author: EVANS, Justice.

text:
    Joe A. LAUGHLIN, Trustee, Appellant, v. James STEPHENSON et ux., Appellees.
    No. 16413.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 22, 1975.
    Frank Stovall, Houston, Larry E. Wadler, Wharton, for appellant.
    W. W. Kilgarlin, Warren E. Hancock, Jr., Kilgarlin, Dixon & Hancock, Houston, of counsel, for appellees.
   EVANS, Justice.

This is a suit brought by Joe A. Laughlin, Trustee, for specific performance of an earnest money agreement dated April 13, 1973 executed by Mr. and Mrs. James Stephenson, as Seller, and by Laughlin, Trustee, as Purchaser, covering 100 acres of land in Fort Bend County, Texas. The trial court denied all relief, including the Stephensons’ cross-action for damages for cloud allegedly cast on their title. Joe Laughlin, Trustee, appeals.

The facts are for the most part undisputed. Laughlin, a real estate broker, was associated in his business with John A. Watson. In April, 1973 Watson contacted the Stephensons about certain property which they had advertised for sale. Several days later, Laughlin and Watson drove to the Stephensons’ home in Fort Bend County where they spent the afternoon with Mr. Stephenson looking at parcels of land which Stephenson owned. After viewing the 100 acre tract, Laughlin and Watson expressed their interest in purchasing the property and discussed the terms of the transaction with Stephenson. It was explained to them at that time that Stephenson had contracted to buy the property from a party who lived in San Antonio and that a suit brought by Stephenson to specifically enforce the contract was then pending on appeal.

On April 13, 1973 Laughlin returned to the Stephensons’ home with an earnest money contract which had been prepared at his office. The contract was typed on nine legal size pages and contained nineteen separate paragraphs. The parties spent some time going over the contract and discussing the terms. Stephenson testified that he didn’t have his glasses and that his wife read the contract and commented on it. She then said: “It is o. k., sign it.” He testified that she did not notice, and therefore failed to bring to his attention, the provision for a 6% brokerage commission to the purchaser-agent, Mr. Laughlin.

Before the contract was executed the parties made a number of changes which they both initialed. Laughlin then took the signed contract and his earnest money check to Capital Title Company in Fort Bend County. Within fifteen minutes after Laughlin left the Stephensons’ home, Stephenson called the manager of Capital Title Company and then spoke with Laughlin on the telephone. Stephenson testified that he advised Laughlin that the contract provided that he was to pay a 6% brokerage commission (which would have amounted to the sum of $3900.00) and that he had never intended to agree to such a provision. He testified that his agreement was to get $650.00 an acre net and that after Laughlin left his house, his wife discovered that the contract provided for a realtor’s commission which was not part of their agreement. He said that he advised Laughlin of this and that Laughlin replied that if he did not want to accept a reduction in the commission to the amount of $2,000.00, to “just forget about the whole deal.” He said Laughlin told him: “All right. I am going to change it and you come down and pick it up. If you don’t like it, forget it.” Stephenson testified that his wife later went down to the title company and retrieved the contract and about a week later the Ste-phensons entered into a contract to sell the property to another party for a higher price per acre.

The earnest money agreement, prior to its alteration at the title company, provided for a total sales price of $65,000.00 based on the per-acre price of $650.00, for a down payment of $7,900.00 and for a deferred consideration of $57,100.00. It further provided for a commission to be paid to Watson and Laughlin of 6% of the total sales price which would have amounted to the sum of $3,900.00. The testimony showed that the alterations made after execution at the title company were done by Mr. Marvin Zindler, Jr., Manager of the Title Company, in his own handwriting and were initialed solely by the purchaser, Joe Laughlin. These changes were as follows: The total purchase price was increased to $66,900.00 based on a per-acre determination of $669.00; the cash down payment was reduced to $6,000.00, the deferred consideration increased to $59,000.00, and the commission was stipulated to be the sum certain of $2,000.00.

Subsequent to the events described above, Laughlin sent a letter to Stephenson dated April 16, 1973 which recites the following:

“The business deal we have agreed upon is as follows:
100 Acres @ $650 $65,000
1st Lien Note 31,500
Cash Down Payment 6,000
2nd Lien Note (to you) 27,500
“Out of the cash down payment, you are to pay the following:
Total Cash Down Payment $ 6,000
Commission 2,000
Title Policy 300
Survey & Other Expenses 200
Net to You $ 3,500
“We agree that you should receive a net of $3,500 out of the sale, provided the survey and legal expenses are reasonable for a transaction of this nature. You agreed to pay $2,000 of the commission. The first lien note is payable quarterly over fifteen (15) years at eight percent (8%); the second lien note is payable quarterly over fifteen (15) years at seven percent (7%).
“All other provisions of the contract remain in effect.”

This letter contained a provision at the bottom for a date and the signature of Stephenson, but the testimony indicated it was never signed or returned to Laughlin. It was-Laughlin’s position, as reflected by his testimony, that the changes in the earnest money contract were requested by Stephenson over the telephone and were made for his benefit. Laughlin testified that Stephenson’s greatest concern throughout their negotiations was that he receive a net payment of $3,500.00 and that it was primarily for the purpose of assuring Stephenson that he would receive such net payment that he wrote the letter of April 16, 1973 to him. Mr. Laughlin stated that he did not recall having told Mr. Stephenson on the telephone that if he didn’t want to go along with the changes that the whole deal was off, but he said he was not sure exactly what he said to Mr. Stephenson in that respect.

The appellant, Mr. Laughlin, argues that the earnest money agreement was complete and binding upon both parties after execution at the Stephensons’ home and that a unilateral mistake on the part of Mr. Stephenson as to one of the terms of the agreement constitutes no basis for the rescission of the contract. He points to the absence of pleadings or evidence of fraud or mutual mistake and suggests that the Stephensons should not be permitted to avoid the legal effect of the contract on the basis of their unilateral mistake which he asserts was due to their negligence in failing to read and appreciate its contractual terms.

The record reflects that while a request was made for findings of fact and conclusions of law, the trial court’s omission to file such findings and conclusions was not called to its attention as required by Rule 297, Texas Rules of Civil Procedure. Therefore, we must consider that all facts essential to the judgment were found by the trial court and we must affirm the trial court’s judgment if it can be supported on any theory presented by the record. Polk v. Grogan’s Wholesale & Retail Lumber, 325 S.W.2d 201 (Tex.Civ.App. — Waco 1959, writ ref’d n. r. e.). In reviewing the evidence in the record to determine whether it supports the judgment and the implied findings incident thereto, we consider the evidence in a light most favorable to the Stephensons’ position. Renfro Drug Go. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1951).

It is clear from the facts of this case that the Stephensons discovered their error within a few minutes after the execution of the contract and that they wasted no time in making their discovery known to Mr. Laughlin. Where a mistake is quickly discovered and notice promptly given to the vendor who has suffered no substantial change of position the court in the exercise of its equity jurisdiction may refuse to grant specific performance. 3 Corbin on Contracts, Sec. 612, pp. 700—702 (1960 ed.); See also, Restatement of the Law of Contracts, Sees. 366 and 267.

“ ‘Where the court is satisfied that the result which bears so hard upon the defendant, though legally a constituent part of the contract, was not intended by the parties at the time of the agreement—in fact, was not in contemplation as the effect of the agreement, which was expressed in terms too unqualified—it will not specifically enforce the agreement.’ ” [Edwards v. Trinity B. V. By. Co., 54 Tex.Civ.App. 334,118 S.W. 572, 576 (1909, writ refused), quoting 2 Pomeroy on Equitable Jurisprudence, Sec. 791.]

Under the circumstances presented the trial court may have determined that it would have been inequitable to compel specific performance. In Riggins v. Trickey, 46 Tex.Civ.App. 569, 102 S.W. 918, 920 (1907, writ ref.), it is stated:

“A suit to compel specific performance of a contract falls under the exclusive jurisdiction of a court of equity, and must be governed by the same general rules which prevail in the administration of all equitable remedies. The right to the remedy depends upon certain conditions, elements, and incidents, such as that the contract must be reasonably certain, unambiguous, and based upon a valuable consideration; it must be perfectly fair in all its parts, free from any misrepresentation, misapprehension, fraud, mistake, imposition, or surprise; and the situation of the parties must be such that specific performance will not be harsh or oppressive. . . . The burden rested upon
appellant to show that, under the circumstances, specific performance would be just and equitable, and that it would not be hard and oppressive on appellee. The court did not abuse the discretion that rests with a court of equity in such cases, in refusing to compel specific performance of the contract.”

It is further apparent that material alterations were made in the terms of the earnest money agreement after its execution by the Stephensons. Generally speaking, a material alteration in a written instrument made by one of the parties after its execution and without the consent of the other avoids the instrument and extinguishes the liability of the non-consenting party. Bowser v. Cole, 74 Tex. 222, 11 S.W. 1131 (1889); Baldwin v. Haskell National Bank, 104 Tex. 122, 133 S.W. 864 (1911).

In the instant case appellant, Mr. Laughlin, testified that the alterations made in the contract after its execution were done at the request of Mr. Stephenson and as an accommodation to him. Mr. Stephenson denied that he had given his consent to such alterations. The trial court was at liberty to accept Mr. Stephenson’s version of the matter and to reject Mr. Laughlin’s. In the absence of findings of fact and conclusions of law, it may be assumed in support of the judgment that the trial court impliedly found against Mr. Laughlin’s contention that the alterations had been made in good faith and with Mr. Stephenson’s consent. Upon such implied finding, the trial court’s judgment denying specific performance of the contract was not an abuse of its discretion. Lowe v. Henson, 190 S.W.2d 423 (Tex.Civ.App.— Amarillo 1945, no writ); Pope v. Taliaferro, 51 Tex.Civ.App. 217, 115 S.W. 309 (1908, no writ).

