author: DONNELLY, Judge. SEILER, C. J.,

text:
    CITY OF KANSAS CITY, Missouri, Respondent, v. Robert J. DARBY, Appellant. CITY OF KANSAS CITY, Missouri, Respondent, v. Edgar E. HERZMARK, Appellant.
    No. 59595.
    Supreme Court of Missouri, En Banc.
    Dec. 13, 1976.
    Rehearing Denied Jan. 10, 1977.
    Donald V. Pierce, Jr., Thomas W. Tier-ney, Kansas City, for appellant.
    Daniel G. Jackson, III, Associate City Atty., David C. McConnell, Asst. City Prosecutor, Kansas City, for respondent.
   DONNELLY, Judge.

These cases involve the law relating to obscenity. The judgments of conviction were affirmed by the Missouri Court of Appeals, Kansas City District. On June 15, 1976, both cases were transferred to this Court by this Court. They will be determined here “the same as on original appeal.” Mo.Const. Art. V, § 10.

CITY OF KANSAS CITY vs. DARBY:

Robert J. Darby was charged in the Municipal Court of Kansas City, Missouri, with exhibiting an obscene motion picture on August 9, 1973, in violation of an ordinance of Kansas City. He was tried in the Municipal Court, without a jury, and was convicted. He appealed to the Circuit Court of Missouri, Sixteenth Judicial Circuit.

In the Circuit Court, Darby filed several pre-trial motions. Among these was a Motion to Dismiss which asserted, in part, that the charges pending against him should be dismissed because he “was denied in the Municipal Court trial below the right to have community standards with regard to the question of obscenity determined by a jury * * *.” The motion to dismiss was overruled, the cause proceeded to trial before a jury, Darby was convicted, and his punishment was fixed at “hundred twenty days confinement, five hundred dollar fine.”

The parties agree that the Municipal Court was barred by ordinance from providing Darby with a trial by jury.

In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the United States Supreme Court reformulated the constitutional tests for determining obscenity under the First and Fourteenth Amendments to the Constitution of the United States. In Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), the Court explained the Miller holding. In McNary v. Carlton, 527 S.W.2d 343 (banc 1975), this Court construed Miller, as explained in Hamling, to mean that, in determining obscenity under the First and Fourteenth Amendments, a jury determination of contemporary community standards is constitutionally required.

Accordingly, we must conclude that a constitutionally acceptable determination of obscenity cannot be made in the Municipal Court in Kansas City because no jury is available.

The question presented in the Darby case is whether this constitutional deficiency can be cured by the process of allowing an appeal to the circuit court and making a jury available there.

In Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1888), Callan was charged with conspiracy in the Police Court of the District of Columbia and convicted. He perfected an appeal to the Supreme Court of the District of Columbia (in which a trial by a jury would have been available to him), withdrew the appeal and was committed to the custody of the Marshal. On appeal to the United States Supreme Court, he contended “that the Constitution of the United States secured to him the right to be tried by a jury, and, that right having been denied, the police court was without jurisdiction to impose a fine upon him, or to order him to be imprisoned until such fine was paid.” The Supreme Court sustained his contention, and said (127 U.S., at 557, 8 S.Ct. at 1307):

“ * * * Except in that class or grade of offences called petty offences, which, according to the common law, may be proceeded against summarily in any tribunal legally constituted for that purpose, the guarantee of an impartial jury to the accused in a criminal prosecution, conducted either in the name, or by or under the authority of, the United States, secures to him the right to enjoy that mode of trial from the first moment, and in whatever court, he is put on trial for the offence charged. In such cases a judgment of conviction, not based upon a verdict of guilty by a jury, is void. To accord to the accused a right to be tried by a jury, in an appellate court, after he has been once fully tried otherwise than by a jury, in the court of original jurisdiction, and sentenced to pay a fine or be imprisoned for not paying it, does not satisfy the requirements of the Constitution. When, therefore, the appellant was brought before the Supreme Court of the District, and the fact was disclosed that he had been adjudged guilty of the crime of conspiracy charged in the information in this case, without ever having been tried by a jury, he should have been restored to his liberty.”

We consider the Callan holding extremely persuasive. If it is to be followed, Darby should be discharged.

First, however, we must consider the possible impact of Ludwig v. Massachusetts, - U.S. -, 96 S.Ct. 2781, 49 L.Ed.2d 732, decided by the United States Supreme Court on June 30, 1976.

In Ludwig, the accused was convicted in the District Court of Northern Norfolk in a proceeding in which no jury was available. He then asserted his statutory right to a trial de novo before a jury. In the de novo proceeding he asserted that he had been deprived of his federal constitutional right to a speedy jury trial in the first instance, and that he had been subjected to double jeopardy. At the second trial he was again convicted. The Supreme Court of the United States rejected his assertions and held that the Massachusetts “two-tier” court system violated neither his Fourteenth Amendment right to a trial by jury nor the double jeopardy clause of the Fifth Amendment. The significant language in Ludwig, for our purposes, is as follows (-U.S. at -, 96 S.Ct., at 2787, 49 L.Ed.2d at 741):

“Our disposition of this case does not require us to disturb the holding in Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1888). In Callan, this Court considered the validity of a District of Columbia two-tier trial system that provided for trial by jury only in the second tier. The Court announced: ‘Except in that class or grade of offences called petty offences, which, according to the common law, may be proceeded against summarily in any tribunal legally constituted for that purpose, the guarantee of an impartial jury to the accused in a criminal prosecution, conducted either in the name, or by or .under the authority of, the United States, secures to him the right to enjoy that mode of trial from the first moment, and in whatever court, he is put on trial for the offence charged.’ Id., at 557, 8 S.Ct. 1301, 32 L.Ed. 223.
“Reconsideration of Callan is not required here for two reasons. First, as the Court there recognized, the sources of the right to jury trial in the federal courts are several and include Art. III, § 2, cl. 3, of the Constitution. That provision requires, in pertinent part, that ‘[t]he trial of all Crimes . . . shall be by Jury.’ This language, which might be read as prohibiting, in the absence of a defendant’s consent, a federal trial without a jury is, of course, not applicable to the States. Second, to the extent that the decision in Callan may have rested on a determination that the right to trial by jury in a serious criminal case was unduly burdened by a requirement that an accused first be tried without a jury, it is not controlling here. Unlike the District of Columbia system, which apparently required that an accused be ‘fully tried’ in the first tier, 127 U.S. at 527, 8 S.Ct. 1301, 32 L.Ed. 223, Massachusetts permits an accused to short-circuit trial in the first tier by admitting to sufficient findings of fact.”

We recognize that the Ludwig holding casts a shadow on the holding in Callan. However, the Ludwig opinion disavows any intention of overruling Callan, and we consider the Callan holding and result uniquely appropriate in situations involving resolution of obscenity issues under the Miller guidelines. In Miller, the Court noted “that obscene material is unprotected by the First Amendment” but then acknowledged “the inherent dangers of undertaking to regulate any form of expression.” (413 U.S., at 23, 93 S.Ct. at 2614). In our view, we are free to follow the Callan holding, and we believe we should apply it to a situation where First Amendment rights are involved.

In Blount v. Rizzi, 400 U.S. 410, 416-417, 91 S.Ct. 423, 428, 27 L.Ed.2d 498, 503 (1970), the Supreme Court of the United States cautioned that “. . . Government ‘is not free to adopt whatever procedures it pleases for dealing with obscenity . without regard to the possible consequences for constitutionally protected speech.’ Marcus v. Search Warrant, 367 U.S. 717, 731, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). Rather, the First Amendment requires that procedures be incorporated that ‘ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line. . . . Our insistence that regulations of obscenity scrupulously embody the most rigorous procedural safeguards . is . but a special instance of the larger principle that the freedoms of expression must be ringed about with adequate bulwarks. . . . ’ Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). Since we have recognized that ‘the line between speech unconditionally guaranteed and speech which may legitimately be regulated ... is finely drawn. . . . [t]he separation of legitimate from illegitimate speech calls for . sensitive tools . . . Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958).”

We held in McNary that a person is entitled to freedom of expression, in areas of alleged obscenity, until a jury of his peers declares otherwise. We merely reaffirm the McNary holding today and give it practical effect. The essential question is whether it is constitutionally permissible to allow a municipal judge to restrict freedom of expression prior to the time a jury is made available in circuit court. We think not.

We hold, in obscenity cases only, that a trial by jury is required in the first instance and that a trial by jury after appeal to circuit court “does not satisfy the requirements of the Constitution.” (127 U.S., at 557, 8 S.Ct. at 1307).

We recognize that today’s holding renders the Kansas City obscenity ordinance unenforceable so long as juries are not permitted in Kansas City municipal courts. However, the chief executive officer of Kansas City, or its city attorney, may proceed under Section 563.285, RSMo 1969, in matters of alleged obscenity.

The judgment is reversed, and the cause remanded with directions to discharge Darby from custody.

CITY OF KANSAS CITY v. HERZ-MARK:

Edgar F. Herzmark was charged in the Municipal Court of Kansas City, Missouri, with exhibiting two obscene motion pictures on July 23, 1973, in violation of an ordinance of Kansas City. He was tried in the Municipal Court, without a jury, and was convicted. He appealed to the Circuit Court of Missouri, Sixteenth Judicial Circuit.

