author: STERNBERG, Justice.

text:
    Kenneth Lee GRIFFIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Sept. 19, 1978.
    Rehearing Denied Oct. 31, 1978.
    Jack E. Farley, Public Advocate, Larry H. Marshall, Asst. Public Advocate, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Mark F. Armstrong, Asst. Atty. Gen., Frankfort, for appellee.
   STERNBERG, Justice.

By judgment of the Warren Circuit Court the appellant was found guilty of first-degree sodomy (KRS 510.070(l)(a)) and kidnapping (KRS 509.040(l)(b), (c)). He was committed to the custody of the Bureau of Corrections to serve a sentence of 20 years for the former offense and 20 years and one day on the latter. The sentences were ordered to run consecutively. This appeal is from the kidnapping conviction only. The appellant argues three grounds for reversal.

The appellant admits anal intercourse with the complaining witness; however, he contends that it was by consent and at the solicitation of the Commonwealth’s witness Robert Lyon. His evidence tending to support his defense contradicted that of the Commonwealth. The jury was entitled to reject the testimony offered by the appellant and to accept that offered by the Commonwealth, or to reject that offered by the Commonwealth and accept that offered by the appellant. It chose to believe the Commonwealth’s witnesses. A statement of the Commonwealth’s evidence is necessary to demonstrate the fallacy of the appellant’s alleged errors.

On Saturday, June 25,1977, at 9:00 p. m., Robert Lyon, 17 years of age, reported to work at the Park City Daily News, a local Bowling Green, Kentucky, newspaper. At about 2:00 a. m. Lyon left his job on a coffee break, ostensibly for the purpose of getting something to eat and to look for a friend. He was unable to locate his friend, and while driving back to work he was stopped by what he thought were two men and a woman. One of the men pulled Lyon out of the car and drove it to a house known as 518 Kentucky Street, Bowling Green, Kentucky, about one-half block away. The appellant and one of the other persons held Lyon and forced him to go with them into the house where the car had been driven. The appellant was dressed as a woman and Lyon was of the opinion that he was in truth and in fact a woman. Once Lyon was inside the house, the two men left the premises and left Lyon alone with the appellant. The appellant then announced that he had a 38-caliber handgun in his purse. He removed Lyon’s clothing and threw him face down on a couch. He then rubbed Lyon’s rectum with vaseline and committed anal intercourse. The appellant continued this conduct for about one and one-half hours. In an effort to change positions, the appellant momentarily released Lyon, who jumped up, grabbed a bottle and hit the appellant on the head. While the appellant was suffering from the blow to his head, Lyon hurriedly made his escape through a window, but without clothing other than one sock. He grabbed a towel from his automobile as he ran by in his escape and ran back to the place of his employment, where he secured assistance.

As to the charge and conviction of kidnapping, we need to reflect on the definition of the crime (KRS 509.040) and the exemption provision of KRS 509.050. KRS 509.040, the kidnapping statue provides:

“(1) A person is guilty of kidnapping when he unlawfully restrains another person and when his intent is:
(a) To hold him for ransom or reward; or
(b) To accomplish or to advance the commission of a felony; or
(c) To inflict bodily injury or to terrorize the victim or another; or
(d) To interfere with the performance of a governmental or political function; or
(e) To use him as a shield or hostage.
(2) Kidnapping is a capital offense unless the defendant voluntarily releases the victim alive, substantially unharmed, and in a safe place prior to trial, in which case it is a Class B felony.”

KRS 509.050, the exemption statute, provides:

“A person may not be convicted of unlawful imprisonment in the first degree, unlawful imprisonment in the second degree, or kidnapping when his criminal purpose is the commission of an offense defined outside this chapter and his interference with the victim’s liberty occurs immediately with and incidental to the commission of that offense, unless the interference exceeds that which is ordinarily incident to commission of the offense which is the objective of his criminal purpose. The exemption provided by this section is not applicable to a charge of kidnapping that arises from an interference with another’s liberty that occurs incidental to the commission of a criminal escape.”

The appellant argues that even though the jury found him guilty of kidnapping, the Commonwealth’s evidence that Lyon was forced to go a distance of only one-half block and was forcibly restrained for a period of only one and one-half hours brings the case within the exemption provided for by KRS 509.050 and mandates a finding of not guilty of the charge of kidnapping.

In order to determine whether the kidnapping exemption is applicable, we must apply a three-pronged test. First, it must be determined whether the appellant’s criminal purpose was the commission of a criminal offense defined outside KRS Chapter 509. Secondly, it must be determined whether the interference with Lyon’s liberty occurred immediately with and incidental to the commission of the offense of sodomy. Finally, it is necessary to determine whether the interference with Lyon’s liberty exceeded that which is ordinarily incident to the commission of the act of sodomy. The three elements of the exemption statute are joined with the conjunctive “and.” If any one of these three factors is not mandated by the evidence, then the appellant is not entitled to the benefit of the exemption statute. Simply stated, the appellant must jump through three hoops and the failure to jump through any one of the three hoops is a failure to establish his entitlement to the benefit of the exemption statute. The appellant failed to at least clear the third hoop and thereby is not entitled to the benefit of KRS 509.050. We find it unnecessary, therefore, to determine whether the appellant cleared hoops one and two.

