective date of each succeeding decennial census of the United States is July first of each tenth year after 1961; except that for the purposes of ascertaining the salary of any county officer for any year or for the amount of fees he may retain or the amount he is allowed to pay for deputies and assistants the effective date of the 1960 decennial census of the United States is January 1, 1961, and the effective date of each succeeding decennial census is January first of each tenth year after 1961.

      . Section 394.080(4) provides that when an area ceases to be rural by reason of increase in population or annexations into a city with a population in excess of 1500 inhabitants, the cooperative may continue servicing the area until such time as the municipality, or the holder of a franchise to furnish electricity in the municipality purchases the physical property of the cooperative located in the area. The cooperative may not, however, once the population limits have been exceeded, extend service to owners of homes and businesses built after annexation on lots purchased from pre-annexation members who had subdivided their original land holding. Missouri Public Service Co. v. Platte-Clay Elec. Co-op, 407 S.W.2d 883, 893[19] (Mo. 1966).

      . There is no evidence in this case that the City of St. Peters had a special census authorized by § 71.160 RSMo. 1969, and there was no contention by either of the parties that the census authorized by § 81.020 RSMo. 1969, is applicable to this case; nor do we rule on the question whether any legally authorized census taken post-annexation of the recently annexed area could be employed to determine the population. There is no evidence in this case of such a census.

      . See: 532 S.W.2d 800 (Mo.App.), 435 S.W.2d 350 (Mo.) and 407 S.W.2d 883 (Mo.).


author: STEWART, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Appellant, v. Harvey D. SHELL, Defendant-Respondent.
    No. 39236.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 12, 1978.

      Lawrence E. Mooney and James E. Busch, Clayton, for plaintiff-appellant.
    Alan G. Kimbrell, St. Louis, for defendant-respondent.
   STEWART, Presiding Judge.

Harvey Shell, defendant, was charged by information with appearing before an agency for which he was formerly employed in violation of RSMo. § 105.480, a conflict of interest statute. A jury in the magistrate court found defendant guilty and fixed a fine of $50. Defendant appealed to the circuit court from the judgment entered upon the verdict. The circuit court sustained Shell’s motion to dismiss the information against him on the ground that it was duplicitous. We reverse and remand.

RSMo. § 105.480, subsection 1, the conflict of interest statute, provides:

“No person who has served as an officer or employee of an agency shall within a period of two years after the termination of the service or employment appear before the agency or receive compensation for any services rendered on behalf of any person, firm, corporation or association in relation to any case, proceeding or application with respect to which the person was directly concerned and in which he personally participated during the period of his service or employment.”

The information filed in magistrate court alleged that defendant, a former employee of the Missouri Air Conservation Commission,

“did willfully and unlawfully, in the County of St. Louis, Missouri, on or about November 19, 1975, within a period of two years after the termination of his employment, appear before the agency on behalf of the City of Columbia, Missouri . in relation to a case or proceeding with respect to which he was directly concerned and in which he personally participated during the period of his employment . . . .”

The State contends that the information is not duplicitous by reason of the use of the words “case or proceeding” because the words are virtually synonymous.

Duplicity is generally defined as the fault of charging two or more offenses in one count of an information or indictment. State v. Thomas, 360 S.W.2d 694 (Mo.1962). It has been said that where a statute sets forth different acts or offenses in the disjunctive the formal charge should be in the conjunctive. However, where the words joined by the disjunctive are synonymous or where the words while not precisely synonymous have common elements, a disjunctive statement is not in itself fatal to the information or indictment. State v. Virdure, 371 S.W.2d 196, 199 (Mo.1963); State v. Reask, 409 S.W.2d 76 (Mo.1966).

The focus of our consideration is the phrase “case or proceeding.” To place the words in proper perspective we digress to discuss defendant’s contention that the information does not charge a violation of the statute because an agency hearing is not a “case or proceeding.”

Defendant, adopting the definitions used by the State, points out that “case” is defined as “a suit or action in law or equity;” a “proceeding” is a “legal action.” The authority cited is Webster’s New Collegiate Dictionary (1975). He cites Miller v. Farmers’ Exchange Bank, 228 Mo.App. 367, 67 S.W.2d 528, 532 (1934) for a definition of “action” as “ ‘the form of a suit in a court of justice.’ ” Defendant reasons that under the above definitions an appearance before a state agency is not a “suit in a court” or a “judicial proceeding” therefore the information is fatally defective because there is no such thing as a “case or proceeding” before an agency.

Such an interpretation would give no meaning whatever to the words “case” and “proceeding” as used by the legislature. We may not take such a simplistic approach to the interpretation of a statute. While we must construe criminal statutes liberally in favor of the defendant and strictly against the State, the cardinal rule of construction is that “the intention of the lawmaker will prevail over the literal sense of the terms.” State v. Schwartzmann Service, Inc., 225 Mo.App. 577, 40 S.W.2d 479, 480 (1931). “The rule of strict construction is not violated by according the language used by the legislature its full meaning in support of the policy and aim of the enactment. The rule does not compel a narrow or forced construction, out of harmony with the manifest purpose and intent of the statute or one which would exclude cases from it that are obviously within its provisions.” State v. Ballard, 294 S.W.2d 666, 669 (Mo. App.1956). We must view the crucial words in the context of the statute and assume that the legislature did not use meaningless words. State ex rel. May Department Stores Co. v. Weinstein, 395 S.W.2d 525, 527 (Mo.App.1965).

The title of the Act is Regulation of Conflicts of Interests and Lobbying. The purpose of § 105.480, the statute under consideration, is to prevent former employees of state agencies from representing conflicting interests. “Agency” is defined by § 105.450(1) as:

“any department, office, board, commission, bureau, institution or any other agency, except the legislative and judicial branches of the state or any political subdivision thereof including counties, cities, towns, villages, school, road, drainage, sewer, levee and other special purpose districts.”

The provisions of § 105.480 as it concerns this case prohibit a former employee of the agency from appearing “before the agency ... in relation to any case, proceeding or application . . . .” “Case” and “proceeding” obviously refer to matters pending before the agency for consideration or decision and not to matters pending before a court with respect to the agency. It is the relationship of the former employee to the agency that gives rise to the conflict sought to be avoided by this statute.