Although the record is not completely clear on the point, it appears that at the time of trial the Stephensons had not acquired the legal title to the property and that title had been taken in the name of a Mrs. Beavers, a friend of Mrs. Stephenson. Mrs. Beavers was not made a party to the action and it is questionable whether relief by specific performance could have been decreed against the Stephensons while the legal title rested in a third party. See 81 C.J.S. Specific Performance §§ 16-17, p. 442; Clifton v. Charles, 53 Tex.Civ.App. 448, 116 S.W. 120 (1909, writ ref’d); Jones v. English, 235 S.W.2d 238 (Tex.Civ.App.— San Antonio, 1950, writ dism’d). However, in view of our holding that the trial court’s judgment may be supported upon the grounds discussed, we do not consider this question.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: GUITTARD, Justice.

license: Public Domain

text:
    MORGAN EXPRESS, INC., Appellant, v. ELIZABETH-PERKINS, INC., Appellee.
    No. 18590.
    Court of Civil Appeals of Texas, Dallas.
    June 5, 1975.
    Rehearing Denied June 26, 1975.

      Leonard E. Hoffman, III, Lyne, Klein, French <& Womble, Dallas, for appellant.
    Esir Tobolowsky, Dallas, for appellee.
   GUITTARD, Justice.

In this appeal from a default judgment, the defendant seeks reversal on the ground that the testimony on which the judgment was based was not recorded and, consequently, no statement of facts is available for review of the sufficiency of the evidence. Plaintiff contends that defendant has not shown diligence, since the record fails to show that a narrative statement of the evidence could not have been obtained by agreement or by request to the trial judge under Texas Rules of Civil Procedure 377. We hold that defendant was not required to seek such a narrative statement because neither defendant nor its counsel were present when the evidence was presented. Accordingly, we reverse the judgment and remand for a new trial.

The suit was filed by Elizabeth-Perkins, Inc. against Morgan Express, Inc. for the value of a shipment of dresses allegedly lost by defendant. Although properly served, defendant failed to answer, and judgment by default was rendered for $724.50 damages and an attorney’s fee of $150. Defendant filed a timely motion for a new trial, which was overruled. Defendant made a formal request to the official court reporter for a statement of facts. The reporter certified that he was unable to comply with the request because he was not present when the evidence was given and no other reporter recorded the testimony.

Without a statement of facts, we are unable to determine the sufficiency of the evidence to support the finding of damages. The damages alleged here are unliq-uidated, since they consist of the value of the property and the amount of a reasonable attorney’s fee. A default does not admit allegations of damages unless the claim is “liquidated and proved by an instrument in writing.” Tex.R.Civ.P. 241. If the claim is unliquidated the court must “hear evidence as to damages.” Tex.R.Civ.P. 243; Southern S.S. Co. v. Schumacher, 154 S.W.2d 283, 284 (Tex.Civ.App. — Galveston 1941, writ ref’d w. o. m.). Consequently, we must decide whether appellant is entitled to reversal because of lack of a record of the evidence heard.

If an appellant exercises due diligence and through no fault of his own is unable to obtain a proper record of the evidence, a new trial may be required in order to preserve his right to review. Robinson v. Robinson, 487 S.W.2d 713, 715 (Tex.1972); Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697, 700 (1936). If the appellant was represented at the trial and did not object to the taking of testimony in the absence of the reporter, his objection to lack of a record may be waived. In such cases the appellant must seek an agreed narrative statement of facts, and if no agreement can be reached, the trial judge is empowered by Tex.R.Civ.P. 377 to settle differences and certify a proper statement of facts. Robinson v. Robinson, supra; Whatley v. Whatley, 493 S.W.2d 299, 301 (Tex.Civ.App. — Dallas 1973, no writ).

If the appellant was not present and was not represented by counsel when the testimony was taken, and later discovers that no record was made, the lack of a record cannot reasonably be deemed waived. On the question of whether in this situation the appellant must show that he was unable to obtain a statement of facts by agreement or by request to the trial judge, the decisions of the courts of civil appeals are in conflict. One series of cases, beginning with Johnson v. Brown, 218 S.W.2d 317, 322 (Tex.Civ.App. — Beaumont 1948, writ ref’d n. r. e.), holds that a defaulting defendant is not entitled to reversal unless he shows that he was unable to obtain a statement of facts in this manner. Johnson was followed in Parker v. Sabine Valley Lumber Co., 485 S.W.2d 853 (Tex.Civ.App. — Fort Worth 1972, no writ) and in Harris v. Lebow, 363 S.W.2d 184, 185 (Tex.Civ.App. — Dallas 1962, writ ref’d n. r. e.). Other cases hold that a party who was not present or represented at the trial is entitled to a reversal if he is unable to obtain a record from the official reporter. Mitchell v. Hunsaker Manufacturing, Inc., 520 S.W.2d 796 (Tex.Civ.App. — Waco 1975, no writ); Dugie v. Dugie, 511 S.W.2d 623, 624 (Tex.Civ.App. — San Antonio 1974, no writ); James Edmond, Inc. v. Schilling, 501 S.W.2d 432, 434 (Tex.Civ.App. — Waco 1973, no writ).

In the absence of any expression by the Supreme Court, we must choose between these divergent views. We conclude that an appellant who was not present and was not represented when the testimony was taken is in no position to agree with his opponent concerning the substance of the testimony, and neither should he be required to rely on the unaided memory of the trial judge, who, though presumably fair, has already decided the merits of the case against the appellant. Cf. Waller v. O’Rear, 472 S.W.2d 789, 792 (Tex.Civ.App. —Waco 1971, writ refd n. r. e.). If the court has an official reporter, Tex.Rev.Civ. Stat.Ann. art. 2324 (Yernon 1971) imposes a mandatory duty on him to “[a]ttend all sessions of the court,” and to “take full shorthand notes of all oral testimony offered.” The trial judge has the responsibility to see that this duty is performed. Ex parte Thompson, 520 S.W.2d 955 (Tex.Civ. App. — Dallas 1975, no writ). If the reporter’s failure to perform this mandatory duty deprives a party of this right to an adequate review, the case should be remanded for a new trial.

Appellee cites cases holding that in absence of a statement of facts, the appellate court must presume that the evidence before the trial court was sufficient to support the judgment. This presumption does not apply on direct review of a default judgment where no statement of facts is available. Dugie v. Dugie, 511 S.W.2d 623, 624 (Tex.Civ.App. — San Antonio 1974, no writ); cf. McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex.1965).

Appellee also contends that the judgment should be affirmed because appellant did not raise the absence of a record by assignment of error in his motion for new trial. A motion for new trial is not a prerequisite to appeal in a nonjury case. Tex.R.Civ.P. 324. Although some courts have held that such a motion, if filed, must assign all the errors complained of on appeal, the law is now settled that appellant is not limited to the errors assigned in a non-mandatory motion. Boswell v. Handley, 397 S.W.2d 213, 217 (Tex.1965); and cf. State v. Ripke, 426 S.W.2d 599, 604 (Tex.Civ.App. — Corpus Christi 1968, writ ref’d n. r. e.).

Reversed and remanded.

ON MOTION FOR REHEARING

Appellee argues in its motion for rehearing that we erred in stating that no statement of facts is available for review of the evidence on damages. It points out that the transcript contains a document entitled “Statement of Facts of Evidence at Hearing on September 11,1974,” signed by counsel for appellee, reciting that the court heard testimony to the effect that the value of the property shipped and lost by appellant was $724.50.

Appellee admits that this document was not agreed to by appellant or certified as correct by the trial judge. Appellee argues, nevertheless, that in absence of objection by appellant, this unilateral statement of the evidence must be accepted as a proper statement of facts under the following provision of Tex.R.Civ.P. 377(a):

A party may prepare and file with the clerk a condensed statement in narrative form of all or part of the testimony and deliver a true copy thereof to the opposing party or his counsel, and such opposing party, if dissatisfied with the narrative statement, may require the testimony in question and answer form to be substituted for all or part thereof.

In support of this contention appel-lee relies on Pacific Fire Insurance Co. v. Smith, 145 Tex. 482, 199 S.W.2d 486 (1947). We cannot agree that either the Smith decision or rule 377(a) requires us to accept one party’s narrative statement of evidence which the other party did not hear as a basis for review. In Smith, a statement of evidence prepared by appellant’s counsel, who had participated in the trial, was held sufficient for review in absence of objection. Lack of a certificate by the judge was regarded as an “informality,” which was waived by failing to file a motion within thirty days as required by Tex.R.Civ.P. 404. Different considerations apply where the appellant was not present at the trial and an uncertified statement of the evidence is filed by appellee. In this situation the appellant is not in a position to determine whether the uncertified statement is correct or not. Consequently, absence of objection should not be taken as a waiver of a properly certified record.

Appellee insists that appellant had the duty under rule 377(a) to object to appellee’s narrative statement and, if dissatisfied, then to “require that testimony in question and answer form to be substituted for all or a part thereof.” This language of rule 377(a) assumes that the testimony has been recorded in question-and-answer form. Waller v. O’Rear, 472 S.W.2d 789, 792 (Tex.Civ.App. — Waco 1971, writ ref’d n. r. e.). Since the official reporter had certified that the testimony had not been recorded, a further request for evidence in question-and-answer form could not have procured a transcript of the actual testimony heard by the court. The rule should not be construed as requiring a meaningless formality unrelated to a just and fair adjudication of the rights of the litigants. Tex.R.Civ.P. 1.

Motion overruled.


author: HENLEY, Judge.

text:
    CRYSTAL TIRE COMPANY, Plaintiff, v. HOME SERVICE OIL COMPANY, Appellant-Respondent, and C.E.S. Truck Lines, Inc., Respondent-Appellant.
    No. 57140.
    Supreme Court of Missouri, En Banc.
    July 14, 1975.

      John S. Marsalek, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, Louis A. Robertson, Robertson, Ely & Wieland, St. Louis, for C.E.S. Truck Lines, Inc.
    Bearing, Richeson, Roberts & Wegmann, Roland A. Wegmann, Hillsboro, Holtkamp & Beckemeier, A. G. Holtkamp, E. Thomas Liese, St. Louis, for Home Service Oil Company.
   HENLEY, Judge.