The offenses of kidnapping and the applicability of the exemption provided by KRS 509.050 have been the subject of much recent consideration and writing by this court. We deem it unnecessary at this time to go into a further instructive dialogue. Calloway v. Commonwealth, Ky., 550 S.W.2d 501 (1977); Spencer v. Commonwealth, Ky., 554 S.W.2d 355 (1977); Timmons v. Commonwealth, Ky., 555 S.W.2d 234 (1977).

The trial judge did not err in refusing to grant a directed verdict of not guilty.

The appellant next argues that the prosecutor had no authority to elect to try the appellant for a Class A felony of kidnapping. Subsequent to the jurors being qualified by the court and prior to the Commonwealth’s voir dire, the following colloquy took place:

“Mr. Caudill: The Commonwealth moves at this time to prosecute the crime of kidnapping as a Class A Felony in this case, Commonwealth vs. Kenneth Lee Griffin.
Mr. Poole: The defendant would join in on that motion, Your Honor.”

The trial court granted the joint motion and the trial proceeded as if the appellant was being tried for the offense of kidnapping as a Class A felony rather than as a capital offense.

The court, the Commonwealth’s Attorney and counsel for the appellant apparently were all under the erroneous impression that such an election could be properly made. However, KRS 532.030, which had provided for such an election, had been repealed at the 1976 Special Session of the Kentucky General Assembly and the repeal was effective as of December 22,1976. The offense occurred in June, 1977, and the trial commenced in August, 1977, all subsequent to the repeal of KRS 532.030. Consequently, the right of election had ceased to exist. In the event counsel for appellant was aware that the right of election had been repealed, yet, nevertheless, joined in the motion to avoid the possibility of a capital offense conviction, then he would have been playing sharp with the court and could not in good conscience claim error. We prefer, however, to opine that counsel for the appellant, as well as the Commonwealth’s Attorney and the trial court, was not cognizant of the repeal of KRS 532.030. Nevertheless, the appellant was not prejudiced by the election. As a matter of fact, he was benefited by it since the instructions which the court actually gave to the jury limited the penalty on a finding of guilty of kidnapping to confinement in the penitentiary for 20 years or life. The death penalty instruction was not given although authorized. KRS 509.040(2) defines kidnapping as a Class B felony if, and only in the event, the victim is voluntarily released, substantially unharmed, and in a safe place. In the event the victim is not voluntarily released or not substantially unharmed or not released in a safe place, it is a capital offense punishable by death.

Robert Lyon was not voluntarily released or released at all. He made his escape. He was not substantially unharmed, unless you classify one and one-half hours of sodomy and, as Lyon’s said, “I was sore in my anus, I was sore in my privates, my head was sore from where they pulled my hair and hit me with knuckles, and my upper arms were sore where the men were taking me down to the house, a few fingernails stuck in my arms,” as being unharmed. We do not so construe it. The escape was not from a place of safety. Consequently, the appellant was entitled to an instruction on the capital offense of kidnapping, which carried the death penalty. The instructions actually given by the trial judge submitted only a Class A felony offense, which carried a penalty of 20 years to life. Therefore, the appellant actually received more favorable instructions than those to which he was entitled. It is beyond cavil that the instructions given to the jury could have carried, but did not, a provision for the infliction of the death penalty.

The appellant argues that KRS 532.-030 is unconstitutional since it authorizes the death penalty for the capital offense of kidnapping. He suggests that Eberheart v. Georgia, 433 U.S. 917, 97 S.Ct. 2994, 53 L.Ed.2d 1104 (1977), stands for the proposition that the death penalty is cruel and inhuman punishment if inflicted for kidnapping. The appellant then reasons that since the penalty of death is unconstitutional, the alternative penalty of 20 years to life falls with the death penalty provision. The fallacy of this argument is twofold. First, Eberheart does not stand for the proposition that the penalty of death in a kidnapping case is unconstitutional. Eberheart was found guilty of rape and kidnapping. The United States Supreme Court, in disposing of the case, cited Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), as authority for its disposition of the Eberheart case. Coker, however, refers only to the crime of rape. We do not find Eberheart to be dispositive of the present issue. Secondly, the appellant would have this court strike down all of KRS 532.030. Assuming arguendo that the statute providing for the death penalty in a kidnapping case is unconstitutional, it does not necessarily follow that the 20 years to life provision falls with it. In Kentucky Municipal League v. Commonwealth of Kentucky, Department of Labor, Ky., 530 S.W.2d 198 (1975), we said:

“It is a well-established rule that portions of a statute which are constitutional may be upheld while other portions are eliminated as unconstitutional. * * * ”

KRS 446.090 provides:

“Severability. — It shall be considered that it is the intent of the general assembly, in enacting any statute, that if any part of the statute be held unconstitutional the remaining parts shall remain in force, unless the statute provides otherwise, or unless the remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the general assembly would not have enacted the remaining parts without the unconstitutional part, or unless the remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the intent of the general assembly.”