It has been said that the word case “in common parlance ‘has a more extended meaning than the word suit, or action ..’ ” S. D. Warren Co. v. Fritz, 138 Me. 279, 25 A.2d 645, 648 (1942). “Case” has also been defined as “a matter for consideration or decision.” Webster’s Third New International Dictionary (1967). In addition to the definition given above before for “proceedings” it has also been defined as “a series of steps adopted for doing or accomplishing something.” Webster’s Third New International Dictionary (1967). Considering the purpose of the statute and the words in the context of that statute, “case” and “proceeding” may be said to mean matters before the state agency which call for the consideration or the decision of the agency. The information is not defective in the respect urged by defendant.

We return to the question of duplicity. In the context of this statute the word “case” and the word “proceeding” as we have interpreted the language of the statute are for all practical purposes synonymous. The connecting word “or” denotes “the synonymous, equivalent, or substitu-tive character of [the] two words.” Webster’s Third New International Dictionary (1967). The information is not duplicitous. State v. Virdure, supra; State v. Reask, supra.

Shell contends that if not duplicitous the information failed to charge an offense in that it did not allege facts from which the court could determine whether he appeared with regard to a “case or proceeding,” and that by failing to specify the case or proceeding the information would not bar his subsequent prosecution for the same offense.

The Rules provide that the information shall be a “plain, concise and definite” statement of the “essential facts” constituting the offense charged. Rule 24.01. To be sufficient an information must contain the essential elements of the offense and clearly apprise the court and defendant of what facts constitute the offense the defendant must defend against. State v. Barlett, 394 S.W.2d 434, 436 (Mo.App.1965); State v. Muchnick, 334 S.W.2d 386, 390 (Mo.App. 1960).

While not constituting a “model” document the same strictness of pleading is not required in informations charging misdemeanors as in those charging felonies. State v. McNail, 389 S.W.2d 214, 217-218 (Mo.App.1965). The information here was legally sufficient to charge an offense and did state the charge with sufficient particularity to notify Shell of what he must defend against and to bar subsequent prosecution for the same offense. The charge was limited to an appearance before a specific agency on a specific date on behalf of a specific client and only with respect to a single case or proceeding with which Shell “was directly concerned” and “personally participated” during his employment. The terms of the conflict of interest statute are neither “technical nor mysterious.” If an otherwise legally sufficient information lacks necessary detail to fully advise of the exact charge so that a defendant can prepare a defense, the proper remedy would be to file for a bill of particulars under Rule 24.03. State v. Davis, 510 S.W.2d 790, 792 (Mo.App.1974).

Shell’s contention that the statute is impermissibly vague for failing to specify standards for determining what constitutes a “case or proceeding” is not meritorious. The language is intended to be broad in scope and encompass instances in which the judgment or discretion of the agency is invoked in its official capacity. Further, all appearances before the agency are not precluded, only those in relation to matters with respect to which the former employee “was directly concerned and in which he personally participated during the period of his service or employment.” We hold that the statute conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. Cf. St. Louis County v. McBride & Son, Inc., 487 S.W.2d 878, 879 (Mo.App. 1972).

The State’s final point is that the court should not have dismissed the information as being duplicitous without giving the State an opportunity to amend. In view of the conclusion we have reached, we need not discuss this issue.

The cause is reversed and remanded to the circuit court for further proceedings.

REINHARD, J., and STEPHAN, J., concur.


author: GUNN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Walter Earl McGRAW, Appellant.
    No. 38340.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 12, 1978.

      David M. Johnson, Hayes & Heisler, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Jerry L. Short, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Presiding Judge.

Defendant Walter McGraw appeals his conviction for stealing over $50. His allegations of error are based on the admission of opinion testimony as to the value of the stolen items, refusal to instruct on stealing under $50, and the admission of identification testimony. We find no error and affirm.

As St. Louis police officer Jessie Nash was on evening patrol at Thirteenth Street and Warren Avenue, he observed two men loading tires onto a pickup truck in the Fleet Deliveries, Inc. parking lot. Officer Nash was able to observe the faces of the two men assiduously at their work. He noticed several large tires in the truck bed, and as the pickup left the lot, Officer Nash followed. He ultimately stopped the truck and ordered the occupants outside for a confrontation, at which time he was again able to see their faces clearly. The two men, later identified as defendant and his brother, were directed to return with their truck to the Fleet Deliveries lot. Upon reaching the lot, defendant leaped from the truck and fled from the scene. Officer Nash remained with the other suspect until reinforcements arrived. An assisting policeman, Officer Schrum, immediately identified the defendant’s brother as Harry “Cookie” McGraw. After hearing a general description of the escaped accomplice, Schrum stated that the escapee resembled the defendant. An all points bulletin was broadcast, both naming and describing defendant. Shortly thereafter, he was arrested in a tavern and transported back to the lot. Nash identified defendant as the man he had earlier apprehended. Defendant and several alibi witnesses testified that he was elsewhere during the incident leading to his arrest.

An investigation revealed that four truck tires and rims had been unlawfully removed and taken by defendant and his brother from a trailer under lease to Fleet Deliveries, Inc. The president of Fleet Deliveries, relying on his thirteen years experience in the trucking business and the purchase within the past three years of “a couple of hundred” tires and rims similar to those stolen, testified without objection that the value of each of the four tires and rims was $108 as used. Defendant now complains that the president of Fleet Deliveries was not qualified to testify as to the value of the stolen property. As the objection was not raised at trial, it is not preserved for review. State v. Hulsey, 557 S.W.2d 715 (Mo.App.1977); State v. Holman, 556 S.W.2d 499 (Mo.App. 1977). Moreover, defendant’s attorney cross-examined the witness in substantial detail, and we find that the witness' declaration of value did not result in any manifest injustice to defendant. State v. Sanders, 541 S.W.2d 530 (Mo. banc 1976); State v. Hatten, 561 S.W.2d 706 (Mo.App.1978). Further, in view of the witness’ experience, there is scarce ground for asserting abuse of the trial court’s discretion in admitting such testimony. See State v. Cook, 557 S.W.2d 484 (Mo.App.1977) and State v. Andrade, 534 S.W.2d 595 (Mo.App.1976), for the principle that admission of opinion testimony rests in the considerable discretion of the trial court.

Defendant next claims that the trial court erred in failing to instruct on the offense of stealing under $50. All the evidence concerning the value of the stolen property was that it greatly exceeded $50. There was no evidence to support an instruction of stealing under $50; hence, there was no error in failing to do so. State v. Burrage, 418 S.W.2d 101 (Mo.1967); State v. Thornton, 557 S.W.2d 1 (Mo.App. 1977); State v. Brame, 542 S.W.2d 591 (Mo. App.1976); State v. Matzker, 500 S.W.2d 54 (Mo.App.1973).