This case is the sequel to Crystal Tire Company v. Home Service Oil Company and C.E.S. Truck Lines, Inc., reported in 465 S.W.2d 531 (Mo.1971). It involves an appeal by each of the two defendants from an adverse judgment on its cross-claim against the other. An opinion deciding the case was written in Division II, but on a dissenting opinion being filed the case was transferred to the court en banc. Supplemental briefs were thereafter filed by the parties and the case was again argued and submitted, after which the Division opinion failed of adoption and the case was reassigned.

A brief outline of the case is necessary. Crystal Tire Company (Crystal Tire) sued Home Service Oil Company (Home Oil) and C.E.S. Truck Lines, Inc. (C.E.S.) for damages to its property resulting from a fire and explosion which originated on, and spread to plaintiff’s property from, the premises of C.E.S. while Home Oil’s transport truck was delivering gasoline to storage tanks of C.E.S. Each defendant filed a cross-claim against the other in two counts, the first count seeking indemnity for any sum the cross-claimant was required to pay the plaintiff and the second seeking damages for injury to the cross-claimant’s property resulting from the fire.

Crystal Tire’s claim against Home Oil and C.E.S. was based upon, and submitted to the jury on, general negligence under the res ipsa loquitur doctrine. The cross-claim of each defendant against his codefendant was based upon, and submitted to the jury on, specific negligence and, as to the instructions of each on the counts for indemnity, required a finding whether such negligence was active or passive.

Home Oil’s cross-claim charged that C.E.S. was negligent (1) in locating and maintaining its gasoline storage tank in close proximity to lot lines; (2) in failing to provide and maintain a dike around the storage tank; (3) in failing to maintain a valve or vent on this tank which would function to allow the escape of vapor and gas therefrom; and (4) in failing to correct information given Home Oil by C.E.S. that it was out of gas. The cross-claim of C.E.S. charged that Home Oil was negligent (1) in allowing gasoline to overflow the storage tank of C.E.S. and spill out over its premises thus causing gas fumes to permeate the air; and (2) in racing its truck motor while undertaking to correct a defect therein when Home Oil knew, or should have known, that sparks would be emitted therefrom and cause the gas fumes to ignite and explode.

The first verdict returned by the jury was refused by the trial court because it apportioned plaintiff’s damages between the two defendants. This verdict was in two parts: (1) in favor of Crystal Tire for $251,000 which directed that of this amount C.E.S. pay $175,700 and Home Oil pay $75,-300; and (2) against each cross-claimant on his cross-claim. The next day, after further deliberation, the jury returned verdicts: (1) in favor of Crystal Tire and against C.E.S. on plaintiff’s claim and again assessed plaintiff’s damages at $251,000; (2) in favor of Home Oil and against Crystal Tire on plaintiff’s claim; (3) in favor of Home Oil on its cross-claim against C.E.S. and assessed Home Oil’s damages at $800; and (4) against C.E.S. on its cross-claim against Home Oil. These verdicts were accepted by the trial court and judgments entered accordingly. As indicated, these judgments were reversed on appeal and the cause remanded with directions. 465 S.W.2d at 535.

In accordance with these directions, the trial court accepted the first verdict which had been returned by the jury and entered a general judgment: (1) for $251,000 in favor of Cyrstal Tire and ágainst both defendants; and (2) against each cross-claimant on its cross-claim. After unavailing post-trial motions, defendants-cross-claimants appealed to this court. Within a few days thereafter, and in accordance with a stipulation between them, each of these appellants paid into the registry of the trial court for the benefit of Crystal Tire one-half of the amount of plaintiff’s judgment (with accrued interest), and this money has been disbursed by the circuit clerk to plaintiff. The stipulation provided, inter alia, that acceptance of this money by plaintiff “shall not waive, alter pr affect * * * the right of defendants, on appeal from said judgment, to litigate further all issues remaining between them regarding their respective claims against each other arising out of the subject matter of this action and the tender and deposit herein provided for.” Consequently, the appeals from the judgment in favor of Crystal Tire have been abandoned, leaving for review only the issues relative to the two cross-claims. We will deal with them separately. .

HOME OIL’S CROSS-CLAIM

In its first point, Home Oil contends it is entitled as a matter of law to judgment on its cross-claim against C.E.S. for both property damage and for damages awarded Crystal Tire against it, because, as a matter. of law, the negligence of C.E.S. was active and the negligence, if any, of Home Oil was passive.

Home Oil at no time moved the court for a directed verdict in its favor on its cross-claim against C.E.S., but joined in submitting its case to the jury on its claim against C.E.S. Accordingly, its point that it was entitled to judgment as a matter of law on its cross-claim was not preserved for appellate review. Stanziale v. Musick, 370 S.W.2d 261, 266[5] (Mo.1963). In any event, had the point been preserved, we would be impelled to find it without merit. Home Oil had the burden of proving its cross-claim. The evidence on which it relied was oral. Assuming, without deciding, that it made a submissible case, it was within the province of the jury to reject the evidence and find against Home Oil. Parsons Construction Co. v. Missouri Public Service Co., 425 S.W.2d 166, 172[7, 8] (Mo.1968).

Home Oil’s second point is that “the court erred in reading to the jury instruction No. 2 immediately after instruction No. 1 and before instruction No. 3, instruction No. 2 being the ‘[facts not assumed]’ instruction [MAI 2.02], which instruction, according to MAI, is to be given to the jury * * * immediately before the form of verdict instruction, which in this case was instruction No. 23.”

The Notes on Use require, as Home Oil asserts, that this instruction be given in every case immediately before the form of verdict instruction. This court has held that it was prejudicial error to fail to give MAI 2.02 (Brannaker v. Transamerican Freight Lines, Inc., 428 S.W.2d 524, 537[17— 20] (Mo.1968)) and has required strict adherence to the "Notes on Use” (Davis v. St. Louis Southwestern Railroad Co., 444 S.W.2d 485, 489 (Mo.1969)). Rule 70.01(d) requires, in part: “Original instructions which are to be given shall be consecutively numbered and shall be given as instructions of the court. Except where otherwise provided in Missouri Approved Instructions, they shall be given in such order as the court shall deem advisable.”

The record is not clear regarding the order in which the instructions were read to the jury. In preparation of the transcript of the record, the reporter did not set out, in their numerical order, the instructions given. They were arranged in four separate groups: (1) those given at the request of plaintiff (Nos. 4, 5, 7, 9 and 10); (2) those given at the request of Home Oil (Nos. 6, 11,12,13,14,17, 20 and 22); (3) those given at the request of C.E.S. (Nos. 8, 15, 16, 18, 19, 21); and (4) those given at the court’s direction (Nos. 2, 3 and 23).

If the instructions were given (read) to the jury in this order, then instruction No. 2 was not given “immediately before the form of verdict instruction,” (No. 23); instruction No. 3 (burden of proof, MAI 3.01, modified) separated the two. If the instructions were given (read) in the order of their consecutive numbering, as required by the Rule, then 20 instructions separated the giving of No. 2 from No. 23. The consecutive numbering of the instructions, except Nos. 2 and 3, follows a logical pattern in submitting the issues presented by the claim of plaintiff and the respective cross-claims of the defendants. We are inclined to the view that the court gave (read) the instructions in their numerical order, as the rule contemplates. In doing so, however, it did not give No. 2 at the point required by the Notes on Use applicable to MAI 2.02. This failure was error, as much so as a failure to give the instruction at all was in Brannaker v. Transamerican Freight Lines, Inc., supra. The number and nature of the several factual issues in this case illustrate the need for the giving of this instruction at the point required by its Notes on Use. Since it has not been made clear that no prejudice could have resulted from the failure to give this instruction at the point required, the error is presumptively prejudicial. The judgment in favor of C.E.S. on Home Oil’s cross-claim must be reversed and remanded for this reason if for no other.

This appellant next contends that the court erred in giving instruction No. 16, the verdict director of C.E.S. on its cross-claim against Home Oil for indemnity, because (1) it did not require a finding that the negligence of Home Oil was active negligence; and (2) the instruction was based upon damages being sustained by C.E.S. and not damages sustained by Crystal Tire.

The second reason why the giving of instruction 16 was error was not assigned as such in Home Oil’s motion for new trial and, therefore, is not preserved for review.

The issues presented by this instruction were resolved by a verdict and judgment in favor of, not against, this appellant, Home Oil. Home Oil is in no position to complain of an alleged error in an instruction submitting the cross-claim of C.E.S., since the verdict and judgment on this claim was in Home Oil’s favor. State ex rel. Francesconi v. Aetna Casualty & Surety Co., 350 S.W.2d 418, 420[5] (Mo.App.1961); Teachers Credit Union v. Hudson et aL, 450 S.W.2d 483, 484[2] (Mo.App.1970). Home Oil does not contend that the giving of instruction 16 prejudiced it in connection with its cross-claim against C.E.S. In the circumstances presented, we may not say that the error, if any, against this appellant in the giving of this instruction materially affected the merits of the action. Rule 84.13(b).

Home Oil’s last point is that “the court erred in giving * * * instruction No. 15 at the request of * * * C.E.S., because said instruction placed an undue burden upon defendant Home [Oil] to prove that plaintiff sustained damage before the jury could find in favor of Home [Oil] on its cross-claim for damages.”

C.E.S. asserts that this instruction did not, as Home Oil contends, direct a verdict for C.E.S. on Home Oil’s claim for its damages unless the jury found that plaintiff (Crystal Tire) suffered damage. C.E.S. argues that instead, it directed a verdict for C.E.S. on Home Oil’s cross-claim, which included both its claim for indemnity and for damage to its property, unless both the plaintiff and Home Oil sustained damages.