In the Circuit Court, he received a trial and the jury was unable to reach a verdict. He then stipulated that for the purposes of this case only the films are obscene under the Miller guidelines, withdrew his request for jury trial, was found guilty of exhibiting obscene materials, and his punishment was assessed at a fine of five hundred dollars.

Herzmark first asserts on appeal that he was deprived of trial by jury as prescribed by Miller. The assertion is without merit. He stipulated the motion pictures are obscene.

Herzmark next asserts that the Kansas City ordinance is impermissibly vague and overly broad. The assertion is without merit. Kansas City v. O’Connor, 510 S.W.2d 689 (Mo.banc 1974).

Herzmark finally asserts that the Kansas City ordinance is invalid in that it provides no procedural safeguards against the suppression of protected expression as required by Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973), and Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). The assertion is without merit. Kansas City v. O’Connor, supra.

The judgment is affirmed.

MORGAN, BARDGETT, HENLEY and FINCH, JJ., concur.

SEILER, C. J.,

concurs as to Darby, concurs as to Herzmark under compulsion of Kansas City v. O’Connor, 510 S.W.2d 689 (Mo.banc 1974).

HOLMAN, J., dissents.


source: Caselaw Access Project

author: DONNELLY, Judge. BARDGETT, Judge PER CURIAM:

license: Public Domain

text:
    STATE of Missouri, Respondent, v. David S. FRANCO, Appellant.
    No. 59623.
    Supreme Court of Missouri, en banc.
    Dec. 13, 1976.
    Rehearing Denied Jan. 10, 1977.

      William E. Shull, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
   DONNELLY, Judge.

This case was transferred here by the Missouri Court of Appeals, Kansas City District, and we decide it the same as on original appeal. Mo.Const. Art. V, § 10. The facts of the case, as they appear in the principal opinion written in the Court of Appeals (Somerville, J.) are set forth with minor changes without "quotation marks. That portion of this opinion which deals with the sufficiency of the evidence to sustain the convictions was also written by Judge Somerville and is adopted here, substantially as originally written, without quotation marks.

On February 6, 1974, appellant was charged in a two-count indictment with conventional murder in the first degree of Terry C. Ott and Linda Kay Baber. Appellant’s trial began on July 15,1974. On July 19,1974, a jury found him guilty under both counts of the indictment of the lesser included offense of murder, second degree. In view of the jury’s inability to agree upon his punishment, the court sentenced him to confinement in the Missouri Department of Corrections for a term of twenty-five years on each count and ordered said sentences to run consecutively.

Appellant challenges the sufficiency of the evidence to support the guilty verdicts returned by the jury, attacks the failure of the trial court to have instructed the jury on manslaughter, and levels two charges of error with respect to certain evidentiary rulings.

The evidence relied upon by the state, insofar as germane to any issues on appeal, was almost entirely circumstantial in nature, and substantially identical as to both counts of the indictment. Certain established principles bearing on appellate review, as well as the elements of murder, second degree, warrant mention as a prologue to determining whether there was sufficient substantial evidence to support the guilty verdicts of murder, second degree, returned by the jury. First, the facts in evidence and all favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the state and all evidence and inferences to the contrary must be disregarded. State v. McGlathery, 412 S.W.2d 445, 447 (Mo.1967); and State v. Chase, 444 S.W.2d 398 (Mo. banc 1969). Second, when the state’s case rests upon circumstantial evidence, “the facts and circumstances must be consistent with each other and with the hypothesis of defendant’s guilt, and they must be inconsistent with his innocence and exclude every reasonable hypothesis of his innocence.” State v. Ramsey, 368 S.W.2d 413, 416 (Mo.1963). See also: State v. Thomas, 452 S.W.2d 160, 162 (Mo.1970). Third, the prevailing circumstantial evidence rule, supra, is realistically tempered in its application since “[i]n a case involving circumstantial evidence the circumstances need not be absolutely conclusive of guilty, and they need not demonstrate impossibility of innocence[;] . . . the mere existence of other possible hypothesis is not enough to remove the case from the jury.” State v. Thomas, supra, at 162. See also: State v. Taylor, 445 S.W.2d 282 (Mo.1969); and State v. Maxie, 513 S.W.2d 338 (Mo.1974). Fourth, the wilful, premeditated killing of a human being with malice aforethought constitutes murder in the second degree. State v. Archer, 328 S.W.2d 661, 665 (Mo.1959); State v. Strong, 339 S.W.2d 759, 764-765 (Mo.1960); and State v. Anderson, 375 S.W.2d 116, 119 (Mo.1964).

A review of the evidence relied upon by the state, substantially condensed from a lengthy transcript, now appears to be in order. On January 2, 1974, and for some time prior thereto, appellant possessed a key to certain dwelling house located at 6130 Cherry, Kansas City, Jackson County, Missouri, owned by Sherry_. Sherry had given appellant the key in view of the intimacy of their relationship. On January 31, 1974, the bodies of Terry C. Ott and Linda Kay Baber were discovered by Sherry and two other friends under a pile of canvas awnings in the basement of her home (6130 Cherry). Terry C. Ott and Linda Kay Baber, who had been living together, were last seen alive on the morning of January 2, 1974. A forensic pathologist, who had performed autopsies upon the bodies of the victims, rendered an opinion that the two victims had been dead approximately “a month” when their bodies were discovered. Further, “Gunshot wounds to the chest with massive hemorrhage”, in the opinion of the pathologist, was the cause of Terry C. Ott’s death, and “Gunshot wound to the chest with massive hemorrhage”, in the opinion of the pathologist, was the cause of Linda Kay Baber’s death. During the course of the autopsy upon the body of Linda Kay Baber two .380 caliber bullets were removed, which, according to a ballistic expert, matched a bullet known to have been fired from a certain Llama .380 caliber automatic pistol introduced into evidence. Evidence disclosed that the automatic pistol had belonged to Ronald P. Palermo, a brother-in-law of appellant, but was stolen from Palermo’s home around the middle of December, 1973. Appellant was aware of Ronald P. Palermo’s ownership of the automatic pistol prior to its theft.

Appellant owed victim Terry C. Ott a sum of money approximating $2,000.00, and some two or three months prior to January 2, 1974, a heated dispute erupted between the two regarding repayment of the money.

At approximately 8:30 A.M. on the morning of January 2, 1974, appellant, in an attempt to contact Terry C. Ott, telephoned Linda Kay Baber’s mother and asked her to get in touch with Terry and have him call appellant. Appellant gave Linda’s mother a telephone number where Terry could reach him. The telephone number which he gave Linda’s mother was the listed telephone number for Sherry’s home at 6130 Cherry. A resident in the vicinity of 6130 Cherry testified that sometime between 9:00 A.M. and 1:15 P.M. on January 2,1974, he heard what sounded to him like exploding “firecrackers”.

At approximately 12:30 P.M. on January 2, 1974, Sherry was returning to her home from a 9 A.M. painting class when she encountered appellant at 63rd and Cherry Streets. Appellant stopped her and invited her to have lunch with him. After accepting appellant’s luncheon invitation, she drove her car to her home at 6130 Cherry and appellant followed in his car. When she started to take her painting supplies into her home, appellant suggested that she leave them in her car and that they immediately proceed to a place for lunch. Sherry acquiesced and got into appellant’s car.

When en route to a place for lunch, Sherry noticed some Indian jewelry in appellant’s car. She admired a particular Indian belt buckle (with a stone missing from it) which was among the jewelry, whereupon appellant gave it to her. The belt buckle was identified and admitted into evidence. A brother of victim Terry C. Ott testified that the belt buckle had previously belonged to him but prior to January 2, 1974, he gave it to Terry. Sherry further testified that while riding in appellant’s car en route to lunch on January 2, 1974, she observed a box in the back seat of his car which “smelled like marijuana”. Although she made inquiry of appellant as to the contents of the box, he refused to disclose its contents to her. Terry C. Ott was reputed to have been a “wholesaler” of marijuana.

Testimony disclosed that Terry C. Ott, prior to his death, regularly carried large suhis of cash upon his person. When his body was discovered, no cash was found upon his person. Subsequent to January 2, 1974, but prior to January 31, 1974, appellant, in the company of several other persons, made a trip to California at which time he was observed to have a substantial amount of cash upon his person.

On the date the victims’ bodies were discovered in the basement of Sherry’s home at 6130 Cherry, a purse identified as belonging to Linda Kay Baber, partially concealed on a rafter in the basement, was found by investigating police officers. Appellant later told certain police officers that although he had been with Terry C. Ott and Linda Kay Baber several times prior to their deaths, he had never touched Linda Kay Baber’s purse. A latent fingerprint was lifted from the purse discovered in the basement, which, according to expert testimony, matched an impression of appellant’s left ring finger.