Defendant relies on State v. Nicholas, 222 Mo. 425, 121 S.W. 12 (1909), and State v. Enochs, 339 Mo. 953, 98 S.W.2d 685 (1936), in arguing that he should have been allowed the stealing under $50 instruction. But Nicholas is not apt, as in that case there was conflicting evidence as to whether the stolen property was worth only $10 or $15. Not so, here. Nor does Enochs apply, for it was found that “the state’s evidence in this case did not establish beyond question that the value of the stolen property was $30 or more.” State v. En-ochs, supra at 688. Here, the evidence clearly established the value of the stolen property to be substantially in excess of $50.

Finally, defendant claims that the trial court improperly admitted invalid identification testimony. Defendant argues that Officer Nash’s in-court and out of court identification testimony was irreparably tainted by Officer Schrum’s remarks about the possible identity of the escaped suspect. No motions to suppress identification testimony nor objections at its presentation were made during the trial. However, defendant relies on “plain error,” Rule 27.-20(c), to preserve the issue for the court’s consideration.

As was stated earlier, Rule 27.-20(c) will not be invoked unless the defendant demonstrates that the alleged error will result in a miscarriage of justice. State v. Sanders, supra. A consideration of the facts in this case fails to demonstrate any manifest injustice. Officer Nash observed the defendant and his accomplice three different times — twice from his patrol car, and once face-to-face. The officer made two separate identifications of defendant — at the scene of the crime, within fifteen minutes of defendant’s escape, and in court, during the course of his testimony. When a pretrial confrontation is challenged as unnecessarily suggestive, the central issue is whether, under the totality of circumstances, the identification was reliable. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). We doubt that Schrum’s statements tended to increase the probability of a misidentification, particularly since Nash had the opportunity to view defendant at close range a mere fifteen minutes before the contested confrontation. But even assuming that the comments were unnecessarily suggestive, the facts in this case indicate the identifying witness had an independent basis for his in-court identification sufficient to overcome any improper remarks. State v. Harris, -S.W.2d-, No. 39,102 (Mo.App. June 20, 1978); State v. Dickerson, 568 S.W.2d 559 (Mo.App.1978); State v. Collins, 567 S.W.2d 144 (Mo.App.1978); State v. Williams, 566 S.W.2d 841 (Mo.App.1978).

Affirmed.

KELLY and REINHARD, JJ., concur.

      . Defendant’s counsel at a later point did object to the president’s testifying as to the value of new tires. Such objection was irrelevant to the issue here.

      . At the time of State v. Enochs, supra, the statutory limit for grand larceny was $30 or more.

      . In State v. Saffold, 563 S.W.2d 127 (Mo.App. 1978), not cited by defendant, the evidence was unclear as to whether the theft was over or under $50. The victim testified that the billfold which was stolen from her contained $47, but evidence as to the value of the billfold was inconsistent. Relying on Enochs, the court held that in view of the lack of evidence as to the true value of the billfold, the jury should have been instructed on stealing under $50. But the confusion as to values existing in En-ochs and Saffold does not appear in this case.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Willie HATHORN, Appellant.
    No. 39051.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 19, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 13, 1978.
    Application to Transfer Denied Nov. 6, 1978.
    Shaw, Howlett & Schwartz, James J. Knappenberger, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Pros. Atty., Steve Goldman, Asst. Pros. Atty., Clayton, for respondent.
   CLEMENS, Presiding Judge.

Defendant Willie Hathorn was found guilty of second degree burglary and stealing (Sections 560.070, 560.110, RSMo. 1969), and of obtaining money by means of a bogus instrument, (Section 561.450, RSMo. 1969). The jury assessed punishment at ten years for burglary and a concurrent five-year term for stealing and a consecutive five-year term for obtaining money by means of a bogus instrument.

Since defendant has not challenged the sufficiency of the evidence to support his conviction, a brief factual statement will suffice. Defendant, formerly a police officer, became acquainted with Richard Berry after having arrested him for a previous burglary. Berry testified that he was approached by defendant who asked him if he could break into “Pete’s Market.” That evening Berry climbed to the roof of the market, made a hole with a crowbar thrown up to him by defendant, and entered the store. He removed two bags of coins, a money order machine, a box of blank money orders and a safe. Later Berry came to defendant’s house and saw the safe there. Defendant gave Berry some order blanks which Berry was unable to cash. Two other witnesses testified defendant gave them blank money orders, identified as having been stolen from the burglarized store. Defendant cashed one such money order at a bank.

Defendant challenges the verdict-directing instructions on burglary and stealing because each, after hypothesizing Berry’s burglarious conduct, included an MAI-CR 2.14 paragraph authorizing finding defendant guilty if he “knowingly and intentionally aided or encouraged (Richard Berry) . .” In his motion for new trial, defendant contended the court erred because each instruction “permitted the jury to find the defendant guilty of the substantive offense of burglary in the second degree by merely finding that defendant was an aider and an abettor” and “if they only find that the defendant aided or encouraged the person who actually committed the offense.”

We limit our review to the challenge raised in the motion for new trial and carried forward into defendant’s brief.

Defendant’s contention is refuted by § 556.170, RSMo. 1969, declaring: “Every person who . . . shall be an accessory to any . . . felony . . . shall, upon conviction be adjudged guilty of the offense in the same degree . . . .”

The challenged instruction was not erroneous.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.

      . Defendant was acquitted on another count of burglary and stealing.


author: SMITH, Judge.

text:
    Edward PARTON, Appellant, v. STATE of Missouri, Respondent.
    Nos. 39318, 39658.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 19, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 13, 1978.
    Application to Transfer Denied Nov. 6, 1978.

      David V. Uthoff, Nicki E. Patterson, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Stanley Robinson, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., John P. Dockery, Jr., St. Louis, for respondent.
   SMITH, Judge.

Movant appeals from the action of the trial court in dismissing without evidentiary hearing his motion for relief pursuant to Rule 27.26. Parton was convicted in 1971 of statutory rape of a six-year-old girl. The opinion of the Supreme Court on direct appeal of that conviction is found in State v. Parton, 487 S.W.2d 523 (Mo. 1972). In 1974, movant filed a motion pursuant to Rule 27.26 which was denied March 11, 1975. Opinion on appeal from that denial is found in Parton v. State, 545 S.W.2d 338 (Mo.App. 1976).