Instruction 15 is the only instruction tendered by C.E.S. to converse Home Oil’s claim and apparently it intended by this one instruction to converse both of Home Oil’s verdict directing instructions, No. 11 (for indemnity) and No. 13 (for damages to its delivery vehicle). C.E.S. was entitled to have the court give a separate converse for each of these two verdict directing instructions, but in combining the two to avoid increasing the number of instructions to be given, it inadvertently brought error into the case. Instruction 15 misdirected the jury, because it required the jury to find, before it could return a verdict for Home Oil on its cross-claim for damages to its property, that Crystal Tire also sustained damage, whereas Home Oil’s right to recover on that part of its cross-claim is not dependent upon whether Crystal Tire sustained damage. While Home Oil’s right to recover indemnity is dependent upon whether Crystal Tire sustained damage and whether the jury would find against Home Oil for such damages, its right to recover damages for injury to its property is not so dependent. But this instruction makes it so and thus misdirects the jury. It was error to give it.

C.E.S. insists that Home Oil could not have been prejudiced by instruction 15, because the uncontroverted fact is that Crystal Tire did sustain damage as a result of the fire and explosion. Whether or not Crystal Tire sustained damage was still a live issue for determination by the jury at the time the instructions were given. Plaintiff and both of these defendants tendered and the court gave instructions submitting this issue for resolution by the jury. Until resolved, the jury could find against the plaintiff on that issue, and it does not, in these circumstances, answer the question of whether the error was prejudicial to say that Home Oil could not have been prejudiced by a requirement that the jury find an uncontroverted fact. The error is assumed to be prejudicial and C.E.S., as proponent of the instruction, has failed to demonstrate that no prejudice could have resulted. Murphy v. Land, 420 S.W.2d 505, 507[5] (Mo.1967).

C.E.S.’S CROSS-CLAIM

In its first point, C.E.S. contends that the court erred to its prejudice on its cross-claim against Home Oil by admitting in evidence over its objection testimony of Marvin L. Salzenstein (1) regarding parts of a code of regulations or recommendations promulgated by the National Fire Protection Association relating to standards of practice for fire prevention and safety in connection with the storage of gasoline; and (2) regarding his opinion and conclusions, based upon speculation and guess, and matters not in evidence, as to what the gasoline storage tank of C.E.S., and its gauge, vent and other equipment might or could have caused, and what might or could have happened if these facilities were defective.

Mr. Salzenstein testified, over objection of C.E.S., that the National Fire Protection Association regulations “deal with” (1) normal venting of an 8000 gallon capacity above-ground gasoline storage tank, the size and of the type involved in this case, so that gasoline vapors would disperse to a safe location; (2) the requirement for emergency venting, in addition to normal venting for breathing purposes, where, as here, the tank is constructed with a strong roof (there was evidence that this tank did not have an emergency vent); (3) the requirement that a gasoline storage tank of this capacity, not protected by a water spray, be located not closer than 30 feet from property lines (a building on Crystal Tire’s property was shown to be seven feet from C.E.S.’s storage tank; and (4) the use of a dike around such a tank to contain its contents within the area in the event the tank should rupture (there is evidence that there was no dike around this tank but no evidence that the tank had ruptured).

The court overruled the objections of C.E.S. and admitted this evidence on the question of negligence on the theory that it had been shown to be, and was, evidence of custom and usage, the “usual and accepted practice in the industry.” C.E.S. contends and argues that it was not so shown, that no foundation was laid for the admission of evidence of rules and regulations of the National Fire Protection Association.

In Goslin v. Kurn, 351 Mo. 395, 173 S.W.2d 79, 86[9] (1943), this court said: “To make a custom effective it must be shown to have been general, uniform, certain, and notorious, known to the parties, or so general and universal in its character that knowledge must be presumed.” Later, referring to Goslin, supra, the court said in Davis v. Gatewood, 299 S.W.2d 504, 509[3, 4] (1957), “Proofs of a custom cannot be said to be sufficient to submit that issue to the jury unless there is substantial evidence to show that what is claimed to be custom amounts to a definite, uniform, and known practice under certain definite and uniform circumstances.”

Home Oil argues that it did lay a foundation for the admissibility of these rules and regulations, apparently contending that it did so by proof of Mr. Salzenstein’s qualifications as an expert. Proof of his qualifications does not supply the proof required for the admission of these rules and regulations as evidence of custom and usage in the industry. There was no evidence in this case to show that rules and regulations of the National Fire Protection Association represented the usual and accepted practice in the industry of those who store large quantities of gasoline in circumstances such as these. Furthermore, there was no effort made to make such proof. The admission of this evidence was error prejudicial to C.E.S.

The second part of the first point briefed by C.E.S., relates to the testimony of the witness Salzenstein as an expert in the field of fire prevention and safety in storing gasoline in large quantities. Much, but not all, of his testimony is based on an assumed condition of the tank’s breather vent and its content gauge, conditions not shown to have existed before or at the time of the explosion and fire. To the extent that it is not based on facts and adequate data, his opinion testimony was not admissible, Gaddy v. Skelly Oil Co., 364 Mo. 143, 259 S.W.2d 844, 848-853[7-12] (1953), and to this extent the trial court erred. To separate, identify and describe specifically the parts of this witness’s testimony which were admissible and which were not, would serve no useful purpose and would only lengthen unduly this opinion. These cross-claimants now have the benefit of the thoughts and briefs of their codefendants and thus may be guided intelligently as to the admissibility of this expert testimony in any new trial of the cross-claims.

The next point of C.E.S. is that the court erred, to its prejudice on its cross-claim, in excluding parts of the testimony of its witness, Kenneth Peterson, which would show that in the general area of the location of its business there were no “customs or accepted practices” relative to fire prevention and safety practices in connection with the storage above-ground of large quantities of gasoline.

After Home Oil’s objection to this evidence was sustained, C.E.S. made an offer of proof, as follows: “I’d like to make an offer of proof that if this witness was permitted to testify, he’ll testify that he has looked at 12 to 15 different stations with the same and similar type of gauge equipment on it and that further, he found that not one of the stations any trenching, ditching, or etc., and also that the tanks he found in the areas of business establishments within three to five feet and one particularly here in the City of Hillsboro, being a Zephyr Station, with the tanks, two 8500 gallon tanks within five feet of the Robinson Lumber Co. and two feet of the building next door.”

No more effort was made to lay the proper foundation for the admission of this evidence than there was to support the admission of the regulations and recommendations of the National Fire Protection Association tendered by Home Oil. This evidence was not admissible for the same reasons, but to exclude it “was unfair and plainly prejudicial in denying [C.E.S.] a refutation by evidence of like character as had been introduced by [Home Oil] in supporting [its cross-claim].” Gatzke v. Terminal Railroad Ass’n of St. Louis, 321 S.W.2d 462, 467 (Mo.1959).

C.E.S. also contends that the court erred in giving instruction No. 17, tendered by Home Oil, in that (1) it erroneously permitted the jury to find that Home Oil’s act of overfilling C.E.S.’s tank, as submitted in instruction No. 16, was passive, not active, negligence, when, as a matter of law, said act was active negligence; and (2) it is in conflict with the law of the case as declared by this court in Crystal Tire Co. v. Home Service Oil Co. et al, 465 S.W.2d 531, 533.

As to the second part of this point, C.E.S. has reference to what the court said in determining whether the res ipsa loqui-tur doctrine was available under the facts of this case to the plaintiff Crystal Tire against these two defendants. In holding that Crystal Tire had made a submissible res ipsa case against both Home Oil and C.E.S. we said: “In our opinion, a res ipsa loquitur case was established by the evidence against both defendants: (1) the filling of a tank with gasoline does not ordinarily result in an explosion if those in charge use due care; (2) at the time the explosion occurred, Home Service was in actual control of the instrumentalities (the truck and the tank) necessary for the filling operation, and C.E.S. had the right to control such instrumentalities; and (3) plaintiff was totally ignorant of the filling operation. We hold that plaintiff made a submissible case against both defendants under the res ipsa loquitur doctrine.”

What is said by the court on that issue is the law of the case as to Crystal Tire’s claim against both defendants. It is not the law of the case with respect to each defendant’s cross-claim against the other submitted on primary negligence. It is not binding on these defendants on the question of which one of them was guilty of active negligence and which passive. A jury could, under these facts, reach a result different from and inconsistent with what is said in the above quotation from Crystal Tire Co. v. Home Service Oil Co. et al., in determining the issues involved in the two cross-claims. Page v. Hamilton, 329 S.W.2d 758, 764 — 767[8—13] (Mo.1959).

With reference to the first part of this point, the question of whether Home Oil negligently overfilled the tank of C.E.S. was for the jury to decide, as was the related next question of whether this act, in the circumstances of this case, was active or passive negligence. It may not be said that the act hypothesized in instruction 16 was, considered with the other facts, active negligence as a matter of law. The contention of C.E.S. that instruction 17 authorized the jury to find that the act hypothesized in paragraph second of instruction 16 was pas- . sive negligence is without merit. Instruction 17 authorized the jury to find for Home Oil unless it believed, inter alia, that Home Oil was actively negligent, and in this respect the instruction was a true, although not exact, converse; it does not mention passively negligent except in connection with C.E.S. And, if the jury did not find the facts to be as hypothesized in instruction 16, this would not be a finding of passive negligence instead of active; it would be a finding of no negligence insofar as that submission is concerned.

C.E.S. next contends that the court erred, to its prejudice on its cross-claim, in giving instructions numbered 11 and 13 tendered by Home Oil, because, among other reasons, neither instruction was supported by sufficient substantial evidence.