The jury in the instant case could reasonably infer from the concealment of the victims’ bodies that they were intentionally killed under circumstances that could not be deemed justifiable or excusable, and that their deaths were not suicidal or accidental. The combined testimony of the pathologist and ballistic expert amply supported a finding by the jury that the victims’ deaths were caused by a deadly weapon used upon vital parts of their bodies. Further, the jury could reasonably infer from the collective impact of the following evidence that appellant committed the homicides in question: (1) appellant’s access to the basement of the dwelling house where the victims’ bodies were found; (2) appellant’s possession of an Indian belt buckle on the afternoon of January 2, 1974, which belonged to victim Terry C. Ott; (3) the presence of appellant’s fingerprint on a purse belonging to Linda Kay Baber, which was found partially concealed on a rafter in the basement where the victims’ bodies were discovered; (4) appellant’s presence on January 2, 1974, in the immediate area of the dwelling house where the victims’ bodies were eventually found almost a month later; and (5) the fact that appellant left a message for victim Terry C. Ott to call him on the morning of January 2, 1974, at the dwelling house where the victims’ bodies were found.

Although similar circumstantial evidence cases are not dispositive of the question of submissibility of this case, since each case must be considered in light of its own particular facts and circumstances, State v. Maxie, supra, a case resting entirely on circumstantial evidence, is worthy of mention. There, this Court affirmed a conviction for murder in the second degree where considerably less evidence existed from which the accused’s guilt could be reasonably inferred than exists in the instant case. In State v. Maxie, supra, the only evidence that could arguably be said to connect the accused with the victim’s death was the presence of his fingerprint on a box located in an apartment where the victim’s body was found.

The reasonable inferences which the evidence presented by the state in this case permitted the jury to draw impel this Court to hold that there was sufficient substantial evidence to support the jury verdicts finding appellant guilty of murder, second degree, under both counts of the indictment.

Appellant asserts the trial court erred in failing to instruct on manslaughter. He contends “that the entire case presented against him was circumstantial evidence which introduced nothing that would indicate the reason the homicide occurred, or the facts and circumstances surrounding it. In the absence of such affirmative evidence, * * * a manslaughter instruction must be given as a matter of law by the court.”

Appellant’s contention finds support in the concurring opinion filed in State v. Mudgett, 531 S.W.2d 275, 283, 284 (Mo. banc 1975) in which State v. Johnson, 505 S.W.2d 94 (Mo.1974), was construed to hold that a trial court is required to give a lesser homicide instruction in a “circumstantial-evidence” case.

In State v. Holland, 354 Mo. 527, 189 S.W.2d 989, 998 (1945), Division No. 2 of this Court said:

“We call special attention to the following cases: State v. Dickson, 78 Mo. 438; State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245; State v. Taylor, 347 Mo. 607, 148 S.W.2d 802; State v. Rasco, supra; State v. Rumfelt, 228 Mo. 443, 128 S.W. 737. In each of these cases the evidence was entirely circumstantial and convictions of first degree murder were sustained. In none of the cases was a second degree murder instruction given. In each case the court considered the question and decided that the circumstances disclosed first degree murder only and an instruction on second degree murder was properly refused.”

The Holland statement of the law was expressly approved in State v. Cuckovich, 485 S.W.2d 16, 26 (Mo. banc 1972). If Johnson was intended to mean that a trial court is required to give a lesser homicide instruction in a “circumstantial-evidence” case, it must be overruled. The decision reached by the Court en Banc in Cuckovich may not be overruled by an opinion written in a Division of this Court. Appellant’s assertion is without merit.

Appellant next asserts “the trial court erred in allowing witnesses Baber and Ewing to testify in that the court and state knew that said witnesses would refuse to testify under protection of the Fifth Amendment and said refusal was highly prejudicial to the defense and denied the defendant his right to cross-examination, all of which is guaranteed under the Fifth, Sixth and Fourteenth Amendments, United States Constitution, and Article I, Section 18(a), Missouri State Constitution.”

This specific objection was not made at the trial when the questions were asked and answers given. It is not preserved for appellate review. State v. Lang, 515 S.W.2d 507, 511 (Mo.1974).

Appellant finally asserts “the trial court erred in allowing the state to impeach its own witness Palermo over the objection of the defendant without establishing a proper foundation and basis and using those facts as substantive evidence and said error denied the defendant his constitutional right to a fair trial and due process of law as guaranteed by the Fourteenth Amendment, United States Constitution, and Article I, Section 10, Missouri State Constitution.”

The applicable law is well-established. “A party calling a witness when surprised by affirmative evidence which aids the opposing party may cross-examine that witness to show that he had given former statements contrary to his testimony.” State v. Gordon, 391 S.W.2d 346, 349 (Mo.1965). “The extent of cross-examination on collateral matters for the purpose of impeachment is largely within the trial court’s discretion * * State v. Cox, 352 S.W.2d 665, 673 (Mo.1961).

On direct examination, witness Ronald P. Palermo testified as follows:

“Q And did you see how much money David Franco had with him in California?
“A I did not actually see a certain amount, no, but he had enough for a vacation.
“Q By that what do you mean?
“A Anywhere from I think 800 to a thousand dollars.
“MR. DUNCAN: I will object to this, your Honor. If he didn’t see it, enough, it’s pretty nebulous. I will object. It is calling for a conclusion.
“THE COURT: Sustained.”

On redirect examination, the state was permitted to show that Palermo had given a statement to the police that he observed appellant “to have approximately nineteen hundred dollars cash on his person.” Under the law announced in Gordon, supra, the trial court did not err.

On cross-examination, Palermo testified that he was at Don Wormack’s house at the time his mother called to tell him of the burglary at which the automatic pistol was stolen. On redirect examination, the state was permitted to attempt to show that Palermo had told police he was at Michael Grady’s house at the time. Appellant contends the state’s attempt “did not go to a material matter.” We do not believe the trial court abused its discretion in this regard. State v. Cox, supra.

Appellant’s assertion that the state did not establish a proper foundation for impeachment is not preserved for appellate review. State v. Lang, supra.

The judgment is affirmed.

MORGAN, HOLMAN, HENLEY and FINCH, JJ., concur.

BARDGETT, J., dissents in separate dissenting opinion filed.

SEILER, C. J., dissents and concurs in separate dissenting opinion of BARDGETT, J.

BARDGETT, Judge

(dissenting).

I respectfully dissent. As demonstrated by the principal opinion, this is purely a circumstantial evidence case and is, in my opinion, controlled by State v. Johnson, 505 S.W.2d 94 (Mo.1974), which was followed in State v. Stapleton, 518 S.W.2d 292 (Mo. banc 1975). See also my concurring opinion in State v. Mudgett, 531 S.W.2d 275, 283 (Mo. banc 1975). According to those cases, the court in the instant case was required to instruct on manslaughter and the failure to do so is reversible error.

ON MOTION FOR REHEARING

PER CURIAM:

Appellant’s motion for rehearing is overruled.

The Court emphasizes that where conventional murder instructions are supported by the pleadings and evidence and are given, there must be an automatic submission of manslaughter. This requirement has been in effect since March 1, 1975 (see Notes on Use, MAI-CR 6.02). This case was tried prior to March 1, 1975.


author: SEILER, Chief Justice. • DONNELLY, Judge,

text:
    STATE of Missouri ex rel. James M. CARRINGTON, Plaintiff, v. F. William HUMAN, Jr., et al., Defendants, and James Whitmore, Intervenor.
    No. 59912.
    Supreme Court of Missouri, En Banc.
    Dec. 21, 1976.
    Rehearing Denied Dec. 27, 1976.

      Murray Stone and Susan E. Block, St. Louis, for plaintiff.
    Norman C. Parker, Timothy G. Noble, St. Louis, for respondents.
    Walter H. Sheata, St. Louis, for interve-nor.
   SEILER, Chief Justice.

This is a petition for a writ of prohibition which we transferred prior to opinion by the court of appeals, St. Louis district. Rule 83.06.

In the Democratic primary election for state representative from the 67th legislative district, intervenor Whitmore defeated his incumbent rival, relator Carrington. Through separate prohibition proceedings instituted after the primary election in both circuit court and court of appeals, St. Louis district, Carrington succeeded in preventing Whitmore’s name from appearing on the general election ballot because the circuit court found that Whitmore did not reside in the district which he sought to represent. Whitmore has appealed the circuit court judgment. Since there was no Republican candidate for the office, no names appeared on the general election ballot. Consequently, the only votes were write-ins, of which we are informed Whitmore received the largest number. Carrington was second. Then after the general election, Carrington succeeded in obtaining a preliminary writ of prohibition from the St. Louis district which prevented the appropriate election boards from transmitting Whitmore’s general election vote totals to the Secretary of State, but no one elsé’s. Consequently, Carrington’s vote totals were forwarded. The St. Louis district was about to make its writ absolute when we transferred the cause. We hold that Mo.Const. Art. Ill, § 18, prevents us from issuing our writ as relator Carrington requests.

In oral argument, relator Carrington framed the issue before us as follows:

“In light of a candidate’s ineligibility having been determined by a judicial proceeding prior to a general election, should the defendants [election boards] be permitted to send to the Secretary of State the number of write-in votes cast for said candidate whom defendants know to be ineligible as a result of defendants being parties to said judicial proceeding?”