In his current motion, Parton raises the contention that he was denied his constitutional right to defend himself without counsel. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This contention was advanced on appeal from the denial of movant’s prior 27.26 motion, but not considered by this court because not raised in the trial court. Par-ton v. State, supra [1, 2]. For the same reason we do not review certain contentions raised by movant pro se, but not raised in the trial court. The trial court denied the present motion on the basis that the mov-ant could have raised this contention on his prior motion. Rule 27.26(d). Movant contends that he could not have raised the point because the constitutional principle upon which he relies was not discovered by the United States Supreme Court until Far-etta, which was handed down after his prior motion had been denied. In Bibbs v. State, 542 S.W.2d 549 (Mo.App. 1976), we held that the right of a criminal defendant to represent himself was firmly established in Missouri law long before Faretta. See Missouri Constitution, Article I, Sec. 18(a) and Rule 29.01. The challenge now made to movant’s conviction could have been made on appeal from the original conviction and in the first 27.26 motion. See State v. Burgin, 539 S.W.2d 652 (Mo.App. 1976).

Additionally, the doctrine of Faretta has been held to be prospective only. Martin v. Wyrick, 568 F.2d 583 (8th Cir. 1978). As such, it would not be available to movant.

Our careful review of Faretta has led us to further conclude that it does not hold that failure to permit a defendant to represent himself is inevitably prejudicial error requiring a new trial. See dissenting opinion of Blackmun, J., 422 U.S., l.c. 852, 95 S.Ct. 2525; United States v. Taylor, 569 F.2d 448 (7th Cir. 1978). The record here supports the legal conclusion that movant was not prejudiced by the court’s action in denying his request to represent himself.

On the day of trial, Parton asked the court to discharge the attorney appointed to represent him. The basis of this request was largely his dissatisfaction with that attorney’s experience in the criminal law field and the attorney’s failure to file a pre-trial motion challenging the qualifications of the victim to testify. The court indicated its willingness to relieve counsel if movant had an attorney who would enter his appearance that day and would be ready to proceed. Although appointed counsel had represented movant for nearly a year, movant made no request that counsel be relieved until the day of trial. During the colloquy, movant expressed his lack of ability to try the case himself.

The trial court then conferred with appointed counsel and concluded that counsel had investigated all leads furnished him by defendant, had familiarized himself with the law, and based upon the court’s personal knowledge of counsel’s ability and counsel’s statements determined that counsel was providing able and effective assistance. It should further be noted that counsel had pursued, over his client’s objections, a request for mental examination and had consulted with two of the most experienced criminal trial lawyers in the area. Counsel also advised the court that he had not filed a pre-trial motion challenging the qualifications of the vicjtim to testify as he regarded this as a proper subject for intra-trial proceedings (in which conclusion he was correct) and he did challenge such qualifications prior to the victim’s testimony.

When movant indicated he could not hire counsel as specified by the court, the trial commenced. After selection of the jury, movant for the first time asked the court to permit movant to try the case without assistance of counsel. We note that in Faretta the Supreme Court laid great stress upon the fact that defendant’s request to represent himself was made “weeks before the trial.” 422 U.S., l.c. 835, 95 S.Ct. 2525.

Throughout the trial, movant was given frequent and full opportunity to consult with counsel and to determine the direction of his defense. Against counsel’s advice he called three witnesses.

The first witness was a friend of mov-ant’s, then confined to the St. Louis county Jail. This witness inferentially and indefinitely lent some slight support to movant’s defense that the victim’s mother (who was at work at the time of the assault) was angry at movant for going out with other women and had put her daughter up to telling the story she did. The witness also admitted he had seven convictions for burglary, one for attempted burglary, three for stealing, and one for escape.

The second witness was movant. His decision to testify against counsel’s advice allowed the jury to be made aware of mov-ant’s three prior convictions for armed robbery. It also produced a story which mov-ant admitted on the stand made liars out of the victim, her babysitter, and two police officers. As to the police officers, the conflict in testimony was as to the time at which the movant was arrested.

The third witness was a female friend of defendant and the mother of two children by him. Her only testimony relevant to the case concerned movant’s moral character. She testified it was not good. As to his attitude toward children, she didn’t know. The record reflects that these questions were asked of the witness only because movant insisted they be asked.

The evidence in the case was overwhelming. Movant was found clothed only in his underwear in a bedroom with the victim. The victim was lying on a blood and semen stained bed without her underpants on. The victim had a traumatic injury to her face and inner vaginal area, and testified clearly and specifically about the sexual conduct of movant with her and that he struck her on the face. The babysitter testified to hearing screams from the child shortly before the babysitter went to the room. Movant testified he had simply spanked the child for running away.

Upon the record before us, it is clear movant was in no way prejudiced by the court’s action in refusing to discharge counsel. Movant expressed doubt about his ability to try the case, he requested discharge after the trial had commenced, the charged crime was at the time of trial a capital offense, movant had unlimited opportunity to confer with counsel and in fact controlled and determined the evidence and defense presented.

The words of United States v. Taylor, supra, l.c. 453, are completely apropos:

“The fact of the matter is that Taylor was allowed to present his own defense as he saw fit, and that appointed counsel’s participation in the trial did not in any manner impinge upon or undercut the defense (if it may be called such) presented by Taylor.”

If movant was prejudiced during the trial, it was not because of the presence of counsel.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


author: HOGAN, Judge.

text:
    STATE of Missouri, Respondent, v. John ABBOTT, Appellant.
    No. 10601.
    Missouri Court of Appeals, Springfield District.
    Sept. 25, 1978.

      Gordon Fritz, Malden, for appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
    Before BILLINGS, C. J., and HOGAN and TITUS, JJ.
   HOGAN, Judge.

A jury has found defendant John Abbott guilty of first-degree murder as an abettor in the killing of John Frank Holder, who was robbed and shot to death outside his liquor store near Clarkton, Missouri, during the early morning of February 24, 1976. Defendant’s punishment has been fixed at imprisonment for life. He appeals.