We do not believe that the 20 years to life penalty is so essentially and inseparably connected with and dependent upon the death penalty provision that it is apparent that the General Assembly would not have enacted the 20 years to life provision without enacting the death penalty provision.

Lastly, the appellant states that he was denied a fair trial when the trial court allowed the prosecution to improperly bolster the testimony of the complaining witness. Without objection from counsel for appellant, the Commonwealth’s Attorney interrogated Lyon relative to a written statement to Detective Lancaster and elicited from him that his oral testimony was essentially the same as the written statement. In the interrogation of Officer Helm, the Commonwealth’s Attorney, without objection of appellant’s counsel, elicited from him that the written statement was essentially the same as the account which Lyon gave him when Lyon first reported the event. In his closing argument, the Commonwealth’s Attorney alluded to the written statement and its similarity to the oral testimony given by Lyon. The interrogation and summation of the Commonwealth’s Attorney, if improper, were not such as would raise the impropriety to constitutional proportions. No objection was made either to the interrogation or to the closing argument. In appellant’s brief he writes:

“It must be admitted that this issue has not been properly preserved for appellate review. However, there are many factors which militate in favor of this Court’s consideration of this error on appeal.”

The errors, if any, were waived. McDonald v. Commonwealth, Ky., 554 S.W.2d 84 (1977); Wylie v. Commonwealth, Ky., 556 S.W.2d 1 (1977).

The judgment is affirmed.

CLAYTON, JONES, LUKOWSKY, REED and STEPHENSON, JJ., concur.


source: Caselaw Access Project

author: STERNBERG, Justice. LUKOWSKY, Justice,

license: Public Domain

text:
    Wilson GUNTER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    Rehearing Denied Feb. 27, 1979.

      Jack E. Farley, Public Advocate, Larry H. Marshall, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Mark F. Armstrong, Asst. Atty. Gen., Frankfort, for appellee.
   STERNBERG, Justice.

The appellant, Wilson Gunter, was indicted by the Pulaski County Grand Jury on January 14, 1976, for the murder of Judy Cash (KRS 507.020) and first-degree arson of his own apartment (KRS 513.020). He was convicted of murder and second-degree arson and sentenced to 20 years’ imprisonment on the murder charge and five years’ on the arson charge, the sentences to run concurrently. On appeal to this court the conviction was reversed by reason of prejudicial statements made by the prosecuting attorney in his closing argument to the jury.

Upon return of the case to the Pulaski Circuit Court, the appellant again was tried for murder and first-degree arson, the same offenses on which he was first tried. He was found guilty of murder and second-degree arson as before, and was sentenced to serve 20 years’ imprisonment for murder and ten years’ for arson. These sentences were ordered to run consecutively. On this appeal the appellant cites seven alleged errors.

I

The appellant argues that the trial court erroneously permitted the Commonwealth to introduce proof that he stood mute and did not offer exculpatory evidence after his arrest. On the other hand, the Commonwealth argues that its interrogation was designed to impeach the appellant’s testimony by using his post-arrest statements. Appellant’s trial counsel did not object to any of this questioning, nor did he object to the comments made by the Commonwealth’s Attorney in his closing argument. Since the interrogation was not objected to, its competency is not preserved for appellate review. Wylie v. Commonwealth, Ky., 556 S.W.2d 1 (1977); McDonald v. Commonwealth, Ky., 554 S.W.2d 84 (1977). The argument of the Commonwealth’s Attorney was not preserved for appellate review since it was not objected to and the court afforded an opportunity to pass on its competency. Brown v. Commonwealth, Ky., 551 S.W.2d 557 (1977).

II

The appellant next charges that the trial judge erroneously permitted the Commonwealth’s Attorney to comment on the failure of his wife to appear and testify. He argues that such conduct on the part of the court was error of such magnitude that it requires reversal.