Relator’s formulation fails to recognize the more crucial threshold question of our power and right to pass upon the issue presented — that is, whether, in the face of the constitutional provisions of Art. Ill, we should interfere with the forwarding of the write-in vote totals received by the candidates, including intervenor, from the election boards to the Secretary of State. As will be seen, because the constitutional deadline which confronts the court has long since passed, we cannot provide the relief relator seeks.

The Missouri Constitution, Art. Ill, § 18, provides: “Each house [of the General Assembly] . . . shall be sole judge of the qualifications, election and returns of its own members . . . .” Relator asks us, in effect, to determine the qualifications and election of members of the House of Representatives after the general election in contravention of our Constitution by prohibiting the election boards from transmitting Whitmore’s vote totals to the Secretary of State. We have always refused to decide these questions after the general election in accordance with the mandate of Art. III, § 18. State ex inf. Danforth v. Hickey, 475 S.W.2d 617, 618-19 (Mo. banc 1972); State ex inf. Danforth v. Banks, 454 S.W.2d 498, 500 (Mo. banc 1970). Consistent with both the language and history of Art. III, § 18, however, we will continue to explore such questions as presented by relator only before the general election. State ex rel. Gralike v. Walsh, 483 S.W.2d 70 (Mo. banc 1972).

The reason for the general election cutoff date is twofold. First, the history of Art. III, § 18, indicates that when it was incorporated into our constitution, its mandate included only the general election. The applicable provision of Art. III, § 18, is identical to its predecessor, Art. IV, § 17, of the 1875 Missouri Constitution. Primary elections, however, did not become the method of party candidate selection until 1907. Laws 1907, p. 263. Subsequent constitutional conventions have had opportunities to change the language of the provision to cover primary elections, but they chose not to do so. Second, and even more compelling, is the language of Art. III, § 18. It states that the House shall be the sole judge of its members’ qualifications and election. Until the general election no one is elected, and the question is only one of an individual’s qualifications to be a candidate for election, not of a member’s qualification. Moreover, the general election is a foundation of the legislative branch of government and to interfere would not only violate Art. Ill, § 18, but also do damage to the concept of separation of power, a foundation upon which all three branches of government are built.

Another argument is implicit in the way in which relator frames the issue. To his mind, the judicial determination of Whit-more’s ineligibility before the general election is somehow a foot in the door which will stay the effect of the general election and keep the door propped open. This argument is without merit. There is nothing a court can do to prevent the general election from bringing Art. III, § 18, into effect. Time and time again, courts have the power and right to decide a case only to find that before acting they have lost their power through the mere passage of time and occurrence of events. The passage of time and occurrence of events often render undecidable causes of action at various stages of the judicial process, and courts recognize this process by various names such as mootness, nonjusticiability, political question, or lack of jurisdiction. In any of these cases, the court is powerless to regain its ability to decide.

The parties must present the case and the court must act. In the case before us, Art. III, § 18, requires us to act either before the general election or not at all. The door has now shut, the forum has shifted, and we will not indulge in the impermissible assumption that the legislature will not faithfully discharge its duty under Art. III, § 18, as relator would have us believe.

Therefore, the preliminary writ of prohibition is quashed. The respondent boards of election commissioners of St. Louis City and St. Louis County are ordered to forward, forthwith, to the Secretary of State the number of write-in votes cast for inter-venor, James Whitmore, in the November 2, 1976, election for the office of state representative from the 67th legislative district. Upon receipt of said vote totals, the Secretary of State, Honorable James C. Kirkpatrick, is ordered to include the same in the vote returns of said respondents and then to proceed to cast up the write-in votes given for all candidates for the office of state representative from the 67th legislative district and shall give to the person having the highest number of votes a certificate of election and further proceed as required by law.

MORGAN, HOLMAN, BARDGETT, HENLEY, and FINCH, JJ., concur.

DONNELLY, J., concurs in result in separate opinion filed.

• DONNELLY, Judge,

concurring in result.

I concur only in the result for at least two reasons:

(1) State ex rel. Gralike v. Walsh, 483 S.W.2d 70 (Mo. banc 1972), cited with approval in the principal opinion, merely perpetuates the fiction that the courts, even before a general election, may usurp the right of each house of the General Assembly to be the sole judge of the qualifications of its own members. Mo.Const. Art. III, § 18. I would disavow the holding in Gra-like.

(2) I doubt the present constitutional viability, under the “compelling state interest” standard articulated in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274, of that portion of Mo.Const.Art. Ill, § 4 which requires that each representative shall have been a resident of the district which he is chosen to represent for one year. The justifications for upholding the constitutionality of such a provision (e. g. ensuring that the representative is exposed to the problems, needs and desires of the people and that they have a chance to observe him and gain first-hand knowledge of his habits and character — Cf. Chimento v. Stark, 353 F.Supp. 1211, affirmed 414 U.S. 802, 94 S.Ct. 125, 38 L.Ed.2d 39) are no longer available to Missouri because of the decision in State ex rel. King v. Walsh, 484 S.W.2d 641 (Mo. banc 1972) which holds that a provision for residency for a given period of time “does not mean and require actual, physical presence * * *.” (484 S.W.2d, at 644).

      . Whitmore’s appeal is pending in the court of appeals, St. Louis district. It would appear to be moot, the election having already occurred, and there being no way, even if he were to prevail on appeal, that his name could be restored to the ballot.


author: BARDGETT, Judge.

text:
    MISSOURI PACIFIC RAILROAD COMPANY et al., Plaintiffs-Appellants, v. J. J. JONES et al., Defendants-Respondents-Cross-Appellants, Cass County Reorganized School District R-I et al., Intervenors-Cross-Appellants.
    No. 59122.
    Supreme Court of Missouri, Division No. 1.
    Dec. 21, 1976.

      Kent Snapp, James M. Beck, Johnson, Lucas, Bush & Snapp, Kansas City, for Missouri Pacific Railroad Co.
    Robert D. Youle, Gary S. Dyer, Lathrop, Koontz, Righter, Clagett, Parker & Nor-quist, Kansas City, for Kansas City Southern Railway Co.
    Donald C. Bollard, III, Deacy & Deacy, Kansas City, for St. Louis-San Francisco Railway Co.
    Judith Paxton Rea, Kansas City, for Missouri Public Service Co.
    Clarence A. Conoley, Kansas City, for Panhandle Eastern Pipe Line Co.
    David M. Claycomb, James, Odegard & Millert, Kansas City, for Chicago, Rock Island & Pacific Railroad Co.
    F. Michael Seltzer, Kansas City, for Kansas City Power & Light Co.
    Lex A. Passman, Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, for United Telephone Co. of Missouri.
    Jack C. Lorenz, St. Louis, James E. Taylor, Kansas City, for Southwestern Bell.
    Elvin S. Douglas, Jr., Crouch, Crouch, Spangler & Douglas, Harrisonville, for in-tervenors-cross appellants.
    Joseph A. Hamilton, Harrisonville, for defendants-cross appellants.
    William C. Paxton, Paxton, Stewart & Sperry, A Professional Corp., Independence, Donald C. Earnshaw, Lee’s Summit, for in-tervenors-cross appellants, Jackson County Reorganized School District R-VII (Lee’s Summit) and Jackson County Consolidated School District VI (Lone Jack).
   BARDGETT, Judge.

This case originated as a suit in the circuit court of Cass County by plaintiffs-appellants, nine regulated utility companies, to recover 1972 school taxes paid under protest. Defendants are J. J. Jones, the former treasurer and ex officio collector of Cass County whose term of office expired December 31, 1972, and Benny Odom, the collector of Cass County whose term of office began on January 1,1973. Plaintiffs filed separate suits pursuant to Section 139.031, RSMo 1969. All cases were consolidated for trial and a single judgment was rendered.

Intervenors are fifteen school districts, eight located wholly within Cass County (single-county districts), and seven located partly in Cass County and partly in other counties (multi-county districts). Jurisdiction is in this court pursuant to Art. V, Sec. 3, Mo.Const., because the appeal involves construction of a state revenue law — Section 137.073, RSMo 1969.

The taxes involved are those which were levied against the “distributable property” of the nine regulated utilities. The “distributable property” of regulated utilities is assessed on a statewide basis by the state tax commission pursuant to Section 151.060. That statewide assessment is then allocated by the state tax commission among the counties in accordance with Section 151.080. The local school taxes were levied against the “distributable property” of plaintiffs pursuant to Section 151.150, which requires that the separate levies of each school district which lies wholly or partly within a county be averaged to arrive at an average rate of school levy within the county. This average rate of school levy was then charged against the portion of each utility’s “distributable property” allocated to the county.