The sufficiency of the evidence is not challenged, and defendant has made no allegation of error respecting the sufficiency of the information, the verdict or the judgment and sentence. The only two assignments of error briefed by the defendant are, as stated: (1) “The Court erred in admitting as evidence the boots taken from Defendant at the time of his arrest because the arrest was illegal in that the officers did not have probable cause to believe that the Defendant had committed a crime”; and (2) “The Court erred in overruling Defendant’s Motion to Suppress and [in] admitting as evidence the oral statement made by Defendant subsequent to Defendant’s arrest for Investigation of Robbery and Murder because an arrest for investigation of a crime is not an arrest for a legal crime and is illegal.” Rule 28.02, V.A.M.R. limits our review to the allegations of error briefed on appeal and we may consider only the two points briefed. State v. Umfleet, 538 S.W.2d 55, 60[13] (Mo.App.1976).

The defendant was charged on March 24,1976. On November 17 thereafter defendant filed a motion to suppress, alleging: (1) that he was taken in custody on February 24, 1976, in connection with the murder of John Frank Holder; (2) that the officers who took defendant in custody had neither a warrant for his arrest nor probable cause to believe he had committed a crime; (3) that subsequent to defendant’s arrest, the arresting officers unlawfully seized defendant’s boots and took currency from his possession; and (4) that subsequent to his arrest, defendant made a statement but the statement was not, for various reasons, voluntarily made. Obviously, the defendant has shifted his ground of objection to the use of his statement in evidence; before the trial court, his objection was that the statement was inadmissible because it was involuntary (our emphasis); in this court, defendant’s point is that the statement was inadmissable because he was unlawfully in custody. Generally, a defendant may not shift or broaden his objection to the admissibility of evidence on appeal, State v. Jones, 515 S.W.2d 504, 506[3,4] (Mo.1974); State v. Brookshire, 353 S.W.2d 681, 688[17] (Mo.1962); State v. Adams, 531 S.W.2d 763, 765[4] (Mo.App.1976), and defendant’s objection to admission of the statement might be disregarded because the ground of objection here is not the same as that presented in the trial court. Nevertheless, because of the gravity of the offense charged and the length of the sentence imposed, we prefer to consider the defendant’s assignments of error on their merits.

The trial court conducted a suppression hearing prior to trial, in chambers and out of the hearing of the jury. As received, the evidence is somewhat difficult to follow, chronologically. However, in reviewing the record on the issue of probable cause, we have borne in mind: (1) that we are limited to a consideration of the facts known to the arresting officers at the time of the arrest, State v. Hicks, 515 S.W.2d 518, 521[1] (Mo. 1974); State v. Kelley, 473 S.W.2d 707, 710[3] (Mo.1971), but nevertheless (2) all the information in the officers’ possession, including fair inferences therefrom, may be considered. State v. Wiley, 522 S.W.2d 281, 287[5] (Mo.banc 1975); State v. Kelley, supra, 473 S.W.2d at 709. These principles considered, the record justifies the following statement: On February 24,1976, state and local peace officers were summoned to investigate an apparent robbery and murder at John Frank Holder’s liquor store near Clarkton. The fact that no wallet was found on Mr. Holder’s person taken with the fact that Mr. Holder “[was] always known for carrying large sums of money” indicated that the victim had been killed in the course of an armed robbery. Deputy Sheriff Bob McDonald, a peace officer with “over sixteen years’ ” experience, was one of the first officers to arrive upon the scene. He observed Mr. Holder’s car parked in front of the liquor store, saw the victim “laying on the ground near his front doorsteps,” saw what appeared to be a bullet wound upon the victim’s person, and observed what seemed to be bullet holes “in some boards there . . . next to the doorstep.”

Further investigation on McDonald’s part disclosed “two sets of footprints that appeared to be [made by] boots.” These footprints, or bootprints, led “from the crossroads down there southwest of the building, and of course, we tracked them . the fill was . . soft and everything and we tracked them right up to the scene of the crime . . . very good footprints.” McDonald testified “you could see in the footprints to where there was a slight flaw in one of the boots” ... its got a piece off of it.”

Trooper Larry Plunkett, a member of the State Highway Patrol, also participated in the investigation at the scene. Trooper Plunkett testified at the suppression hearing that he observed footprints on the morning of February 24; the “imprints” indicated “a real heavy cord [that of] a fairly new boot, around the edge of the sole.” It is readily and directly infer-able from the record that both officers believed the footprints were made by the high-arched, high-heeled sort of boot commonly known as a “cowboy” boot. McDonald testified that when he saw the bootprints, the defendant came to mind as a possible suspect because he knew the defendant habitually wore cowboy boots, and, some years earlier, defendant had been convicted of felonious assault upon the person of the victim’s father. One Coby Edmond, “the chief of police ... at Clarkton,” “brought up” the fact that the defendant was “back in the area.”

Having arrived at the Holder Liquor Store about 7:00 a. m., Deputy McDonald and Trooper Plunkett left there about 9:30 to investigate local “. . suspects that we figured might be involved . . .” They contacted one Charles Beck, a known associate of the defendant’s, who informed the officers “that [defendant] and his brother-in-law had been to see [him] the day before about borrowing some money.” This, in Deputy McDonald’s words, “. . . let us know for sure that [defendant] was back in the area and apparently he was broke the day before this robbery occurred.”

In this connection, the record of the suppression hearing has a curious aspect. Upon direct examination, Deputy McDonald was asked a number of questions about his investigation of the crime prior to the defendant’s arrest. Specifically, McDonald was asked the following questions and gave the answers indicated:

“Q. Did your investigation disclose whether Wheelis (defendant’s brother-in-law) and the defendant were in the Clarkton area prior to the finding of Mr. Holder dead? A. Yes, sir.
Q. What did your investigation disclose as to that? A. It disclosed that Leroy Wheelis, Jr., and [defendant] came to the Clarkton area on the afternoon before this offense taken place and that they got together with other codefendants [sic] and drove out just north of Clarkton . and all got in one car and drove around to the northwest of Clark-ton and discussed the robbery of Johnny Holder and other robberies that they might commit . . . ”

The record does not make it entirely clear when this information came to Deputy McDonald, and is utterly silent as to its source. Presumably it came from an informant; if so, he is not identified and there is no indication whether the informant or the information was reliable and for these reasons, the questions and answers quoted have been largely discounted in determining the existence of probable cause even though a peace officer may properly rely on information received from an informer if there is a substantial basis for crediting the hearsay evidence thus obtained. State v. Wiley, supra, 522 S.W.2d at 287-288[10],

In any event, the transcript makes it quite clear that in talking to Beck and to a Mrs. Weaver, officers McDonald and Plunk-ett obtained information which led them to believe defendant and his brother-in-law were living at Bernie, Missouri. The officers then contacted the chief of police at Bernie and discovered that Wheelis, the brother-in-law, had “rented a house and had a meter put into it . . .” McDonald, Plunkett, and two other officers went to the Wheelis residence. Officers McDonald and Plunkett went to the front door, knocked, and when Wheelis came to the door, “stated our business” and “. asked him for permission to search [the] house.” Wheelis replied “. . . that [defendant] wasn’t there, he had went to find some work, and that we could search [the Wheelis] house.” Trooper Plunkett’s version of the entry was that he and McDonald (and perhaps) one other officer knocked at the door of the Wheelis residence and were admitted to the premises. According to Plunkett, the officers asked to look around the house, and were told that would be “all right.” The officers were not asked to produce a search warrant.