The appellant was being questioned by his own paid counsel, as follows:

“Q146. When you got there, what did you do?
A. I called my wife, my ex-wife, my wife.
Q147. Are you still married to her?
A. Yes, sir.
Q148. Where did she live?
A. Where did she live?
Q149. Yes?
A. On Middlebrook Pike.
Q150. Explain to us the circumstances, your conversation with your wife?
A. She had mononucleosis, she had been sick two or three weeks.
Q151. Now
Hon. Harold D. Rogers
Object to this unless the wife is present to testify.
Your Honor, we cite the Coffey rule, move to set aside and strike.
At Bench Conference Between the Court and Counsel Out of Hearing of Jury.
The Court
What has happened here
Hon. John G. Prather, Jr.
He can describe it from the fact that he called his wife.
Hon. Harold D. Rogers
The person that’s not here to testify, you can’t repeat what they said, can’t testify, not subject to cross-examination. The Court
I don’t think we want to say too much about that person not being here.
Hon. Harold D. Rogers
No way for me to object to the hearsay rule.
The Court
1 am going
Hon. John G. Prather, Jr.
I can instruct him not to say what she said.
The Court
Did you make some kind of motion?
Hon. John G. Prather, Jr.
Yes, I moved to set aside the swearing of the jury and to continue the case based on the comment of the prosecution that the wife was not here.
Hon. Harold D. Rogers
I didn’t say that.
The Court
Well, overruled, subject to what we have said here.
Testimony Resumed Before Jury.
Q153. Who did you call?
A. My wife.
Q154. What time was it when you called her?
A. Approximately ten thirty.
Q155. How long did you talk to her?
A. I’d say about thirty, forty-five minutes or an hour.
Q156. That was a long time, did you go to see her?
A. No. '
Q157. Why?
A. She had mononucleosis and I had a
Hon. Harold D. Rogers
Object.
The Court
Overruled.”

Counsel for the Commonwealth argues that his reference to the appellant’s wife was proper. We think that it was. First of all, this colloquy is not of the substance that this court criticized in the former consideration and reversal of this case. It does not contain the impropriety discussed in Gossett v. Commonwealth, Ky., 402 S.W.2d 857 (1966). Appellant’s counsel himself was attempting to place before the jury dialogue that appellant had with his wife in such a manner that it could not be attacked by the Commonwealth. As we view the statements of the Commonwealth’s Attorney, there was no comment on the failure of the appellant’s wife to appear and testify. The proposed testimony of appellant was purely hearsay and the objections of the Commonwealth’s Attorney were proper and well taken. The court did not err in refusing to grant a mistrial.

Ill

The appellant claims to have been prejudiced when the court permitted the prosecuting attorney to read the transcript of testimony given by two witnesses at the former trial because no good-faith effort was made to secure their attendance. They had formerly testified, but were not present when called by the prosecuting attorney to testify in the present action. Subpoenas had been issued for each of them, without avail. They were reported to be residing outside the Commonwealth of Kentucky, one in Tennessee and the other in Indiana. As these two witnesses were called to testify, counsel for appellant objected to the use of their former testimony because, “The proof taken was not taken for the purpose of being read at a later trial — it was proof taken for circumstances then and there existing, we would not have an opportunity to examine her at this point as to any discovery evidence. Let me see your testimony? What efforts were made to get her here?” The appellant did not object to the use of this testimony on the grounds that no good-faith effort had been made to secure the attendance of these witnesses. The nature of the objection now made by appellate counsel to the use of this testimony was not raised in the trial court so that the trial judge could be afforded an opportunity to pass on it; consequently, it has not been preserved for review. McDonald v. Commonwealth, Ky., 554 S.W.2d 84 (1977).

IV

The appellant argues reversible error because the trial judge permitted witnesses to testify as to statements made by the deceased relating to her association with the appellant. On the first appeal of this case we considered the admissibility of this same testimony and said:

“. . . We have studied the character of the testimony to which we have been referred and, when the particular questions are considered separately, some may be technically erroneous; however, when these questions are considered together and in their relation to the whole case, they are not considered to be prejudicial.”

The appellant argues that “The law of the case is that it was error to introduce this incompetent hearsay evidence.” Very seldom, if ever, there is a trial of any magnitude that is error free. The error or errors in a proceeding entitling an accused to reversal of a judgment must be of such magnitude that it cannot reasonably be held that the accused got a tolerably fair trial. McDonald v. Commonwealth, Ky., 554 S.W.2d 84 (1977). The appellant has failed to call this court’s attention to any occurrence on his second trial, the one presently on appeal, that would raise the challenged evidence above its nonprejudicial effect. The law of the case is, therefore, that we will not reconsider the admissibility of this evidence.

V

The appellant next argues that he was placed in double jeopardy when compelled to go to trial the second time for the first-degree arson charge. Counsel for the Commonwealth concurs, as does this court.

We note that on appellant’s first trial, in addition to being charged with murder, he was charged with the offense of first-degree arson. The jury was instructed on both first and second-degree arson, and it found him guilty of arson in the second degree. This had the effect of acquitting him on the charge of first-degree arson. Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970).