Each of the fifteen school districts adopted an original rate of levy for 1972 based upon the 1971 assessed valuation of real estate in the district and estimates of the district’s financial requirements. These levies were certified to the county collector of Cass County. The average rate of levy for the original figures submitted was $4.23 per $100 valuation. The final assessed value of real property in Cass County for the year 1971 was $44,188,597 and for the year 1972 was $52,021,187. All parties have stipulated that this ten percent increase in assessed valuation of real property in Cass County in 1972 “triggered” Section 137.073, which provides:

“Whenever the assessed valuation of real or personal property within the county has been increased by ten per cent or more over the prior year’s valuation, either by an order of the state tax commission or by other action, and such increase is made after the rate of levy has been determined and levied by the county court, city council, school board, township board or other bodies legally authorized to make levies, and certified to the county clerk, then such taxing authorities shall immediately revise and lower the rates of levy to the extent necessary to produce from all taxable property substantially the same amount of taxes as previously estimated to be produced by the original levy. Where the taxing authority is a school district it shall only be required hereby to revise and lower the rates of levy to the extent necessary to produce from all taxable property substantially the same amount of taxes as previously estimated to be produced by the original levy, plus such additional amounts as may be necessary approximately to offset said district’s reduction in the apportionment of state school moneys due to its increased valuation. The lower rate of levy shall then be recerti-fied to the county clerk and extended upon the tax books for the current year. The term ‘rate of levy’ as used herein shall include not only those rates the taxing authorities shall be authorized to levy without a vote, but also those rates which have been or may be authorized by elections for additional or special purposes. No levy for public schools or libraries shall be reduced below a point that would entitle them to participate in state funds.”

In order to comply with the statute, twelve of the fifteen school districts revised their rate of levy downward. A new average rate of levy was computed using the twelve new rates and three old rates. The new average rate of levy was $4.09 per $100 valuation. This average school tax levy was extended on the tax rolls of Cass County and paid by the utilities with portions of the tax paid under protest.

On May 9, 1975, the trial court entered judgment in which it found that generally each of the plaintiffs had properly paid the contested taxes under protest and had properly instituted action to recover those taxes and that the average rate of levy of $4.09 per $100 valuation was not proper. The court determined that an average rate of levy of $3.91 per $100 valuation to be proper and judgment was entered in favor of each plaintiff for the difference between tax actually paid and tax due under the court’s formula.

In computing tax actually due, the trial court found that in multi-county school districts only the increase in assessment in the “triggering county” (Cass County) need be considered because it interpreted Section 137.073 to mean that the ten percent plus increase in Cass County does not automatically trigger Section 137.073 in adjoining counties where a portion of the school district is located and where the assessed valuation was not increased by as much as ten percent. Plaintiffs contend that the ten percent increase in valuation in Cass County triggered Section 137.073 as to all counties in a multi-county school district. Using this rationale, the plaintiffs proposed an average rate of levy of $3.83 per $100 valuation.

These two interpretations are expressed best by using a series of hypothetical illustrations:

Assume school district A needs $10,000 in tax revenues in 1971 and the counties which compose district A have a total assessed valuation of $400,000 in 1971. The district is composed of parts of four counties whose individual valuations for 1971 each equal $100,000. The tax rate needed to produce $10,000 is $2.50 per hundred dollars assessed valuation. The following chart illustrates the tax revenues of school district A for 1971:
Assessed Valuation 1971 Rate of Tax Levy in 1971 Required to raise $10,000 Amount of Revenue Produced
County 1 $100,000 $2.50/$100 $ 2,500
County 2 100,000 2.50/$100 2,500
County 3 100,000 2.50/$100 2,500
County 4 100,000 2.50/$100 2,500
Total Revenue $ 10,000

Assume next that in 1972 the assessed valuation in County 1 increases to $200,-000 (a 100 percent increase), County 2 increases to $109,000 (a 9 percent increase), County 3 increases to $108,000 (an 8 percent increase), and County 4 increases to $108,000 (an 8 percent increase). The 100 percent increase in County 1 triggers Section 137.073 because it is an increase in assessed valuation of 10 percent or more. The statute requires a reduction in the tax levy so as to raise substantially the same amount of money in 1972 as would have been raised by the original levy on the final 1971 assessed valuation.

According to .the trial court the statute is only triggered in County 1 and not in Counties 2, 3, and 4. The court would figure the new tax levy by adding the 1972 valuation of County 1 ($200,000) to the 1971 valuations of County 2 ($100,-000), County 3 ($100,000) and County 4 ($100,000) to come up with the total school district A’s valuation of $500,000 from which to figure a new tax levy to raise the $10,000 in needed revenue. Using this figure the new tax levy would therefore be $2.00 per $100 assessed valuation. According to the trial court’s formula, this $2.00 rate is then levied against the total 1972 assessed valuation of $525,000 for school district A.

The following chart illustrates the tax revenues of school district A for 1972:

Assessed Valuation 1972 Rate of Tax Levy in 1972 required to raise $10,000 Amount of Revenue Produced
County 1 $200,000 $ 2.00/$100 4,000
County 2 109,000 2.00/$100 2,180
County 3 108,000 2.00/$100 2,160
County 4 108,000 2.00/$100 2,160
Total Produced $ 10,500

The formula used by the trial court produces in the second illustration $500 more than what is required by the school district. Stated in other terms, the people who live in school district A are required to pay more in taxes than what is needed by the district.

Using the rationale of the plaintiffs-appellants the correct method to figure the revised tax levy where one county has triggered Section 137.078 because of an increase in valuation of ten percent or more is to use the amount of the total 1972 district valuation of $525,000 as the base. Using $525,000 as the base, the tax levy needed to produce $10,000 is approximately $1.91.

The following chart illustrates the tax revenues of school district A for 1972 using $1.91 as the amount of tax levy per $100 assessed valuation:

Assessed Valuation 1972 Rate of Tax Levy in 1972 Required to raise $10,000 Amount of Revenue Produced
$ 3,820.00 County 1 $200,000 $1.91/$100
2,081.90 County 2 109,000 1. 91/$100
2,062.80 County 3 108,000 1.91/$100
County 4 108,000 1.91/$100 2,062.80
Total Revenue $ 10,027.50
Using this formula, substantially the same amount of revenue is produced in 1972 as was produced in 1972.

All parties appealed from the trial court’s judgment. Plaintiffs-appellants appeal the judgment only as to five multi-county school districts (Drexel, Archie, Kingsville, Lee’s Summit, and Lone Jack). Defendants-appellants and intervenors-appellants appeal the entire judgment of the trial court.

The following ruling by the trial court is the basis for the utilities’ appeal:

“. . . In computing the Multi-County District revised levy, the amount of the revision or adjustment must be that amount required to raise substantially the same amount of money as the original levy would have raised, taking into account only the increase in the assessment in Cass County, the only County in which an increase in excess of ten percent (10%) occurred. The Court finds that a uniform district-wide levy must be assessed by the District throughout the District, but the increase in the Multi-County Districts’ assessed valuation which occurred in Counties adjacent to Cass County need not be considered by those Districts in arriving at the revised levy. The 10% plus increase in assessed valuation in Cass County does not trigger the Statute as to Jackson County or other County areas. The Court does therefore find against plaintiffs on this issue insofar as plaintiffs contend that the revised levy should be adjusted sufficiently to adjust for increases in assessed valuation which occurred in Counties other than Cass County, but in which a 10% increase in such adjacent County did not occur.”

Plaintiffs-appellants contend that the average school tax levy of $3.91 per $100 valuation determined by the trial court is excessive and illegal because it incorrectly applies Section 137.073 to the five multi-county school districts and also because it constitutes a misinterpretation of the legislative intent as evidenced in Section 137.-073. Plaintiffs-appellants contend that 137.073 requires the application of a single mathematical formula to be used in both single-county and multi-county districts. The single mathematical procedure the utilities contend for is that the total assessed valuation in the entire school district must be used as the tax base regardless of whether the school district is a single-county district or a multi-county district. The trial court held that the full increased assessed valuation in a single-county district would be the base for that district but that in multi-county districts the district should utilize as the base the increased assessed valuation in the triggering county but could ignore the increased valuation in the other counties if the increases were less than 10%. The utilities further contend that the trial court’s use of one formula in single-county districts and another formula in multi-county districts violates Art. X, Sec. 3, Mo. Const., in that it allows nonuniform taxes on a class of subjects within the territorial limits of the taxing authority.

This court has construed Section 137.073 three times. In Missouri Pacific Railroad Company v. Kuehle, 482 S.W.2d 505 (Mo.1972), three utilities filed suit against the county tax collector alleging excess school tax payments. The school districts intervened. In deciding whether the original rate and the revised rate produced “substantially the same amount of taxes”, this court looked to the intent of the legislature as expressed in the emergency clause of the original act, which clause provides:

“Emergency. — Because the state tax commission has announced that it is going to order a large increase in the assessed valuations of property in many counties in this state which will result in hardship for the citizens of the state unless the rate of levies are correspondingly reduced, and because the present law does not adequately protect the people of this state, and because this act is necessary for the immediate preservation of the public peace, health and safety of the inhabitants of this state, an emergency exists within the meaning of the constitution, and this act shall be in full force and effect from and after its passage and approval.” Laws of Missouri 1955, p. 836.

The court in Kuehle found that the purpose of Section 137.073 was to prevent windfalls in school taxes to the school districts merely because the assessed valuation of the real property in a county increases. The court went on to construe the statute strictly in favor of the taxpayer finding that the revised rate of levy (which produced $80,000 in excess of the original rate) did not comply with 137.073 in that the revised levy did not produce substantially the same amount of taxes.