In searching the house, the officers “worked [their] way back to the bathroom, at the rear of the house, and found the bathroom was locked “from the inside.” Believing the defendant to be in the bathroom, the officers called for him to come out. Very shortly the defendant emerged, and as McDonald put the matter, “we noticed that he was barefooted.” As the defendant walked out of the bathroom Plunkett stepped inside “to make sure there wasn’t a gun [in] there, looked around,” and found a pair of cowboy boots. Both witnesses testified the boots “matched the prints found at the scene.” Plunkett testified that he brought the boots to the door of the bathroom and showed them to McDonald. McDonald “looked at the soles [of the boots]” and placed the defendant under arrest.

As noted, the defendant has briefed two assignments of error in this court. The first point, as amplified in the “Argument” part of defendant’s brief is that his boots were not admissible in evidence because: (1) the investigating officers did not have probable cause to arrest the defendant, therefore the seizure of the boots was not incident to a lawful arrest; and (2) the boots were seized prior to defendant’s arrest, so even if the arrest was lawful, the boots were unlawfully seized.

Our courts, and courts generally, have adopted the definition of probable cause for a warrantless arrest which was laid down in Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879, 1890 (1949). Probable cause to arrest exists when the facts and circumstances within the arresting officer’s knowledge and of which he has reasonably trustworthy information are sufficient to warrant a belief by a man of reasonable caution that the person to be arrested has committed a crime. State v. Wiley, supra, 522 S.W.2d at 287[1-3]. Commonly, in determining the existence vel non of probable cause to arrest, appellate courts have undertaken to lay down the specific, discrete items of information or knowledge available to the arresting officers when the arrest was made. See, e. g., State v. Hicks, supra, 515 S.W.2d 519 (Mo.1974) and State v. Howell, 543 S.W.2d 836 (Mo.App.1976).

The defendant invites factual comparison of this case with Hicks, supra, a case in which our Supreme Court found no probable cause, and Howell, supra, where this court found no probable cause. We decline. A factual comparison of this case with Hicks and Howell would serve no useful purpose. Unless one resorts to the technical and speculative terminology of research psychologists, there is no system of measurement by which to ascertain the order and amount of knowledge and information, or both, which constitutes probable cause to arrest without a warrant. In every case in which the existence of probable cause is in issue, the court must exercise a subjective judgment, and this conclusion is illustrated by the fact that our courts have in the final analysis resorted to the comfortable saw that “. . . [T]he determination of probable cause depends upon the particular facts and circumstances of the individual case . . .” State v. Wiley, supra, 522 S.W.2d at 287[6]; State v. Goodman, 449 S.W.2d 656, 660[5] (Mo.1970); State v. Grady, 548 S.W.2d 601, 608[7] (Mo. App.1977). We have recited the facts leading up to defendant’s arrest in tedious detail and we are in no doubt that as soon as Deputy McDonald and Trooper Plunkett saw and examined the defendant’s cowboy boots and realized that the boots had the characteristics of the boots which left the impressions in the earth they had seen earlier the same day at the Holder liquor store, they had probable cause to arrest the defendant.

We suppose this leads to the conclusion that the boots were seized before the defendant was arrested; it does not follow that the boots were inadmissible in evidence. One of the well-established exceptions to both the warrant and probable cause requirements of the Fourth Amendment is a search conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854, 855 (1973); State v. Wells, 550 S.W.2d 793, 796[4] (Mo.App.1977). Further, it is clear that the requisite consent to search may be given by one who has joint access or control, for most purposes, of the premises to be searched. United States v. Matlock, 415 U.S. 164,171, n. 7, 94 S.Ct. 988, 992-993, 39 L.Ed.2d 242, 249-250 (1974); State v. Johnson, 539 S.W.2d 493, 520[66] (Mo.App. 1976), cert. denied 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977). Of course, it must be shown that the consent to search was not coerced, by explicit or implicit means, or by implied threat or covert force. Schneckloth v. Bustamonte, supra, 412 U.S. at 228, 93 S.Ct. at 2047-2048, 36 L.Ed.2d at 863; State v. Pinkus, 550 S.W.2d 829, 835 (Mo.App.1977). Here, Deputy McDonald and Trooper Plunkett carefully ascertained that Wheelis had rented the house which they searched, and had obtained utilities service for the house. McDonald very positively testified that “[W]e didn’t go up [to Wheelis’] house and barge in. We didn’t go in and knock the door open. We went up there and knocked on the door and [when] Mr. Wheelis came to the door, stated our business . . .” Wheelis was told that the investigating officers thought the defendant was involved in a robbery, and the officers asked for permission to search the house. Wheelis gave permission, and as the officers began their search, McDonald explained that the officers thought the defendant might be armed. Plunkett was asked if he and the other officers “ask[ed] to look around the house.” According to Plunkett, Wheelis “. . . said [that] would be all right.” Moreover, the record shows that the boots were taken from a commonly shared bathroom, a place wherein defendant had no reasonable expectation of privacy, except for those times when he was using the bathroom. On this record, it is manifest that the cowboy boots were the product of a valid consent search and were admissible in evidence. State v. Pruitt, 479 S.W.2d 785, 788 (Mo.banc 1972); State v. Williams, 536 S.W.2d 947, 949[4] (Mo.App. 1976).