Instructions 11 (for indemnity) and 13 (for property damage) submitted in the disjunctive identical wrongful acts and omissions which, if found by the jury, would, according to Home Oil’s theory, authorize a verdict for Home Oil. Those acts or omissions were that C.E.S. negligently: “[1] failed to maintain a vent on its storage tank that would allow the escape of vapor or gas, or [2] failed to provide and maintain a dike or drainage bed around its storage tank, or [3] placed and maintained the storage tank close to a lot line, or [4] represented that its storage facilities were empty, when in fact it had gasoline * *

Much of the evidence in support of these four alleged negligent acts or omissions came from the witness Salzenstein regarding the rules and regulations of the National Fire Protection Association, which we have held inadmissible because a proper foundation had not been laid for its admission. And some of the supporting evidence came from this witness as an expert based on assumed conditions not shown to have been supported by facts and adequate data, which we held also to be not admissible. Without this evidence there was not sufficient substantial evidence to support all of the disjunctive submissions. Furthermore, as to the submission of failure to provide and maintain a dike or drainage bed around the storage tank for the purpose of containing any gasoline that would spill from the tank, Home Oil concedes that the evidence is “that there was no gasoline whatsoever on the ground surrounding the surface tank.” Hence, not only was there no substantial evidence from which the jury could have found that the omission submitted in (2) constituted negligence or was the proximate cause of the explosion and fire, it flies in the face of the evidence.

While it is not clear that the submission of these acts and omissions in instructions 11 and 13, not all of which are supported by the evidence, were prejudicial to C.E.S. on its cross-claim, we consider the question close enough to justify these remarks for the benefit of the parties in the event of a new trial.

The last point of C.E.S. is that the court erred, to its prejudice on its cross-claim, in giving instruction No. 7 of plaintiff Crystal Tire. It would serve no useful purpose to consider and rule on this point, because Crystal Tire will not be a party in any new trial of these cross-claims and that or a similar instruction will not be given.

For the reasons stated, the judgment against each cross-claimant on its cross-claim is reversed and the cause is remanded.

SEILER, C. J., and MORGAN, HOLMAN, FINCH and DONNELLY, JJ., concur.

BARDGETT, J., concurs in result.

      . A more detailed statement of the pleadings and the facts may be found in 465 S.W.2d 531.

      . References to rules are to Missouri Supreme Court Rules, V.A.M.R.

      . This practice in preparation of the transcript avoids, as it did here, showing with each instruction in the transcript not only by which party it was tendered, etc., but also the notation whether it is an MAI instruction (with the MAI number), an MAI instruction modified (with the MAI number), or a “Not in MAI” instruction. Also, by so grouping the instructions the record may be rendered not clear as to whether an instruction required by the Rule and Notes on Use to be given at a certain point in the proceedings is so given. The practice is contrary to the letter and spirit of the Rule applicable to MAI, is condemned, and will not be tolerated.

      . Instruction No. 16 is as follows: “Your verdict must be for the defendant C.E.S. Truck Lines, Inc., on Count I of its cross-claim for indemnity against defendant Home Service Oil Company, whether or not defendant C.E.S. Truck Lines, Inc. was negligent, as submitted to you in instructions numbered 7 & 11 if you believe:
      “First, such negligence of the defendant C.E.S. Truck Lines, Inc. was passive and not active as that term is otherwise defined in these instructions, and “Second, defendant Home Service Oil Company filled the gasoline tank of the defendant C.E.S. Truck Lines, Inc. beyond its capacity, and thereby caused and permitted an unusual amount of gasoline and gasoline fumes to overflow said tank and permeate the area in the vicinity thereof, and
      “Third, defendant Home Service Oil Company was thereby negligent, and,
      “Fourth, as a direct result of such negligence defendant C.E.S. Truck Lines, Inc. sustained damage.”

      . Instruction No. 15 is as follows: “Your verdict must be for defendant C.E.S. Truck Lines, Inc. on defendant Home Service Company’s cross-claims unless you believe that defendant C.E.S. Truck Lines was negligent, and that plaintiff and Home Service Oil Company sustained damage as a direct result thereof.”

      . Instruction 17, Home Oil’s converse of instruction 16, is as follows: “Your verdict must be for defendant Home Service Oil Company on the cross-claim of defendant C.E.S. Truck Lines, Inc. for indemnity unless you believe that defendant Home Service Oil Company was actively negligent and defendant C.E.S. Truck Lines, Inc. was passively negligent as submitted in instruction No. 16, and that plaintiff sustained damage as a result thereof.”

      . See footnote 4 for instruction 16, C.E.S.’s verdict director on its cross-claim for indemnity.


author: BARDGETT, Judge.

text:
    STATE of Missouri ex rel. Bill WOODS et al., Relators, v. The Honorable Frank D. CONNETT, Jr., Judge of the Circuit Court, Fifth Judicial Circuit of Missouri, Division Number Three, Respondent.
    No. 58802.
    Supreme Court of Missouri, En Banc.
    July 14, 1975.

      Ronald M. Sokol, Public Defender, Fifth Judicial Circuit of Mo., Theodore M. Kran-itz, Kranitz & Kranitz, Richard W. Mason, St. Joseph, for relators.
    Richard A. Heider, Pros. Atty., St. Joseph, for respondent.
   BARDGETT, Judge.

This is an original action in prohibition and involves the question of whether or not respondent, a circuit judge, proceeded under the correct statutes when he convened a special grand jury in Buchanan County, and the validity of some twenty-eight indictments returned by that grand jury on May 31, 1974.

Pursuant to the indictments, warrants were issued for the arrest of relators on June 3, 1974. On June 5, 1974, or shortly thereafter, relators, as defendants in circuit court, filed motions to dismiss or quash the indictments alleging, inter alia, that the grand jury was not drawn and selected pursuant to § 540.020 which relators contend applies to Buchanan County.

A hearing was held on the motions by the trial court; the court made findings of fact and conclusions of law; but, prior to entering its order overruling the motions to quash and dismiss, afforded relators time to file a petition for writ of prohibition to prohibit the circuit court from proceeding to trial on the pending indictments. Rela-tors applied to the Missouri Court of Appeals, Kansas City district, for a writ of prohibition on July 3,1974, and a stop order was issued; but on August 7, 1974, the petition was denied without a hearing.

Relators filed the instant petition in this court on September 3,1974. Our provisional rule in prohibition issued and the case has been briefed and argued.

Relators contend that § 540.020 is the statute under which grand juries in Buchanan County, a second-class county, must be convened. Admittedly, the grand jury was not convened pursuant to § 540.020 but rather under §§ 495.010-495.030.

Section 495.010 applies, by its terms, to “counties of this state constituting a judicial circuit which have not less than seventy-five thousand nor more than two hundred thousand inhabitants and which contain a city or part of a city of more than seventy-five thousand inhabitants . (Emphasis supplied.)

Section 540.020, relating to grand juries and their proceedings, is a general statute applicable to the convening of grand juries in all counties to which another particular statute does not apply.

With respect to this case, the first question is whether, in 1974, Buchanan County satisfied the provisions of § 495.010 which require that it (a) constitute a judicial circuit and (b) contain a city or part of a city of more than 75,000 inhabitants. There is no question but what Buchanan County satisfies the other provisions of § 495.010.

For many years Buchanan County constituted a judicial circuit in itself. Bee § 478.-093, V.A.M.S.1969, Yol. 27, p. 268, and prior revisions thereof. In 1969 the general assembly changed the county makeup of certain circuits and enacted § 478.087, RSMo 1969, V.A.M.S. (H.C.S.H.B. 145, Laws of Mo.1969, pp. 554-555), which is as follows: “Circuit No. 5 — Circuit number five shall consist of the counties of Buchanan, Andrew and Clinton.” At the time the instant grand jury was convened, the fifth judicial circuit still consisted of the three counties noted and, therefore, Buchanan County was not a county constituting a judicial circuit.

The official U.S. census statistics show that St. Joseph, Missouri, which is and has been the largest city in Buchanan County, to have had a population in excess of 75,000 from 1900 through 1960. The 1970 U.S. census shows St. Joseph to have a population of 72,748. Official Manual, State of Missouri, 1973-1974, p. 1506. There is no other city in Buchanan County that has a population in excess of 75,000.

Section 1.100, RSMo 1969, as amended 1971, provides that the population of any political subdivision of this state “for the purpose of representation or other matters” is determined on the basis of the last previous decennial census of the United States. (Emphasis added.) The effective date of the census for purposes other than ascertainment of salaries is July 1 of the year next following the census year. The 1970 census for purposes other than salaries was effective July 1, 1971. Respondent argues that § 1.100 appears to be limited to representation and salary matters in individual counties and that the decennial population figures are therefore not applicable to statutes pertaining to the convening and regulation of grand juries.

Section 1.100(1) applies, by its terms, to certain specific situations and “other matters”. Section 1.100(2) provides that this statute is applicable to “[a]ny law which is limited in its operation to counties, cities or other political subdivisions, having a specified population . . . ” and provides that such a political subdivision, except for a city not within any county, which later acquires the requisite population comes within such a law as well as those in that category at the time the law was passed.

The court holds that § 1.100 is applicable to laws which designate a procedure for convening grand juries by utilizing specified population figures and that the official census figures of the last decennial census are generally controlling. Sections 71.160-71.180, RSMo 1969, V.A.M.S., authorize a special census of a city or town and provide that the special census results shall be the legal census of such city or town for all purposes whatsoever under the constitution and laws of this state. There was no special census in St. Joseph prior to the convening of the instant grand jury.

Respondent contends that St. Joseph acquired additional territory and population by annexation in 1972 which increased its population to in excess of 77,000. Relators agree that such is the case but contend that the official census figures nevertheless control on the question of the applicability of a particular statute which uses population as its criterion for use in the counties of this state.

Grand juries are an important part of the criminal justice system of this state and the people are entitled to have a grand jury convene and proceed under the appropriate statute. To permit the applicability of a statute to depend upon opinions of parties, even though they be in agreement, or evidence as to the population of a city or county as of a particular time, would not be conducive to the regularity, certitude, or validity of grand juries, their proceedings, or indictments returned by them.

When population is one of the criteria, it is necessary that there be an official document which can be readily referred to by courts, prosecutors, and others charged with the responsibility for convening and participating in grand jury matters. The official U.S. census is such a document and has been recognized as sueh by the legislature of this state in § 1.100.

The court holds that, except for the special census provisions of § 71.160, et seq., the last previous decennial census of the United States is controlling with respect to the population criteria set forth in statutes providing for the convening of grand juries in the counties of this state.