In St. Louis-Southwestern Railway Company v. Cooper, 496 S.W.2d 836 (Mo.1973), the constitutionality of Section 137.073 was attacked by defendant-respondent collector of Stoddard County and by intervenors school districts located partly or wholly within Stoddard County. Of interest in this case was the allegation that Section 137.073 was unconstitutional because it did not deal with multi-county school districts and therefore required a decrease in tax rate by a school district in a county in which there had been a 10% increase in valuation but did not require a school district which was located in more than one county to reduce its rate in the other county which did not have a 10% increase. The trial court had found this produced a violation of Art. X, Sec. 3, Mo.Const., which requires uniformity of taxes within the territorial limits of the taxing authority.

On appeal to this court, Holman, P. J., said at 840, in answer to the above contention,

“. . . the practical construction here given by multi-county districts which did adjust rates demonstrates that the statute is capable of being applied without giving rise to the consequences which the trial court found productive of the constitutional infirmity. Advance Bernie and Twin Rivers [school districts] simply applied the adjusted rate to the entire district, the portions in Stoddard County and the portions in other counties. Such action demonstrates that the statute may be so construed and applied and precludes a finding of unconstitutionality on the grounds relied upon by the trial court. State ex inf. Dalton v. Metropolitan St. Louis Sewer District, 275 S.W.2d 225, 234[22-25] (Mo. banc, 1955).”

The “practical construction” set forth supra was followed by one of the multi-county school districts in this case. The R-8 Sherwood School District of Cass County, lying also in Henry and Johnson Counties, timely filed with each of the three county clerks an estimate for an aggregate 1972 levy rate of $3.50 which estimate used the final assessed valuation for the entire district. Thereafter, a more than ten percent increase occurred in Cass County. The R-8 school district then lowered its aggregate 1972 levy to $3.45 which levy was based upon the aggregate 1972 final assessed valuation of the entire school district. The adjustment therefore took into account the increases in assessed valuation occurring in Henry and Johnson Counties even though such increases did not exceed ten percent in either of these counties. The result reached by that method accomplishes the declared purpose of Section 137.073 which is “. to produce from all taxable property substantially the same amount of taxes as previously estimated to be produced by the original levy.” (Emphasis supplied.)

The issue relating to the formula to be used in arriving at the correct levy in a multi-county school district where the assessed valuation of real and personal property is increased over 10% in only one of the counties is the only point raised on plaintiffs’ appeal. The court concludes that § 137.073 requires the school district to take into consideration the increased assessed valuation of all the property within the school district. Specifically, the school district must include in its base the increases in assessed valuation in all of the counties in which the school district lies and not just the county where the increase exceeds 10%. This method will produce the sum of money which the school district has declared that it needs for the ensuing year.

Defendants-intervenors also claim the trial court failed to take into consideration reduced tax receipts which would be lost by the school districts from state assessed utility distributable property. The real issue however is whether substantially the same amount of taxes previously estimated to be produced by the original levy will be produced from the revised and lowered school tax rate of levy.

In determining and certifying its original levy necessary to produce the tax revenues required to operate school districts, each district fixed a levy which would, when applied to its locally assessed property alone, produce the revenue needed. Utility property, which is assessed on a state-wide basis, is taxed according to Section 151.150. The utility property raises additional revenue over and above that amount certified to the county collector. When the rates of levy of each district was revised by the trial court it is true that less revenue was produced from utility taxes. However no credit is due on that decrease. This is so because Section 137.073 is not directed to the state assessed utility property. Section 137.073 requires only that substantially the same amount of taxes as were previously estimated to be produced by the original levy be produced by the revised levy. This original amount is not based on utility property and no decrease in taxes raised from utility property due to a revision of levies downward results in a tax credit. Utility property simply is not a factor in determining substantial compliance with Section 137.073.

Defendants-intervenors allege that the trial court erred by failing to consider the loss of state aid arising by reason of the increased assessed valuation. Section 137-073 provides in part, “. . . Where the taxing authority is a school district it shall only be required hereby to revise and lower the rates of levy to the extent necessary to produce from all taxable property substantially the same amount of taxes as previously estimated to be produced by the original levy, plus such additional amounts as may be necessary approximately to offset said district’s reduction in the apportionment of state school moneys due to its increased valuation. . . . ”

The evidence in this case shows that there was no reduction of state aid for the school year of 1972. The defendants-inter-venors’ claim is without merit. The trial court was correct in ruling for the utilities on this point.

Defendants-intervenors next contend the trial court erred in failing to consider the budgeted assessed valuation figures used by the Belton, Raymore-Peculiar and Harrisonville school districts in arriving at the proper amended levy. These three school districts offered evidence that actual figures other than those filed as estimates with the county clerk were used in fixing their initial rate. The districts say that they purposefully based their rate of levy on a higher valuation than the 1971 valuation because they knew the valuations were going up for 1972. This had the effect of making their need for 1972 look lower than it actually was. This issue was met in Missouri Pacific R. Co. v. Campbell, 502 S.W.2d 354 (Mo.1973). This court said at 358-359:

“There was evidence offered by the intervenors to the effect that they contacted the assessor and obtained an estimate of the probable amount of increased assessment before preparing their budgets and took that into consideration in fixing their rates of levy. They say, therefore, that they did not receive an unexpected windfall and hence the reduction provision of the statute should not be applicable. We do not know whether the trial court considered that evidence in its decision because no statement of ‘grounds for decision’ was filed. As required by law, the districts filed a written estimate with the county clerk stating the amount of money needed for the ensuing year and the tax rate (based upon the assessed valuation for the prior year) that would be levied to produce that amount. The only way the districts could have accomplished the result they now say occurred is to have stated a smaller amount for their needs in the official estimate than the amount they considered actually necessary.
“Our view is that the foregoing evidence (even if assumed to be admissible) would not change the result we have reached. The districts should not be permitted to repudiate the amount of their needs as stated in their official estimates and to now state that their estimates were intentionally incorrect and based upon information not recognized by the various statutes involved. Such a procedure would not only be a violation of those statutes but would tend to emasculate the specific reduction provision of § 137.073 and place its enforcement on a tenuous and speculative basis.”

Defendants-intervenors attempt to distinguish the above case on the basis that the 1972 assessed valuation had been filed before these districts fixed their initial rate of levy and because the evidence shows that the levies were based on lower assessed values than those reported by the assessor prior to that date. The court holds that the issue is controlled by Campbell, supra. The point is overruled.

Defendants-intervenors contend that five of the utilities failed to join the present county collector Benny Odom within 90 days after the date of protest as required by Section 139.031. The five utilities named are Kansas City Southern Railway Company, St. Louis-San Francisco Railway Company, United Telephone Company, Southwestern Bell Telephone Company and Panhandle Eastern Pipe Line Company.

Defendants-intervenors claim that, once the 90 days had run, it was too late for the five utilities to add Benny Odom as a defendant. As pointed out in plaintiffs’ responsive brief and the petition of Southern Railway, that utility did join Benny Odom in its original petition. The other four utilities were granted leave to amend by substitution after the 90-day period. Plaintiffs-appellants rely on civil rule 52.13(d) and claim that the amendment relates back to the date of the original pleading. Rule 52.13(d) provides:

“(d) Public Officers — Death or Separation from Office. When a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution. When a public officer sues or is sued in his official capacity, he may be described as a party by his official title rather than by name, but the court may require his name to be added.”

According to this rule Benny Odom automatically became a party to the suits upon the expiration of J. J. Jones’s term of office. Defendants-intervenors reliance on Haney v. Thomson, 339 Mo. 505, 98 S.W.2d 639 (1936), and Daiprai v. Moberly Fuel & Transfer Co., 359 Mo. 789, 223 S.W.2d 474 (1949) is misplaced. Daiprai holds that a substitution of a corporate defendant for three named parties who owned the corporation was an entire change of parties and would not be allowed after the statute of limitations had run. Haney holds that where new parties are brought in by amendment the statute of limitations continues to run in their favor until they are made parties. These cases do not apply to public officers as parties to suit.

Defendants-intervenors’ final claim is that the trial court erred in ordering a levy reduction of two cents in the Jackson County Reorganized School District YII (a multi-county school district located in Cass and Jackson Counties). Some background information is needed in order to understand this issue. Cass County makes up only a small percentage of the total assessed valuation of the Jackson County Reorganized School District VII. In 1972 the assessed valuation in Cass County increased from $1,512,985 to $1,883,000.74 for a total increase in assessed valuation of $370,760 (stipulation). This increase of over 10% triggered the reduction provision of Section 137.073. By our ruling today when a 10% or more increase occurs in one of the counties making up a school district it is necessary for that district to reduce their tax levy so as to produce substantially the same amount of taxes as produced by the original levy.

The increase in assessed valuation in Cass County represents a gain in income to the school district of $19,279, hardly a small amount when compared to $78,675, the total amount of taxes produced by the original levy in Cass County. The school district argues this increase of $19,279 represented less than 1% of their total budget and therefore they complied with the “substantially the same” requirement in the statute. This obfuscates the real issue in this case because the statute does not concern itself with what percentage the increase in taxes from one county represents of the total school budget. The $19,279 increase in taxes from Cass County was certainly a “windfall” regardless of what percentage it represented of the total budget of the school district.