The defendant’s further point, that his arrest was a purely investigatory arrest and that any statement obtained after he was arrested should have been suppressed is little more than a play on words. During cross-examination, Deputy McDonald was asked what made him “decide to place [the defendant] under arrest.” McDonald detailed a number of reasons which seemed to him to be important. Among those reasons was McDonald’s belief that “whenever we found the boots in the bathroom . I felt like [there] was a close enough connection to the crime to arrest him for the crime to continue a further investigation.” Defendant argues that his arrest was investigatory, simply to afford the arresting officers time and opportunity to amass facts sufficient to constitute probable cause, and therefore was not lawful. State v. Howell, supra, 543 S.W.2d at 840[6]. Invoking the colorful metaphor of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), defendant claims any statements made by him after his arrest should have been suppressed.

We cordially agree that an arrest “for investigation” without probable cause is not a lawful arrest and may not be used as a pretext to obtain evidence amounting to probable cause. For several reasons, however, we cannot agree that defendant’s statements constituted “poisonous fruit.”

During cross-examination, having given his reasons for arresting the defendant, McDonald was also asked what he arrested defendant for after the defendant came out of the bathroom. McDonald unequivocally replied “[I] arrested him for the robbery and murder of John Frank Holder.” McDonald also testified that at that point, he gave defendant a Miranda warning and handcuffed him. In this State, a defendant is under arrest when the officer takes charge of and control of his movements. State v. Goodman, supra, 449 S.W.2d at 661[8] (Mo.1970); State v. Sampson, 408 S.W.2d 84, 87[3] (Mo.1966); State v. Stokes, 387 S.W.2d 518, 522 (Mo.1965). The fact that the arresting officer may have characterized the arrest as an arrest “for investigation” is not controlling, if the officer had probable cause to arrest the defendant upon a charge of robbery and murder. United States v. Story, 463 F.2d 326, 328-329[6] (8th Cir. 1972), cert. denied 409 U.S. 988, 93 S.Ct. 343, 34 L.Ed.2d 254 (1972). The existence of probable cause is a matter of actual fact, and McDonald’s subjective opinion was not material. Klingler v. United States, 409 F.2d 299, 304-306[9][10][ll] (8th Cir. 1969), cert. denied 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110 (1969); McNeely v. United States, 353 F.2d 913, 918[11] (8th Cir. 1965). When Deputy McDonald took charge and control of defendant’s movements, told defendant he was under arrest, read defendant a Miranda warning and put him in manacles, McDonald had probable cause to arrest the defendant for robbery and murder, and the trial court did not err in admitting defendant’s statements in evidence.

We find no error in any respect briefed or argued in this court; accordingly, the judgment is affirmed.

All concur.

      . Defendant was charged and convicted under the homicide statutes enacted in 1975. Laws of Mo. 1975, pp. 411 — 412, §§ 1-5, now repealed. Inasmuch as no death penalty could have been lawfully imposed under the statutes in force when the defendant was convicted, State v. Duren, 547 S.W.2d 476, 480[1] (Mo.banc 1977), this court has original jurisdiction of the appeal. See Garrett v. State, 481 S.W.2d 225, 227[3] (Mo.banc 1972).

      . Neither McDonald nor Plunkett could recall whether the defendant was wearing socks when he emerged from the Wheelis bathroom; what both officers noticed was that he wore no shoes.

      . The defendant made two statements after his arrest, one oral statement amounting to a confession, and one written statement later. Both statements amounted to confessions of guilt as an abettor, and on trial McDonald testified to both statements; it does not appear that the written statement was offered or received in evidence.


author: COOPER, Justice.

text:
    BURLINGTON INDUSTRIES, INC., d/b/a Harriman Hosiery Company and Liberty Mutual Insurance Company, Appellants, v. Betty M. CLARK, Appellee.
    Supreme Court of Tennessee.
    Oct. 9, 1978.
    John W. Wheeler, Hodges, Doughty & Carson, Knoxville, for appellants.
    J. Polk Cooley, Rockwood, for appellee.
   OPINION

COOPER, Justice.

This appeal is limited to the single issue: Did the trial judge commit error in ordering appellants to pay medical bills incurred by Betty M. Clark in the course of her treatment by Dr. Geron Brown? It is undisputed that the medical expenses were incurred in treatment of an injury sustained by Mrs. Clark while in the employ of appellant, Burlington Industries, Inc. The dispute over liability for payment of the expenses is predicated on the fact that Dr. Brown was selected as a treating physician by Mrs. Clark, not her employer.

Mrs. Clark operated a knitting machine for the Burlington Industries at its Harri-man, Tennessee, plant. On February 2, 1976, while performing the work assigned to her, Mrs. Clark stepped in oil that had leaked from her machine and fell to the floor, she sustained a hard blow to her “tail bone.” She complained of pain and, consequently, was taken to see the plant nurse. No other medical attention was tendered Mrs. Clark. The next morning Mrs. Clark’s husband took her to the emergency room of the Oak Ridge Hospital for treatment. On examination, the emergency room physician suggested that Mrs. Clark see Dr. Spray, an orthopedic surgeon practicing in Oak Ridge. Mrs. Clark followed up the suggestion and found that it would be “a week or so” before she could be examined by Dr. Spray.

The next day, which would be the second day after her fall, an insurance adjuster representing Burlington’s insurance carrier came to see Mrs. Clark. Without objection from Mrs. Clark, the adjuster made an appointment for her to see Dr. Archer Bishop, an orthopedic surgeon practicing in Knoxville. So far as the record shows, no other doctors were suggested or recommended by the adjuster, nor did Burlington furnish Mrs. Clark with a list of three or more physicians so that she could make a choice of a treating physician.

Mrs. Clark was treated by Dr. Bishop from February, 1976, until December, 1976. During this time, Dr. Bishop arranged for a myelogram and a caudal block to be performed, caused Mrs. Clark to be seen in consultation by two neurosurgeons, a gynecologist, and a psychiatrist; however, Dr. Bishop remained the treating physician. On discharging Mrs. Clark as a patient, Dr. Bishop stated, according to Mrs. Clark that “he had done all he could.”

Mrs. Clark testified that throughout the period she was undergoing treatment prescribed by Dr. Bishop, and at the very moment she was discharged as a patient, she suffered constant and severe pain in the low back area. On being discharged as a patient, Mrs. Clark went to her family physician, not for the purpose of evaluation of her physical condition but to secure medication for her pain. Her family doctor, however, sent her to Dr. Geron Brown, a member of the orthopedic group practicing in Oak Ridge, for examination.