In Davis v. Commonwealth, Ky., 561 S.W.2d 91 (1978), we went into a detailed discussion of the subject of double jeopardy, and we analyzed the nature of the protection afforded by it. In doing so, we spoke of the holding in Price v. Georgia, supra, in the following language:

“Price was tried for murder and found guilty of the lesser included offense of voluntary manslaughter. After the verdict had been set aside by reason of a trial error he was again tried for the same offense of murder, was again found guilty of voluntary manslaughter, and was sentenced to 10 years’ imprisonment. Under Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), his conviction of manslaughter at the first trial constituted an acquittal of the murder charge, so he should not have been retried for murder. The second conviction having been affirmed on appeal to the Georgia courts, the Supreme Court granted certiorari and reversed. Rejecting the argument that because Price had not been convicted of murder the second trial of that charge was harmless error (the same basis on which we affirmed Davis’ conviction of carnal knowledge though he had been improperly tried at the same time for rape), the Supreme Court said this:
‘The Double Jeopardy Clause . is cast in terms of the risk of hazard of trial and conviction, not of the ultimate legal consequences of the verdict. To be charged and to be subjected to a second trial for first-degree murder is an ordeal not to be viewed lightly. Further, and perhaps of more importance, we cannot determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense of voluntary manslaughter rather than to continue to debate his innocence.’ Price v. Georgia, at 398 U.S. 331, at 90 S.Ct. 1762.
Likewise it is in this case. Having been acquitted of a crime that was an essential element of the rape charge, Davis could not be tried for rape, and we cannot determine whether the trial of that charge induced the jury to find him guilty of the alternative offense of carnal knowledge. . He therefore is entitled to be tried on the carnal knowledge count alone, unalloyed with the rape and detaining charges.”

To paraphrase Price, we find we cannot determine whether the trial of the first-degree arson charge induced the jury to find the appellant guilty of the lesser offense of arson in the second degree. Therefore, he is entitled to be tried on the second-degree arson charge alone, unalloyed with arson in the first degree.

The Attorney General argues, however, that this issue was not raised in the trial court and therefore cannot be raised for the first time in the. appellate court. In Sherley v. Commonwealth, Ky., 558 S.W.2d 615 (1977), we said:

“Sherley did not present this issue of double jeopardy or multiple prosecution to the trial court. However, we are persuaded that failure to preserve this issue for appellate review should not result in permitting a double jeopardy conviction to stand. . . . ”

In view of Sherley, supra, we are of the opinion that the failure of the appellant to raise this double jeopardy question in the lower court did not constitute a waiver of the right to raise the issue for the first time on appellate review.

VI

The appellant claims that he was denied due process of law by reason of the trial court’s ordering his sentences to run consecutively rather than concurrently as they had after his first conviction. This issue becomes moot in view of our holding that the appellant is not now triable on the offense of arson in the first degree.

VII

Lastly, the appellant charges that the reasonable-doubt instruction given by the court to the jury was constitutionally infirm. In both the arson and murder charges, the court instructed the jury it could find the appellant guilty “if, and only if, you believe from the evidence beyond a reasonable doubt all of the following . .” Thereafter, the court, on each count for which the appellant was being tried, defined reasonable doubt as,

“The term ‘reasonable doubt’ as used in these instructions means a substantial doubt, a real doubt, in that you must ask yourself not whether a better case might have been proved, but whether, after hearing all the evidence, you actually doubt that the defendant is guilty.”

The infirmity argued by the appellant is that the use of the reasonable-doubt standards as defined by the court permits a conviction upon a showing of substantial doubt rather than reasonable doubt, which in and of itself enhances the obligation of the accused in establishing his innocence.

In Urbanski v. Commonwealth, Ky., 526 S.W.2d 7 (1975), the appellant challenged as erroneous an instruction on reasonable doubt which informed the jury that it must ask itself not whether a better case might have been proven, but whether, after hearing and considering all of the evidence, it sincerely doubted the defendant was guilty. We rejected this argument and upheld the instruction. The same attack has been made many times and on each occasion we have upheld the instruction. However, the appellant now takes comfort in the thought that Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), requires that this instruction be condemned and forever banished from our use. On June 8, 1978, this court amended RCr 9.56, dealing with reasonable doubt, and stated, “The instructions should not attempt to define the term ‘reasonable doubt.’ ” Furthermore, in Whorton v. Commonwealth, Ky., 570 S.W.2d 627 (1978), we disposed of whether such an instruction was proper in the following language:

“ * * * The long and short of it is that we can no longer approve this definition, but unless and until the highest judicial authority is willing to hold it constitutionally fatal, neither will this court do so. * * * ”

The judgment of the Pulaski Circuit Court finding the appellant guilty of murder is affirmed, and insofar as it finds the appellant guilty of arson in the second degree it is reversed.