The statute requires a reduction in the original levy so as to produce substantially the same amount of taxes. The trial court found the Jackson County Reorganized School District VII failed to do this and as a result ordered the school district to reduce the original levy so as to comply with the statute. Although we do not agree with the amount of reduction ordered by the trial court we do not believe the trial court abused its discretion in ordering a reduction.

The court finds using the method endorsed above that the correct average levy of the districts should be $3.83 rather than $3.91 as found by the trial court.

In accordance with this finding we order up judgment against defendant Benny Odom as collector of revenue of Cass County, Missouri, and order him to pay the following amounts of money in refunds to each of the plaintiffs in each of the causes (cause numbers are those of the Cass County court) set out below:

(1) In Cause No. 33505, Missouri Pacific Railroad Company in the amount of $3,131.37.

(2) In Cause No. 33571, The Kansas City Southern Railway Company in the amount of $3,803.54.

(3) In Cause No. 33578, the St. Louis-San Francisco Railroad Company in the amount of $2,642.94.

(4) In Cause No. 33579, Panhandle Eastern Pipe Line Company in the amount of $4,976.75.

(5) In Cause No. 33580, Chicago-Rock Island & Pacific Railroad Company in the amount of $912.40.

(6) In Cause No. 33584, The Kansas City Power and Light Company in the amount of $13,486.25.

(7) In Cause No. 33591, United Telephone Company of Missouri in the amount of $1,699.91.

(8) In Cause No. 33592, Southwestern Bell Telephone Company in the amount of $10,367.14.

(9) In Cause No. 33593, Missouri Public Service Company in the amount of $13,-980.60.

The judgments are reversed and the causes remanded with directions to enter judgments for plaintiffs for the amounts of taxes they paid under protest, as set forth supra.

All of the Judges concur.

      . All citations are to RSMo 1969 unless otherwise indicated.


author: MORGAN, Judge.

text:
    Joan ISEMINGER and John Iseminger, Respondents, v. Deborah Kay HOLDEN, Appellant.
    No. 59338.
    Supreme Court of Missouri, En Banc.
    Dec. 30, 1976.

      Edgar S. Carrol, Warrensburg, for appellant.
    J. Kirk Rahm, Warrensburg, for respondents.
   MORGAN, Judge.

The application of appellant-defendant to have this cause transferred from the Kansas City District of the Court of Appeals having been sustained, we consider the same “as on original appeal.” Mo.Const., Art. 5, Sec. 10.

Respondents-plaintiffs, husband and wife, filed suit wherein they alleged that defendant negligently caused her motor vehicle to strike the automobile in which plaintiffs were riding. Recovery was sought for personal injuries, loss of consortium and certain medical expenses. To establish the same, counsel for plaintiffs had four exhibits admitted and passed to the jury. The first page of the hospital record (Exhibit 2) had the following printed legend and (underlined) inserts:

FAMILY NAME FIRST NAME
Iseminger. L. Joan
HOSPITALIZATION GROUP CONTRACT# INSURANCE
1.
2. BCBS Sub: John 0. Gr. 4825 Cert. X8S571
3. American Republic

During cross-examination of the husband, defendant’s counsel was allowed to establish over objection that some if not all of the medical expenses of the wife had been paid by plaintiffs’ hospitalization insurance companies, as reflected in the following dialogue:

Q. Now the hospital bills that you have indicated to the jury that you are obligated for; actually in truth and fact, you have insurance to cover those, don’t you, Mr. Iseminger?
MR. RAHM: Your Honor—
MR. CARROLL: It is in evidence, Judge; it is in the hospital records.
THE WITNESS: No, sir; I didn’t have enough money to pay them all.
Q. (By Mr. Carroll) I asked you if you had Blue Cross and Blue Shield and some other type of insurance?
MR. RAHM: Before you answer the question—
(THEREUPON, THE FOLLOWING DISCUSSION WAS HAD AT THE BENCH BETWEEN COURT AND COUNSEL, OUT OF THE HEARING OF THE JURY, TO WIT:)
MR. RAHM: Your Honor, it is my understanding that under the law that it does not matter if there might have been some collateral source or help on part of the bills and I understood at least part of these bills there was some applicable insurance coverage and I at this time ask that — I do object to the question for that reason; that it violates the collateral source rule.
MR. CARROLL: Your Honor, Mr. Rahm, put into evidence the admission sheet (sic) of the hospital which shows that Mr. Iseminger had this type of coverage. I think he’s already placed it before the Jury.
THE COURT: Overruled.
Q. (By Mr. Carroll) So you did have that hospitalization coverage with Blue Cross and Blue Shield?
A. Yes, sir; I did.
Q. And you also have coverage with American Republic?
A. Yes, sir.
Q. So you had two policies covering these hospitalizations?
A. Yes.
Q- And did that pay all of the hospital bills?
A. To the best of my knowledge, it paid the hospital bills; yes.
Q. And some of Dr. Jones’ bill, was that paid by Blue Cross?
A. I do not know.
Q. Has he billed you for this Six Hundred Seventy-one Dollars ($671.00) he talked about?
A. We have had a statement but I did not look at it myself, so I don’t know the total amount.
MR. CARROLL: I believe that’s all I have.

When the jury returned a verdict for defendant, plaintiffs moved for a new trial. The trial court sustained the motion after concluding that admission of evidence of payments of medical bills by the insurance companies was violative of the “collateral source doctrine.” Defendant then appealed. We now affirm.

“Under the collateral source rule or doctrine, which is a well-established rule in the law of damages, a wrongdoer is not entitled to have the damages to which he is liable reduced by proving that plaintiff has received or will receive compensation or indemnity for the loss from a collateral source, wholly independent of him, or, stated more succinctly, the wrongdoer may not be benefited by collateral payments made to the person he has wronged. This is an established exception to the general rule that damages in negligence actions must be compensatory.” 25 C.J.S. Damages § 99(1), pp. 1011-1012. Such is the law in Missouri as declared in Kickham v. Carter, 335 S.W.2d 83, 89-90 (Mo.1960), to-wit:

On direct examination plaintiff testified that his hospital bills amounted to about $400. On cross-examination, over objection of plaintiff, counsel was permitted to ask plaintiff if he had Blue Cross, and if any of his bills were paid by Blue Cross. In answer to those questions plaintiff testified that all of his hospital bills had been paid by Blue Cross. Plaintiff contends that the trial court erred in admitting that evidence. No Missouri ease has been cited which deals with the specific question presented, but the courts of this state have followed the general rule that insurance payments received by the plaintiff cannot ordinarily be set up by the wrongdoer in mitigation of damages. Baker v. Fortney, Mo.App., 299 S.W.2d 563; Wells v. Thomas W. Garland, Inc., Mo.App., 39 S.W.2d 409. It is our view that plaintiff was entitled to recover reasonable hospital expenses incurred as a result of injuries resulting from the negligence of defendant even though such expenses were actually paid by the Blue Cross organization in response to its contract with plaintiff and hence evidence of such payment was wholly immaterial in this action. Upon principle there would appear to be no logical reason for defendant to receive the benefit of hospitalization payments (in the nature of insurance) made by an organization such as Blue Cross to which plaintiff had no doubt made contributions in accordance with a membership agreement. While there is some division of opinion, we think our view is in accord with the weight of authority generally. See 15 Am.Jur. Damages, § 201, p. 617; 25 C.J.S. Damages § 99, p. 647; Clough v. Schwartz, 94 N.H. 138, 48 A.2d 921; Roth v. Chatlos, 97 Conn. 282, 116 A. 332, 22 A.L.R. 1554; Capital Products, Inc. v. Romer, 102 U.S.App.D.C. 279, 252 F.2d 843; and Grayson v. Willims, 10 Cir., 256 F.2d 61.
Defendant Carter in his brief does not contend that the evidence was admissible but is content to briefly assert that the plaintiff was not prejudiced by the evidence as indicated by the fact that he received a substantial verdict. We do not agree. Errors of that nature are presumed to be prejudicial. Moreover, as a result of that evidence, plaintiff likely was prevented from recovering a $400 item and may have been prejudiced generally, in the eyes of the jury, because he attempted to recover an item which he later admitted he had not paid. We accordingly rule that the error was prejudicial to plaintiff.

Compare Collier v. Roth, 434 S.W.2d 502, 506 (Mo.1968) and Hamilton v. Slover, 440 S.W.2d 947, 957-958 (Mo.1969).

Defendant does not challenge the collateral source doctrine or that it is part of the law of this state. However, argument is made that the same is not applicable in the instant case because plaintiffs waived any protections they might have had thereunder when they placed in evidence, without limitation, an exhibit reflecting the presence of insurance. To sustain the argument that the “coverage” thus exposed by plaintiffs became a legitimate subject for unlimited cross-examination, defendant cites two cases: Young v. Sinclair Refining Company, 92 S.W.2d 995 (Mo.App.1936) and Grantham v. Herod, 320 S.W.2d 536 (Mo.1959).