Buchanan County did not contain a city with a population in excess of 75,000 according to the decennial census of 1970 nor did it constitute a judicial circuit as of the time this grand jury was convened.

The court holds that §§ 495.010-495.030, the statutes under which the instant grand jury was convened, did not apply to Buchanan County. Section 540.020, RSMo 1969, is the statute that is applicable to Buchanan County grand juries.

Respondent contends that no error was committed in refusing to dismiss the instant indictments even if the grand jury was convened under an inapplicable statute because §§ 540.060 and 540.070, RSMo 1969, limit the grounds for challenge to a grand jury.

Section 540.060 provides:
“Any person held to answer a criminal charge may object to the competency of anyone summoned to serve as a grand juror, before he is sworn, on the ground that he is the prosecutor or complainant upon any charge against such person, or that he is a witness on the part of the prosecutor, and has been summoned or bound in a recognizance as such; and if such objection be established, the person so challenged shall be set aside.”
Section 540.070 provides:
“No challenge to the array of grand jurors, or to any person summoned as a grand juror, shall be allowed in any other cases than such as are specified in section 540.060.”

State v. Bleekley, 18 Mo. 428 (1853) supports respondent’s position. At the time Bleekley was decided, no person could be prosecuted for an indictable offense except by an indictment returned by a grand jury. Art. XIII, § 14, Mo.Const.1820. This was changed by Art. II, § 12, Mo.Const.1875, to allow for prosecution by information as well as by indictment.

Sections 540.060 and 540.070, quoted supra, were then sections 2 and 3 of Art. Ill, Practice & Proceedings in Criminal Cases, RSMo 1845, p. 863, and were relied on by the court in Bleekley in holding that the defendant could not question the manner of summoning grand jurors.

Bleekley was indicted at the October term, 1852, of the Circuit Court of Holt County. At the April term, Bleekley filed a plea in abatement alleging that the grand jury which found the indictment had not been summoned according to the statutes applicable to Holt County. The circuit court denied the plea; Bleekley was convicted by a jury and appealed contending the trial court erred in overruling his plea in abatement.

The grand jury in Bleekley was selected and impaneled under the general law regulating grand jurors which law was not applicable to Holt County. This court noted that chapter 45, § 48, R.S.1845, required that whenever a person charged with an offense is confined in jail two months before the regular term of the circuit court, the jailer must, without delay, inform the judge of such court who must cause a special term to be held for the trial of the prisoner. This court noted also that chapter 45, § 51, authorized the circuit judge to order a grand jury to be summoned at such special term.

The court then considered the right to a speedy trial and the power of the court to afford such trial under the statutes with respect to the court’s power to convene a grand jury, saying at 431:

“Now give the effect to the statute concerning jurors, or, as it is called, the ‘Uniform Jury Law,’ passed in 1851, for the government of some twenty-five counties in this state, where there are upwards of one hundred, which the defendant’s counsel contends for in this case, and we must virtually deprive the courts from ever holding a special term for criminal business, in the counties under this ‘Uniform Jury Law;’ for no grand jury can be summoned at such terms — no indictment found; and the prisoner must still remain in jail, though it is more than two, or even more than four months, to the next regular term.
“The legislature never designed this; they never anticipated such an event; they supposed all objection to juries, either grand or petit, must, under the laws of the state, be made at the time when about to be sworn, and for the causes in the statute mentioned. The court, then, very properly, sustained the demurrer to the plea in abatement filed herein.”

As noted supra, an accused could not be tried in this state for an indictable offense except upon indictment by a grand jury until the constitution was changed in 1875. With that background, it is readily understandable why this court in 1853 did not abate the indictment. It appears that the court believed the criminal justice system would be brought to a halt or that there would be unacceptable delays in the charging process which would seriously and adversely affect an accused’s right to a speedy trial. This situation no longer exists. Persons may now be charged by informations which do not require grand jury action.

In the instant case, as in Bleekley, the grand jury was convened under a statute that did not apply to the county in which the grand jury was convened. Consequently, there is no issue concerning substantial compliance with an applicable statute, as the applicable statute was not used at all. There is no longer any compelling reason why this court should allow wholly inapplicable statutes to be used in the convening of grand juries.

This court is of the opinion, contrary to Bleekley, that §§ 540.060 and 540.070 were not intended to foreclose objection to indictments where wholly inapplicable statutes are used in the convening of a grand jury if the objection on that ground is timely made prior to trial.

To the extent that Bleekley approves the use of an inapplicable statute for convening grand juries in the counties of this state when objections to the indictments are timely made prior to trial, it is overruled.

In State v. Crane, 202 Mo. 54, 100 S.W. 422 (1907); State v. Connell, 49 Mo. 282 (1872); State v. Camila, 316 Mo. 213, 292 S.W. 721 (1926) and State v. Hemphill, 460 S.W.2d 648 (Mo.1970), cited by respondent, this court upheld the validity of indictments against contentions which this court considered to be mere irregularities in the convening, summoning, and makeup of grand juries. Sections 540.060 and 540.070 were relied upon as the statutory mandate foreclosing such objections. It does not appear in the cases noted supra that the grand jury was convened under a totally inapplicable statute. However, that is what happened in the instant case and in Bleekley and that is the issue the court rules in this case.

In these circumstances, the court does not consider the cases noted supra, other than Bleekley, directly in point, and Bleekley is overruled.

What then is the status of the instant indictments? There was, at least, a de facto grand jury that did return indictments into the circuit court. The “salutary purpose” of §§ 540.060 and 540.070, as set forth in Connell, Bleekley and Crane, supra, was to prevent verdicts from being set aside and new trials granted for frivolous and unsubstantial reasons in the matter of selecting a grand jury.

As indicated, the court does not consider the use of an inapplicable statute to be frivolous and unsubstantial any more than the court considers the failure to afford a preliminary hearing prior to the filing of an information to be a frivolous or unsubstantial defect. See State ex rel. Buresh v. Adams, 468 S.W.2d 18 (Mo. banc 1971). Nevertheless, if a defendant proceeds to trial without objection to the failure to afford a preliminary hearing, he has waived his right to that hearing and will not be heard to complain of that defect after verdict. State v. Richardson, 347 S.W.2d 165, 169 (Mo.1961); State v. Thomas, 353 Mo. 345, 182 S.W.2d 534 (1944); State v. Ferguson, 278 Mo. 119, 212 S.W. 339 (Mo. banc 1919).

By the samé token, had the instant rela-tors proceeded to trial without objection, they would have waived whatever defects that occurred with respect to the grand jury. We say this here in order that the court will not be understood to be allowing objections to grand jury indictments, such as we have here, to be withheld until after convictions and then utilized in an effort to overturn the convictions.

The court holds the indictments in the instant case to be voidable but not void' ab Initio. The instant motions to dismiss the indictments were timely filed and are not based upon frivolous or unsubstantial grounds.

The use of § 495.010 by the county authorities in this case is understandable for Buchanan County had proceeded under that statute during the time it constituted a judicial circuit and St. Joseph had a decennial census of over 75,000, a period of over forty years. Understandable though it may be, the use of the inapplicable statute cannot be approved, for to do so would, in effect, allow a county to pick from among the various statutes the one it found convenient and disregard the statute which the legislature mandated for use in that county.

It is of paramount importance to the regularity and finality of the progressive steps in our criminal justice system that grand juries be convened and regulated under the statute applicable to the county in question.

The court erred in overruling the rela-tors’ motions to quash the subject indictments. In view of the disposition made herein, the other contentions of relators need not be reached.

This court’s provisional rule in prohibition should be made absolute. It is so ordered.

All of the Judges concur.


author: SEILER, Judge.

text:
    STATE of Missouri, Respondent, v. James CODY, Appellant.
    No. 58753.
    Supreme Court of Missouri, En Banc.
    July 14, 1975.
    John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Joseph Langworthy, James Cody, Pacific, Mo., for appellant.
   SEILER, Judge.

Appellant was charged in a two count information with stealing a truck by bypassing the ignition, and stealing $5,000 worth of stainless steel which appellant had loaded onto the truck. Both the truck and the steel were taken at the same time and place from the premises of Lyon Sheet Metal Works, Inc., the lawful owner of the stolen property. Appellant moved for consolidation of the two counts on the ground that they constituted only one offense. The trial court overruled the motion and after the state indicated that it was prepared to prove the above-stated facts surrounding the stealing, appellant pleaded guilty to both counts. The court denied defense counsel’s requests for a presentence investigation and consideration for probation, and sentenced appellant to two years on each count, the sentences to run concurrently.

Appellant raises two points for our consideration: first, that the trial court erred in overruling his motion for consolidation, in that the convictions and sentences on two counts where only one offense was indicated violated his right against being put twice in jeopardy for the same crime. Second, appellant contends that the trial court erred in refusing to permit appellant to make a formal application for probation, and by refusing to grant probation.

We shall examine appellant’s second contention first. Appellant admits that he enjoys no right to receive probation, but maintains that he should have been given consideration for probation. Before sentence and judgment were pronounced, the trial court offered appellant allocution, at which time the following occurred:

“Mr. Langworthy [defense counsel]: I’d like to ask for a presentence investigation for consideration of probation and parole on this count.

“The Court: Mr. Langworthy, you had, of course, prior to going on the record, indicated that you would request that. The Court is considering it, and has considered it, and in view of the great amount of property that was stolen, we are going to deny your request for a pre-sentence investigation and for consideration of parole in this case.”

Appellant contends that the court’s decision to deny probation was an arbitrary and capricious exercise of the court’s power, made without consideration of relevant factors, such as appellant’s age (eighteen) and the fact that he was a first offender. Appellant urges this court to adopt “at least a minimum, prospective rule that a first offender, convicted of a non-heinous crime, is entitled to realistic consideration for probation if he requests it.”