PALMORE, C. J., and CLAYTON, JONES and STEPHENSON, JJ., concur.

LUKOWSKY, J., files a dissent, in which REED, J., joins.

LUKOWSKY, Justice,

dissenting.

The majority quite correctly holds that it was prejudicial error to try Gunter for first-degree arson after he was convicted of only second-degree arson at his first trial and that a new trial on the charge of second-degree arson is required. Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). However, the majority affirms the murder conviction thereby tacitly rejecting Gunter’s submission that the double jeopardy violation on the arson charge infects the murder conviction.

This result presupposes that the jury was able to isolate the murder and arson aspects of the joint trial onto separate and distinct projection screens and that the reflections of one had no halo effect on the other. The differential between first-degree and second-degree arson is knowledge or reasonable belief that another person, not an accomplice, is present in the building at the time the fire is set. The murdér charged here was intentional killing by strangulation. The first-degree arson charge was mentioned in the opening statement by the Commonwealth, in the trial judge’s instructions to the jury and in the closing argument by the Commonwealth. The jury could well have believed that one charged with and prosecuted for callously burning an inhabited building would not hesitate to intentionally kill.

The question is not whether Gunter was actually prejudiced by the double jeopardy violation, but whether there is a reasonable possibility that he was prejudiced. Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171, 173 (1963); United States ex rel. Hetenyi v. Wilkins C.A.2d, 348 F.2d 844, 864 (1965), cert. denied sub nom. Mancusi v. Hetenyi, 383 U.S. 913, 86 S.Ct. 896, 15 L.Ed.2d 667 (1966). I can only speculate what would have happened at Gunter’s trial had he been charged only with murder and second-degree arson. Under such circumstances I can not reach the legal conclusion that Gunter could not possibly have been prejudiced by repeated references to his burning an inhabited building. I am unable to reconstruct by hindsight on the basis of reasonable predictability of human behavior, a jurisprudential setting in which a jury could have been immunized, in theory or in fact, from the inflammatory references to callous behavior of which Gunter had been previously acquitted. Levy v. Parker C.A.3d, 478 F.2d 772, 797-799 (1973), cert. denied 420 U.S. 972, 95 S.Ct. 1392, 43 L.Ed.2d 651 (1975).

I would reverse the murder conviction as well as the second-degree arson conviction and remand the entire case for a new trial.

I am authorized to state that REED, J., joins in this dissenting opinion.


author: HOWARD, Judge. VANCE, Judge,

text:
    Richard MAY, Appellant, v. JAMES H. DREW SHOWS, INC., and Workmen’s Compensation Board of Kentucky, Appellees. JAMES H. DREW SHOWS, INC., Cross-Appellant, v. Richard MAY and Workmen’s Compensation Board of Kentucky, Cross-Appellees.
    Court of Appeals of Kentucky.
    Sept. 15, 1978.
    Rehearing Denied Nov. 3, 1978.
    Discretionary Review Denied Feb. 20, 1979.

      John David Preston, Perry & Preston, Paintsville, for appellant and cross-appellee, Richard May.
    Thomas M. Cooper, Landrum, Patterson & Dickey, Lexington, for appellee and cross-appellant, James H. Drew Shows, Inc.
    Before HOWARD, VANCE and WIN-TERSHEIMER, JJ.
   HOWARD, Judge.

This is an appeal from a judgment of the Fayette Circuit Court reversing the finding by the Workmen’s Compensation Board that the claimant was not a seasonal worker and affirming the Board’s decision to award the claimant minimum benefits for permanent partial disability as set forth in Apache Coal Co. v. Fuller, Ky., 541 S.W.2d 933 (1976). Whether the claimant was a seasonal worker and whether Apache should apply are the only two issues raised on both the appeal and cross-appeal.

The claimant, Richard May (hereinafter referred to as May), started working for James H. Drew Shows, Inc. (hereinafter referred to as Drew Shows), when the traveling carnival run by Drew Shows came to his home town of Louisa, Kentucky on July 4, 1974. May worked at the carnival while it was in Louisa, then left with the carnival on its road tour. He was hired as a roustabout, more or less doing anything requested of him by Drew Shows.

While working for Drew Shows that summer, May was in his summer vacation period between his junior and senior year of high school. May testified that this was only a summer job and that he was intending to return to school in September. He also testified that if he had changed his mind about returning to high school, he could have continued working for Drew Shows past September, when school started.

On August 12, 1974, May was driving a truck for Drew Shows from Indiana to Virginia. Around the Lexington area, he got out of the truck to determine which road to take and was struck by an oncoming vehicle. May suffered head injuries and internal injuries. May was earning $85.00 per week at the time of the injury.