In Young, a contract was introduced into evidence by the defendant-appellant without limitation as to the purpose for which it might be used. The contract contained certain stipulations requiring defendant-appellant to carry liability insurance. A good deal of direct examination regarding the contract was carried out by defense counsel. When plaintiff’s counsel in his closing argument commented on the existence of liability insurance, defense counsel objected. The court, at page 1002, said:

Certainly, such objection is not open to appellants where they introduced the contract in evidence without limitation as to the purposes for which it might be used. The rule which forbids the mention of liability insurance held by a party to a litigation has no application where the complaining party himself introduces such evidence. He thereby waives any immunity, to which he may or may not be entitled, against its mention or consideration. Whether it was competent or incompetent, the appellants cannot now complain, since they offered the contract in evidence themselves.

In Grantham, plaintiff offered as part of his case in chief for damages the repair bill for his automobile upon which appeared the notation: “Mail Copy to — Elliot Ins. Agency, Buckner, Mo.” The defendant, upon cross-examination of the plaintiff, inquired into the identity and interest of the Elliot Insurance Agency, to which plaintiff made objection. The trial court required answer which disclosed that the Elliot Agency insured the plaintiff vehicle. Against the contention that the evidence of insurance coverage was improperly received, it was held, at page 538, that:

Plaintiff placed the exhibit in evidence without limitation of any kind. He was, of course, subject to legitimate cross-examination concerning the complete exhibit. Cf. Young v. Sinclair Refining Co., Mo.App., 92 S.W.2d 995, 1002 [10] [11, 12]. The fact, standing alone, however, that the notation to mail the repair bill to a named insurance agency was on the exhibit would not justify the disclosure, over proper objection, of the further information that plaintiff had his automobile insurance with that agent if such was wholly irrelevant and immaterial under any view of the issues. (Emphasis added.)

In Young, the court obviously concluded that an exhibit once admitted by a party was subject to unlimited examination by an adversary notwithstanding that disclosure of portions thereof might be violative of some accepted rule of law. As said therein, this was true whether the fact disclosed was “competent or incompetent.” Such a rigid approach, we believe, places too much of a “cat and mouse” atmosphere into the trial of a cause and is not conducive to a fair resolution thereof. The court in Grant-ham undoubtedly had the same view when it proscribed a disclosure from an exhibit of facts “wholly irrelevant and immaterial under any view of the issues.” Application of such a test in the instant case would sustain the trial court order granting a new trial, because damages allegedly caused by defendant were not to be mitigated by reason of payments to plaintiffs from a collateral source (Kickham v. Carter, supra) and insofar as defendant’s liability was concerned such payments were “wholly irrelevant and immaterial.” (Grantham v. Herod, supra).

Upon reflection, however, we are convinced that the “test” itself should be modified somewhat to cover an obvious possibility. What if the document or some other exhibit already in evidence is in fact “irrelevant" and “immaterial" but yet tends to reflect favorably on the party admitting the same, thus, necessarily being to the prejudice of the adversary? Certainly, the party so prejudiced must have an opportunity to make an effort to remove the same by cross-examination; and, it is for the trial court, in the first instance, to resolve whether or not such an undue advantage had been created.

Does such a modification of the “test” change the result in the instant case? We think not. Why plaintiffs’ counsel had the hospital admission sheet brought to the attention of the jury without making some effort to cover or conceal the possibility that recovery for the medical bills had been had from an insurance company is unknown— under the facts shown, it was undoubtedly inadvertent. Nevertheless, to those having tried jury cases one truth would be evident, i. e., no advantage was created for plaintiffs by their divulging the same.

Under the test, as modified, admission of Exhibit 2 without limitation as to use did not provide a legitimate basis for cross-examination of plaintiff[s] concerning payments received from sources other than the defendant (tort-feasor). Granting a new trial to correct the erroneous ruling was proper.

The judgment is affirmed.

All concur.


text:
    STATE ex rel. STATE HIGHWAY COMMISSION, Appellant, v. Edwin J. JASPER et al., on exceptions of V. B. Hurt et al., Respondents.
    No. 59473.
    Supreme Court of Missouri, En Banc.
    Dec. 30, 1976.

      Lester A. Paff, Kirkwood, for appellant.
    Charles E. Hansen, Union, for respondents.
   MORGAN, Judge.

The appellant, Missouri State Highway Commission, initiated this action to condemn certain properties presumably needed to improve and relocate Route 100 in Franklin County. Respondents, V. B. and Marie Hurt, as owners of a part thereof were awarded $8,600 by the appointed Commissioners; but, after a trial to a jury of their exceptions, a verdict was returned for them in the amount of $17,500. The commission appealed to the Court of Appeals, St. Louis District, from the judgment entered thereon and we thereafter sustained its application to transfer the cause to this court.

The commission presents only one point on appeal, wherein it contends: “The court erred in admitting over proper objection hearsay evidence by defendants’ expert witnesses as to the purchase prices of comparable sales.” A review of the record pertaining to one of such “experts” should be adequate to identify and resolve the problem.

One witness for the landowners was Thomas F. Neher. He identified himself as a graduate of the University of Missouri with extended experience as a broker and appraiser of real estate. He gave a detailed description of respondents’ property both before and after the taking and then was asked: “Mr. Neher, do you have an opinion of the value of Mr. Hunter’s property immediately prior to the condemnation . and . . . immediately after . . ?” Counsel for the state then objected that “there has been no proper foundation laid in terms of value ... we have heard absolutely no value testimony whatsoever.” Landowner’s counsel then asked: “In arriving at your values, Mr. Neher, did you make an investigation of properties comparable to Mr. Hurt’s . . . ?” The witness, between objections, testified that he had based the valuation in part on “comparable sales in the community” and had verified the sale prices thereof by talking “to either the seller or the buyer or . the broker who handled the transaction . they were all verified by one of the three or, in some instances, all three.” Thereafter, details of some of the other transactions were given.

Evidence as to comparable sales has long been accepted in this state as one of the most reliable of factors available to determine the “fair market value” of the property to be taken.

As this court said in State ex rel. State Highway Com’n of Mo. v. Kimmell, 435 S.W.2d 354 (Mo.1968), at pages 356-357:

Testimony of the specific prices paid in other sales is hearsay and not admissible if based on information learned from others. State ex rel. State Highway Com mission v. Barron, Mo., 400 S.W.2d 33; Missouri Public Service Co. v. Hunt, Mo. App., 274 S.W.2d 27; McKinney v. Lynch, Mo.App., 45 S.W.2d 874. We hardly need cite authorities to the effect that a witness may not narrate supposed facts told to him by another, when such evidence is offered to prove the fact thus asserted. 31A C.J.S. Evidence §§ 192, 193. However, an expert testifying on values may base his opinions in part upon his investigation and his inquiries concerning other sales for, in that context, these things merely enter into his general qualifications and experience, and constitute background material. Barron, supra; State ex rel. State Highway Commission v. Bloomfield Tractor Sales, Inc., Mo.App., 381 S.W.2d 20, 23 et seq. In determining whether a collateral sale is one of comparable property and thus admissible, the trial court has a wide discretion. City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839; State ex rel. State Highway Commission v. Koberna, Mo., 396 S.W.2d 654. In the latter case it is said that unless the differences are such as to make the evidence irrelevant as a matter of law, such dissimilarity should go to the weight of the evidence rather than to its admissibility, 396 S.W.2d loc. cit. 662, leaving the distinctions to be developed further on cross-examination. Evidence of comparable sales must be of sales made when the seller is willing but not obliged to sell, and where the buyer is willing to purchase but is not compelled to do so.

The rationale upon which the admission of such evidence is predicated was spelled out recently in State ex rel. State Highway Commission v. Carlson, 463 S.W.2d 74 (Mo.App.1970), at page 78, as follows:

We recognize that testimony given by an expert explaining the basis of his opinion of value or of those factors bearing on value, even when logically relevant, tends to suggest collateral considerations. It may be an ingenuous hope that the jury will always understand that the hearsay testified to by the expert were only matters considered by him in reaching his opinion, and not independent proof for it. Yet, any disadvantage which might result from the use of such evidence is more than compensated by the advantage of a more enlightened basis for its ultimate determination of value. So, while the tendency is to admit any evidence which sheds light on the question of value, it is left to the discretion of the trial judge “to keep it within bounds”, State ex rel. State Highway Commission v. Barron, 400 S.W.2d l. c. 37[8]; State ex rel. State Highway Commission v. Bloomfield Tractor Sales, Inc., 381 S.W.2d l. c. 24[1, 2], to exercise case that false issues are not suggested and that the jury is not otherwise misled. In re Armory Site in Kansas City, Mo., 282 S.W.2d 464, 472[17].

The record before us reflects that “the comparable sales” brought to the attention of the jury were identified properly as one of the background factors upon which the expert witness had based his opinion and thus were done in conformity with the existing law.

The judgment is affirmed.

SEILER, C. J., and BARDGETT and FINCH, JJ., concur.

HENLEY and DONNELLY, JJ., concur in result.

HOLMAN, J., dissents.