Section 549.071, RSMo.1969, V.A. M.S., provides that “When any person of previous good character is convicted of any crime . . .”, the trial court, “ . if satisfied that the defendant, if permitted to go at large, would not again violate the law, may in its discretion . . . place the defendant on probation . . . ” The granting or withholding of probation is discretionary with the trial judge, McCulley v. State, 486 S.W.2d 419, 422-3 (Mo.1972). In Benson v. State, 504 S.W.2d 74 (Mo.1974), the defendant argued that the trial court, in denying probation, had delegated its judicial discretion to the parole officer who prepared the presentence report. Finding no support for this claim in the record, the court stated, 504 S.W.2d at 76: “In disposing of this case, we do not want to be understood as reviewing on appeal the determination by the trial court as to whether to grant or deny probation. Such determination is not subject to appellate review [Sec. 549.141, RSMo. 1969]. The trial court is not even required to consider probation but under the statute has the right to do so. If he does, it is for the trial court to determine whether probation is to be granted or refused.”

We are thus unwilling to hold that a trial court is required to consider probation in each case, even where the defendant is a first offender, where the relevant statutes do not so require. Nor can we review the trial court’s decision granting or refusing probation,' Sec. 549.141, supra.

Appellant’s next contention, that the trial court erred in failing to sustain his motion for consolidation of counts, is meritorious. The general rule is as stated in 52A C.J.S. Larceny § 53, p. 479: “Where several articles are stolen from the same owner at the same time and place, only a single crime is committed, and the taking of separate articles belonging to the same owner from different places in the same building, pursuant to a single criminal impulse, usually is held to constitute a single larceny.”

In State v. Wagner, 118 Mo. 626, 24 S.W. 219 (1893), the indictment was in two counts, one charging the defendant with stealing the victim’s wallet, and the other charging the defendant with stealing the same victim’s pocketknife at the same time and place. The court ruled, 24 S.W. at 220: “If the articles mentioned in the indictment were all taken at the same time and place, and from the same person, such taking would amount to but one larceny, and consequently all of the articles alleged to have been stolen should have been inserted in one count, and their taking charged as one offense.” Accord, Lorton v. State, 7 Mo. 55 (1841). And compare State v. Moton, 476 S.W.2d 785, 790 (Mo.1972), where the defendant was convicted of robbing one man, although he had earlier been convicted of helping rob another man on the same occasion, holding that the robbery of the first man was a separate and distinct offense from the robbing of the second and did not involve double jeopardy, with State v. Toombs, 326 Mo. 981, 34 S.W.2d 61, 66 (1930), where the court reversed a conviction for fraudulently issuing an unauthorized stock certificate, where the defendant had earlier been convicted of issuing another false certificate, in the same company and on the same occasion, the two certificates being identical except for the serial number, the court saying that even though there was not absolute identity in indictment and proof, there was only one offense: “ . . . the proofs in the two prosecutions need not be identical, and this is necessarily so. Otherwise the state could split up a single crime and prosecute as many times as there were parts into which the offense was susceptible of being divided, and a prosecution for one part would not bar a subsequent prosecution for another part, because there would not be absolute identity either in the indictment or the proof . . . ”

In granting relief as to count II, we do not wish to be understood as giving sanction to a general right to appeal from a plea of guilty. We do not disturb the rule in Missouri that a plea of guilty voluntarily and understandingly made waives all non-jurisdictional defects and defenses. Robinson v. State, 491 S.W.2d 314 (Mo.1973). The claim of double jeopardy, however, “ . . . is an assertion of a constitutional grant of immunity”, Weaver v. Sehaaf, 520 S.W.2d 58, 68 (Mo. banc 1975), quoting with approval from McCabe v. Bronx County Court, 24 Misc.2d 472, 199 N.Y.S.2d 241, 245-6 (1960). In Robinson v. Neil, 409 U.S. 505, 509, 93 S.Ct. 876, 878, 35 L.Ed.2d 29, the Supreme Court explained that the constitutional guarantee against double jeopardy is “significantly different” from the constitutional guarantees pertaining to procedural rights, saying that “while this guarantee [double jeopardy], like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial.” This language was cited with approval in Blackledge v. Perry, 417 U.S. 21, 30-31, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628, where the court was dealing with constitutional claims which go “to the very power of the State to bring the defendant into court to answer the charge brought against him” and stated that what was said in Robinson v. Neil above “aptly describes” the practical result which obtains in such situations. Hence, the trial court was without power or jurisdiction to try the defendant twice for the same offense in the case before us.

Appellant’s guilty plea was accepted and sentence imposed on count I of the information before such action was taken with respect to count II. Under the foregoing authorities, the conviction had under Count II constituted a violation of his right not to be twice punished for the same offense. The judgment imposed on count II is therefore reversed and judgment on count I is affirmed.

All of the Judges concur.


author: HENLEY, Judge. BARDGETT, Judge

text:
    KANSAS CITY, Missouri, Respondent, v. William C. McCOY, Appellant.
    No. 58650.
    Supreme Court of Missouri, En Banc.
    July 14, 1975.

      Aaron A. Wilson, City Atty., Louis W. Beneeke, City Prosecutor, Walter J. O’Toole, Jr., Asst. City Prosecutor, Kansas City, for respondent.
    Robert L. Shirkey, Kansas City, for appellant.
   HENLEY, Judge.

This case involves the question of whether, in the trial of an accused for violation of a municipal ordinance, the confrontation clause of the sixth amendment to the federal constitution requires that an expert witness giving testimony against him be physically present in court.

William C. McCoy (defendant) was charged with, tried in the municipal court, and convicted of possession of marijuana in violation of § 18.152 of the revised ordinances of the city of Kansas City, Missouri. He appealed to the circuit court of Jackson county and, upon trial de novo with the same evidence, was again found guilty and sentenced to imprisonment for 30 days at the municipal farm. From that judgment of conviction he appealed to this court claiming that a determination of the issues involves construction of the confrontation clause of the sixth amendment to the constitution of the United States. We affirm.

Defendant was arrested for two traffic offenses. In the process of “booking” him on those charges he was searched by a police officer preparatory to incarceration pending arrangements for his release on bail. During this search a plastic bag containing a substance which appeared to be marijuana was found on his person. Chemical analysis of this substance confirmed that it was marijuana and the instant charge was filed.

The evidence of the city that the substance found on defendant’s person was in fact marijuana was presented to the municipal court, and later to the circuit court on appeal, by means of closed circuit television connecting the courtroom with the police crime laboratory approximately 12 miles from the courthouse.

Dr. Mattias Yoong, the city’s witness, was located in an office at the crime laboratory while testifying in response to questions propounded by city’s counsel, who was located in the courtroom. Present in the courtroom during this witness’s testimony, in addition to the city attorney, were the judge, the defendant, his attorneys, and several spectators, unidentified except that two were reporters for news media. Present in the crime laboratory office while Dr. Yoong was testifying were the Director and assistant Director of the laboratory and two other chemists. The electronic equipment used in this presentation which was visible in the courtroom and in the crime laboratory, consisted of two stationary television cameras, two monitors which appear to be ordinary television sets and microphones for use by the judge and counsel located in the courtroom, and a camera, monitor and microphone located in the laboratory.

During the examination of Dr. Yoong by counsel, each could see and hear the other as well as see and hear and be seen and heard by the trier of fact (the judge) and the defendant, the transmission of the images and the voices being instantaneous. As presented in this court, the picture and voices were clear and distinct.

Dr. Yoong testified on direct examination, over objection of defendant based on the above-stated sixth amendment grounds, that he had made a chemical analysis of the substance taken from defendant’s person and determined that it was marijuana. Defendant’s counsel had ample opportunity to cross-examine the witness but declined to do so. In addition to his objection to Dr. Yoong’s testimony on sixth amendment grounds, defendant also contends that this testimony was not admissible because it was not the best evidence since the witness was not physically present.

Referring to this right of an accused, the Supreme Court of the United States said in Mattox v. United States, 156 U.S. 237, 242, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895):

“The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. There is doubtless reason for saying that the accused should never lose the benefit of any of these safeguards even by the death of the witness; and that, if notes of his testimony are permitted to be read, he is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the ease.
* * * sfc * *
“We are bound to interpret the constitution in the light of the law as it existed at the time it was adopted, not as reaching out for new guaranties of the rights of the citizen, but as securing to every individual such as he already possessed as a British subject — such as his ancestors had inherited and defended since the days of Magna Charta. Many of its provisions in the nature of a bill of rights are subject to exceptions, recognized long before the adoption of the constitution, and not interfering at all with its spirit. Such exceptions were obviously intended to be respected. A technical adherence to the letter of a constitutional provision may occasionally be carried farther than is necessary to the just protection of the accused, and further than the safety of the public will warrant.” See also: Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934); Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972).

In Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965) the court, considering a claim of denial of the sixth amendment right of confrontation, struck down a prosecutor’s tactic of calling a convicted accomplice of the defendant to the witness stand, securing a refusal to testify, and then using the refusal as a springboard to read the accomplice’s alleged confession into the record without affording the defendant an opportunity to cross-examine. But in discussing the right, the court also said: “Our cases construing the clause hold that a primary interest secured by it is the right of cross-examination; an adequate opportunity for cross-examination may satisfy the clause even in the absence of physical confrontation.” 380 U.S. at 418, 85 S.Ct. at 1076. (emphasis supplied)

The Supreme Judicial Court of Massachusetts in Commonwealth v. Harvard, 356 Mass. 452, 253 N.E.2d 346[7, 8] (1969), a case involving an appeal from a conviction of possession of marijuana, held that the right of confrontation was not denied by the admission in evidence of a certificate of the state’s Department of Public Health that its analysis of the contents of a bag showed that it was marijuana. 253 N.E.2d at 351— 352.

These cases all involve convictions of felonies under the general law; here, we are concerned with a case involving prosecution and conviction of violating a municipal ordinance, a proceeding said to be “civil in nature, although somewhat criminal in respect to some of the prescribed procedure.” Delaney v. Police Court of Kansas City, 167 Mo. 667, 67 S.W. 589, 591 (1902); State ex rel. Cole v. Nigro, 471 S.W.2d 933, 936[2] (Mo. banc 1971).