Generally, the average weekly wage of the claimant, at the time of the injury, is the basis upon which benefits are computed. KRS 342.140(2) provides for calculating the average weekly wage of seasonal employees and reads as follows:

In occupations which are exclusively seasonal and therefore cannot be carried on throughout the year, the average weekly wage shall be taken to be one-fiftieth (⅛>) of the total wages which the employee has earned from all occupations during the twelve (12) calendar months immediately preceding the injury.

The Board found that May was not a seasonal worker; the trial court reversed this finding and held that May was a seasonal worker. Drew Shows argues that May was a seasonal worker since he was only working at a summer job and since it is common understanding that carnivals do not play in Kentucky during the winter. May states that there was no evidence presented by Drew Shows that he was only going to work during the summer or that Drew Shows’ business was only carried on for a particular season of the year. Both parties cite Department of Parks v. Kinslow, Ky., 481 S.W.2d 686 (1972), in support of their respective contentions, as did the Board and the trial court.

Department of Parks v. Kinslow, supra, addressed the issue of whether Kinslow, whose job was general maintenance work and garbage pickup at Barren River State Park, was a seasonal employee within the meaning of KRS 342.140(2). Although the park was open year round, services were curtailed from October to April. Kinslow worked only from April to October and knew he was only being employed from April to October. The superintendent of the park testified that Kinslow was classified as a seasonal employee.

In Department of Parks, supra, at page 688, the court held that Kinslow was a seasonal employee, and stated:

A classic example of a seasonal occupation is that of fruit picking in California. . The very existence of the Barren River State Park depends on the patronage of tourists during the period from late spring to early fall. In the popular sense, this is seasonal. .

Seasonal is defined in Webster’s New Collegiate Dictionary (1976) as being “1: of, relating to, or occurring at a particular season ... 2: affected or caused by a seasonal need or availability.”

In the instant case, the Board, in its Opinion and Award, stated that the test in determining whether an occupation is seasonal is “. . . not what the Plaintiff intended, but what the job itself was, seasonal or permanent.” This, we believe, is a correct statement of the test.

A summer job for a student is not seasonal merely because the student is only planning to work during the summer, or in the Board’s words, not what the plaintiff intended. Rather, an occupation is seasonal because of what the job itself entails.

Another example of a seasonal occupation, although not as classic as that of fruit picking, is that of a lifeguard at an outdoor pool. Since such pools are only open for swimming during the summer, a job as a lifeguard is clearly seasonal. The job will terminate in the fall, and it does not matter whether the lifeguard is a student who intends to go back to school or is someone who has no plans.

In the instant case, the Board found that May was not a seasonal worker for the reason that there was no evidence presented that May could not have continued working as a truck driver. No testimony was taken of any of the management of Drew Shows. May’s testimony that he could have continued working, if he did not return to school, is uncontradicted.

Drew Shows argues that May was a seasonal worker since carnivals only play in Kentucky during the summer. In support of this contention, Drew Shows cites Department of Parks, supra, at 688, wherein the court stated that it would not accept the analysis that because an occupation, such as fruit picking, was being carried on somewhere in the United States, the migrant worker was not engaged in a seasonal occupation.

There is a distinction we believe should be made that refutes this contention of Drew Shows. The court in Department of Parks, supra, did not reach the issue of whether the same migrant worker, moving to different places in the country in order to work continuously for a year, was or was not a seasonal worker. Had May continued to work for Drew Shows, it is true that he would only have worked carnivals in Kentucky during the summer. However, had May continued to work in other parts of the country with Drew Shows for a year, we do not believe May would be a seasonal worker simply because carnivals do not play in Kentucky during the winter.

That May could have continued working as a truck driver was uncontradicted and therefore the Board’s finding that May was not a seasonal worker was supported by substantial evidence. The trial court could not substitute its judgment for that of the Board’s. The finding by the trial court that May was a seasonal worker is reversed with directions to reinstate the Board’s finding that May was not a seasonal worker.

The other issue raised on this appeal is whether the decision in Apache Coal Company v. Fuller, Ky., 541 S.W.2d 933 (1976), should be applied. May was found by the Board to have a 15% permanent partial disability as the result of a traumatic neurosis.

In the instant case, the Board rendered its Opinion and Award on September 16, 1976, and therein stated that it was increasing May’s benefits from $7.01 to $28.00 per week, subject to the issuance of the mandate of the Supreme Court of Kentucky in Apache. The mandate issued on November 12, 1976.

This Court has stated in Keefe v. O. K. Precision Tool and Die Co., Ky.App., 566 S.W.2d 804 (1978), that the decision in Apache shall not be applied retroactively, but shall apply only to those claims which arose prior to January 1, 1977, and had not been finally decided prior to November 12, 1976. (Emphasis ours). In Keefe, supra, the claimant was awarded pre-Apache benefits for his injury; no appeal was taken by any of the parties after the Board rendered its decision and the decision of the Board became final on May 9, 1976. When Apache was decided, the claimant sought to reopen his award in order to obtain the substantially increased benefits allowed thereunder. This Court held that the doctrine of res judicata applied to bar the claimant from reopening the award.