On examining Mrs. Clark and during treatment of her injury, Dr. Brown found several positive objective signs that Mrs. Clark had “a herniated nucleus pulposus” caused by her fall on February 2,1976. Dr. Brown expressed the opinion that as the result of her injury, Mrs. Clark had a permanent physical impairment of twenty-five percent to the body as a whole. He also recommended that Mrs. Clark undergo surgery in order to be relieved of her constant back pain. Surgery had not been performed at the time of trial, primarily because appellants had questioned their liability for payment of medical expenses incurred by Mrs. Clark.

Accepting Dr. Brown’s testimony, the trial judge found that Mrs. Clark was totally disabled from her injury for a period of forty-eight weeks and that she had a permanent partial disability of forty percent to the body as a whole. The trial judge also ordered appellants to pay all medical expenses, including the charges by Dr. Brown and the cost of hospitalization ordered by him.

T.C.A. § 50-1004 provides that the employer shall furnish within certain limitations

such medical and surgical treatment, medicine, medical and surgical supplies, crutches, artificial members, and other apparatus, such nursing services as ordered by the attending physician and hospitalization, including such dental work made reasonably necessary by accident as herein defined, as may be reasonably required; . . . The injured employee shall accept the medical benefits afforded hereunder; provided, that the employer shall designate a group of three (3) or more reputable physicians or surgeons not associated together in practice if available in that community from which the injured employee shall have the privilege of selecting the operating surgeon or the attending physician; .

As was pointed out in Employers Insurance of Wausau v. Carter, 522 S.W.2d 174, 176 (Tenn.1975),

Referring the employee to a single physician does not comply with the statute; it is an usurpation of the privilege of the employee to choose the ultimate treating physician. See Holston Valley Community Hospital v. Dykes, 205 Tenn. 336, 326 S.W.2d 486 (1959). An employer who would claim the benefits of the statute should, himself, be required to comply with it. Likewise, the employee must comply with this statute if he is to be entitled to receive its benefits.

Where the employer fails to give the employee the opportunity to choose the ultimate treating physician from a panel of at least three physicians selected by the employer, he runs the risk of having to pay reasonable medical expenses incurred for treatment of the employee’s injuries by a physician of the employee’s own choosing. See Employers Insurance of Wausau v. Carter, 522 S.W.2d 174, 176 (Tenn.1975); Holston Valley Community Hospital v. Dykes, 205 Tenn. 336, 326 S.W.2d 486 (1959). As pointed out in Holston Valley Community Hospital v. Dykes, supra, “we are not agreeable to placing the decision [of whether the employee is liable for medical expenses incurred by the employee on his own] solely on the fact that the employer did not comply with this provision of the law and thus to leave it open to any employee to act on his own initiative under all circumstances in quitting the doctor assigned him by the employer and then switching over without notice to the employer to another doctor.” The decision turns on the issue of whether, under the circumstances, the employee was justified in obtaining further medical service, without first consulting the employer. Tom Still Transfer Co. v. Way, 482 S.W.2d 775 (Tenn.1972); Holston Valley Community Hospital v. Dykes, supra.

In the instant case, no instructions or advice was given Mrs. Clark by her employer or the insurance adjuster relative to the selection of a physician. Neither did they complain of the fact that Mrs. Clark incurred a medical expense in initially seeking treatment at Oak Ridge Hospital, nor did they tell her that it would be improper for her to be treated by the orthopedic group in Oak Ridge, to whom the emergency room doctor referred her. To the contrary, they shifted her to Dr. Bishop on the basis they could secure treatment for her at an earlier time. She faithfully did what Dr. Bishop asked her to do. He discharged her as a patient at a time when she was suffering from intense pain, telling her “I have done all I can do for you.” What would be the natural reaction of an employee, who has only a ninth grade education, under these circumstances?

In a similar case the court, in requiring the employer to pay the medical expenses of the second doctor, commented:

When we consider the fact that this employee was a menial workman, a janitor at the hospital, and of very little education and able to do only the work of a common laborer, we must realize that under the circumstances it never occurred to him that he might have obviated this lawsuit if he had gone back to his employer and requested that he be given another doctor. On the other hand, the employer was first at fault in not complying with the law in offering the employee a choice of one among three or more reputable physicians and if they had complied with the law, they would be in a far different position from what they are now. We are not agreeable to placing the decision of this question solely on the fact that the employer did not comply with this provision of the law and thus to leave it open to any employee to act on his own initiative under all circumstances in quitting the doctor assigned him by the employer and then switching over without notice to the employer to another doctor. We do think, however, that on the facts of this case the trial judge on the evidence before him and with his opportunity to see the parties and observe particularly this petitioner was justified in allowing such part of the medical expense that he did. Holston Valley Community Hospital v. Dykes, 205 Tenn. 386, 326 S.W.2d 486, 489.

See also Atlas Powder Co. v. Grant, 200 Tenn. 617, 293 S.W.2d 180 (1965), wherein the court required the employer to pay medical expenses incurred by the employee. The court there found that the employee acted in good faith in seeking the services of a physician other than the one selected by the company. The court emphasized that the employee had cooperated with the company and its physicians, and had sought out the services of an independent physician only after he found out that he was not cured and differences had arisen between the employee and the company’s physician.

In the instant case there is no question but that Mrs. Clark acted in good faith when she sent to her family physician. It was a natural reaction to having been dismissed by the company physician in the face of the known fact she was suffering from constant and severe pain. Further, as heretofore noted, there is nothing in the record to indicate that Mrs. Clark knew that she should consult her employer before following up on her referral to an orthopedic specialist by her family physician. Neither the adjuster for the insurance company nor her employer told her, though they had the opportunity to do so when they steered her to Dr. Bishop. Under these circumstances, we agree with the trial judge that Mrs. Clark was justified in seeking medical care of her own choosing for which the non-complying employer is liable. See: Holston Valley Community Hospital v. Dykes, supra; Atlas Powder Co. v. Grant, 200 Tenn. 617, 293 S.W.2d 180 (1956); Atlas Powder Co. v. Grimes, 200 Tenn. 206, 292 S.W.2d 13 (1956).

Judgment affirmed. Costs incident to the appeal are adjudged against the appellants, Burlington Industries, Inc., d/b/a Harriman Hosiery Company and Liberty Mutual Insurance Company.

HENRY, C. J., and FONES, BROCK and HARBISON, JJ., concur.