We have the view that to require the physical presence of an expert witness against one accused of violating a municipal police regulation would be to require more than the confrontation clause rights of an accused demand in many instances of prosecutions for felonies. Today we have means of communication not available only a few years ago. We can now by electronic means project the image and voice of man clearly and distinctly at the speed of light and control that means and insure its integrity by closed circuit and monitors. While Dr. Yoong was not physically present in the courtroom, his image and his voice were there; they were there for the purpose of examination and cross-examination of the witness as much so as if he were there in person; they were there for defendant to see and hear and, by the same means, simultaneously for him to be seen and heard by the witness; they were there for the trier of fact to see and hear and observe the demeanor of the witness as he sat miles, but much less than a second, away responding to questions propounded by counsel.

The court did not err in the admission of • this evidence by use of closed circuit television.

Relying principally on Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), defendant also contends that he was denied due process of law guaranteed by the fifth and fourteenth amendments to the constitution of the United States in that (1) a television camera was within ten feet of him; (2) two reporters were in the courtroom taking notes; and (3) a microphone on the counsel table within two feet of him inhibited private communication with his counsel. This, defendant says, created a spectacle, a circus atmosphere in the courtroom.

The judge who heard the case in the de novo trial was presented the same evidence and found that “[t]he atmosphere in the courtroom * * * was calm, judicial decorum was maintained throughout the proceedings, and the electronic equipment was installed in an unobtrusive manner ⅜ and “that there was no circus atmosphere in the courtroom, and nothing remotely approaching the circumstances in the Sheppard case * * Our review of the record persuades us that the circuit judge’s findings and conclusions were not erroneous.

The defendant had a fair trial and was not denied due process by the presence of reporters and the location and use of the described electronic equipment.

The judge presiding at the de novo trial found also that defendant and his counsel did confer privately at the counsel table notwithstanding the close proximity of the microphone; that he (the judge) actually observed them conferring, but their conversations were not recorded on the video tape. Our conclusion from our review of this record agrees with the finding of the trial judge. There was no invasion of the attorney-client privilege by the location of this microphone and the point is ruled against defendant.

Defendant’s next point is that “[t]he involuntary reproduction of defense counsel’s image and voice is contrary to the canons of ethics (Rule 4, Code of Professional Responsibility), and contrary to Rule 2.35, canons of judicial ethics (now Rule 2, Code of Judicial Conduct), which state that televising of court proceedings should not be permitted.”

The Code of Professional Responsibility (DR 2 — 101) bans publicity or public advertising by a lawyer calculated to attract clients; the ban is rooted in the public interest. This closed circuit television was not available for general view by the public; it was “closed” to the public. The record discloses that while the microwave beam by which the picture and sound were projected across country could be intercepted by anyone, as defendant says, to do so, the intercepter would have to have and know how to use very expensive and highly sophisticated electronic equipment; an ordinary television set generally available to and used by the public would not suffice. The type of projection of counsel’s image and voice employed in this case is not that which Rule 4 proscribes. Nor is it the type of “televising” proscribed by Rule 2.35 (now Canon 3, subd. A(7) of Rule 2, Code of Judicial Conduct) relating to the televising of court proceedings.

Defendant’s last point is that the court erred in admitting in evidence the marijuana found on his person, because it was “illegally and unconstitutionally seized.” The search and seizure in this case, like that in State v. Darabcsek, 412 S.W.2d 97 (Mo.1967), was made as a part of the “booking” procedure in connection with defendant’s arrest for another offense and was preparatory to his incarceration. The search in that case also produced evidence of unlawful possession of a drug. In Dar-abcsek, supra, the court approved the search and seizure, holding that it was a reasonable procedure for the protection of other prisoners, attendants, and the defendant himself. There is no merit in the point.

The judgment is affirmed.

HOLMAN, FINCH and DONNELLY, JJ., concur.

BARDGETT, J., dissents in separate dissenting opinion filed; SEILER, C. J., and MORGAN, J., dissent and concur in separate dissenting opinion of BARDGETT, J.

BARDGETT, Judge

(dissenting).

I respectfully dissent. This appeal comes here basically as a “test” case in which the prosecuting authorities in Kansas City seek to find out if the presentation of oral testimony over closed circuit television where the witness is not present in court is permissible under the confrontation clause of the U.S. Constitution, Amendment VI. Defendant nowhere asserts rights under the Constitution of Missouri 1945, Art. I, See. 18(a), V.A.M.S., and, therefore, the principal opinion does not consider the issues under the Missouri Constitution.

I realize that the principal opinion is narrowly drawn so as to restrict the holding to the confrontation clause of the U.S. Constitution, Amendment VI, and then only to a prosecution for a municipal ordinance violation where the witness utilizing closed circuit television is in the “expert” category and the proceeding is characterized as “civil in nature, although somewhat criminal in respect to some of the prescribed procedure.”

In my opinion, the facts of this case do not portray a sufficiently clear picture of the use of closed circuit television with respect to confrontation and cross-examination rights under the Sixth Amendment for this court to really come to grips with the problem.

Here, there was no serious contention that the substance was not marijuana and defense counsel did not even undertake to cross-examine the expert witness. We do know that there were four people in the room with the witness who were not shown on television, and there was no representative of the defendant there at all. We also know that there can be no handling of exhibits between either counsel and the witness. The “demeanor” of a witness comes across differently over television than when the witness is personally present in court. The foregoing are merely some of the defects, as I see it, that are apparent from viewing the television tape.

Under the facts of this case and the manner in which the defendant’s attorney conducted the defense, I question whether there was any prejudice to the defendant from the use of closed circuit television where the testimony was restricted to identifying a substance as marijuana and where the defendant’s attorney made no effort to cross-examine this witness or any other witness as to the identity of the substance.

Nevertheless, the principal opinion will function as an approval of a procedure which, under the facts of this case, is not shown to protect or satisfy the confrontation and cross-examination rights of a defendant under the U.S. Constitution, Amendment VI, and, therefore, I dissent.

      . He was released on his own recognizance by the municipal court pending final disposition of these appeals.

      . The video tape of the presentation of this evidence was preserved, made a part of the transcript on appeal, and was viewed and heard by this court when the case was argued.

      . Canon 3 A(7)(a) of Rule 2 (effective July 1, 1975) provides that the trial judge may authorize the use of electronic and photographic means for the presentation of evidence.


author: FINCH, Judge.

text:
    In re James PENDERGAST, Respondent.
    No. 58900.
    Supreme Court of Missouri, En Banc.
    July 14, 1975.
    Downs, Pierce & Turner, John E. Downs, St. Joseph, for respondent.
    Joseph K. Houts, St. Joseph, G. Raymond Speckman, Plattsburg, Franklin T. Thack-ery, St. Joseph, L. Glen Zahnd, Savannah, for Fifth Judicial Circuit Bar Committee.
   FINCH, Judge.

This is an original- proceeding initiated by the Fifth Judicial Circuit Bar Committee pursuant to Rule 5 seeking disbarment or discipline of respondent.

An information, filed following a formal hearing conducted on May 24, 1974, charges defendant with violating Rule 4 and more particularly DR 1 — 102(A)(4), DR 6— 101(A)(3) and DR 9-101(A)(2), these being disciplinary rules which provide that a lawyer will not engage in deceit or misrepresentation, that he will not neglect a legal matter entrusted to him and that he will preserve and protect the identity of funds of the client. The information also alleged failure on the part of respondent to pay annual enrollment fees as a lawyer.

Respondent filed an answer in which he admitted the factual allegations in the information but stated that while he had been remiss and dilatory, he did not feel that such conduct would prevent, him from being entrusted with the duties and responsibilities of an attorney. He alleged that he would pay up his bar enrollment dues when financially able to do so. The answer stated that respondent did not desire to contest the matter, that the appointment of a master to hear testimony was unnecessary and that the matter could be considered and resolved on the basis of the information filed together with the record of the formal hearing held by the Bar Committee.

At the May 24 hearing Mrs. Sharon Mos-er testified that in February 1973 she employed respondent to handle a divorce for her. She paid him his attorney fee plus filing fees. Thereafter, Mrs. Moser called respondent at various times about her case and was advised that respondent was going to get it filed but when she checked at the clerk’s office she was advised the case had not been filed. Other calls produced various excuses for not handling the matter. She finally filed a complaint with the Committee.

Mr. Jack Martin testified that he and his wife hired respondent approximately 14 months prior to the hearing to handle proceedings whereby Martin would adopt two children by his wife’s first marriage. They paid him his attorney fee plus court costs. In response to repeated calls from Mr. or Mrs. Martin, respondent advised on various occasions that he had filed the action, but when the Martins checked at the court, they found that the case had not been filed. Finally, the Martins filed their complaint with the Bar Committee.

Testimony disclosed that respondent used all of the funds paid to him by these two clients including filing fees for payment of personal bills.

Both of these cases were filed on or immediately after the formal hearing and material filed with the court discloses that thereafter respondent, with the consent of Mrs. Moser and the Martins, handled their proceedings to satisfactory conclusions.

In addition, respondent has not paid his bar enrollment fees for many years, although Rule 6 expressly mandates the payment of such fees.

As in many such cases, various mitigating circumstances are urged. It appears that respondent during the period of his troubles had a drinking problem which it is claimed he has now cured. It also is urged that respondent renders legal services for modest fees to people who allegedly may have trouble in obtaining legal representation. We have taken these things into account but cannot dismiss this proceeding and impose no discipline. Respondent urges that as in the case of In re O’Brien, 478 S.W.2d 310 (Mo. banc 1972), we should dismiss the case and not discipline respondent, but we conclude that under all the facts, some disciplinary action is called for.

It is ordered that respondent be suspended indefinitely from the practice of law, with leave to apply for reinstatement after expiration of six months from the date of rendition of this decision upon a showing that he is a person of good moral character and that he is fully qualified to be licensed as a member of the bar of Missouri, including a showing that he is then in good standing with reference to his obligation for bar enrollment fees. .

All concur.

      . All references to rules are to Supreme Court Rules, V.A.M.R.