In the instant case, Drew Shows appealed, within the required 20-day limit, from the Opinion and Award of the Workmen’s Compensation Board. KRS 342.285. Both May and Drew Shows then appealed from the judgment of the Fayette Circuit Court. KRS 342.990. The appellate procedure has not been exhausted and the award of the Board has not yet become final nor has this case been “finally decided.” We think that May is entitled to receive benefits calculated pursuant to Apache.

The judgment of the trial court is reversed as to the finding that May was a seasonal worker, with directions to reinstate the finding by the Board that May was not a seasonal worker, and affirmed in all other respects.

WINTERSHEIMER, J„ concurs.

VANCE, J., dissents.

VANCE, Judge,

dissenting.

I fully concur in the majority opinion in all aspects except that I would not give application in this case to the rules set forth in Apache Coal Co. v. Fuller, Ky., 541 S.W.2d 933 (1976).


author: BARDGETT, Judge.

text:
    Joseph J. CIGAS et al., Appellants, v. KANSAS CITY LIFE INSURANCE COMPANY, Respondent.
    No. 60461.
    Supreme Court of Missouri, En Banc.
    Feb. 13, 1979.
    Donald E. Raymond, Thomas M. Howell, Howell, Raymond & Raymond, Kansas City, for appellants.
    Reed 0. Gentry, Reggie C. Giffin, Field, Gentry, Benjamin & Robertson, Kansas City, for respondent.
   BARDGETT, Judge.

Plaintiffs-appellants Joseph Cigas and others sued defendant-respondent Kansas City Life Insurance Company in the Circuit Court of Jackson County seeking damages and an injunction, both of which were premised on allegations that respondent, by various acts, caused a deterioration of the area in which plaintiffs live and a diminution of the value of their property. At the close of plaintiffs’ evidence, the circuit court sustained defendant’s motion for a directed verdict. Plaintiffs-appellants filed a motion for new trial which was overruled by operation of law ninety days after its filing. Rule 78.06. The plaintiffs then filed a notice of appeal designating that the appeal was to the Supreme Court of Missouri, however, the circuit clerk of Jackson County inadvertently forwarded the notice of appeal to the Missouri Court of Appeals, Western District, instead of to this court. Subsequently, the Missouri Court of Appeals, Western District, corrected this clerical error and forwarded the notice of appeal and attending documents to this court.

The plaintiffs noted on the notice of appeal and assert in their brief that jurisdiction in this court is premised on art. 5, sec. 3, Mo.Const., as amended 1970, in that this case involves the construction of the constitutions of Missouri and of the United States, and filed suggestions in support of jurisdiction in this court. Plaintiffs contend that the trial court’s sustention of the defendant-respondent’s motion for directed verdict at the close of plaintiffs’ case implicitly constituted a ruling which deprived plaintiffs of damages with respect to their property without due process of law in violation of art. 1, sec. 10, Mo.Const., and the 14th amendment of the United States Constitution. The record reflects the only statement the judge made with reference to the defendant’s motion for directed verdict was, when explaining the disposition of the case to the jury just before excusing them, that he had found and ruled that the evidence would not justify a judgment or verdict for the plaintiffs under the law.

Plaintiffs’ petition raises no issue involving construction of the constitution of Missouri or the United States. Defendant’s motion for directed verdict at the close of plaintiffs’ evidence and the ruling thereon does not indicate the court made any rulings with reference to the constitution of the state of Missouri or of the United States. Nor did the plaintiffs complain in the trial court that any statute was unconstitutional under either of the constitutions.

The issue on this appeal is whether or not the plaintiffs stated a claim upon which relief could be granted and whether or not plaintiffs made a submissible case. In this connection, one of the issues may involve a decision with respect to the powers derived by a corporation organized under the urban-redevelopment corporation act and the legality or propriety of the defendant’s conduct with reference to an urban-redevelopment corporation which defendant had formed. This court is of the view that the appeal in this case may well involve a construction of the urban-redevelopment corporation act but does not involve a construction of either the federal or state constitutions.

For the reasons set forth, this court does not have jurisdiction of the appeal and the appeal is therefore transferred to the Missouri Court of Appeals, Western District.

MORGAN, C. J., RENDLEN, SEILER and SIMEONE, JJ., STOCKARD, Special Judge, and FINCH, Senior Judge, concur.

DONNELLY, J., not sitting.

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

      . By amendment effective January 2, 1979, to art. 5, sec. 3, the jurisdiction of this court was changed; however, the new provision does not confer jurisdiction in this court of this case.


author: RENDLEN, Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Sherman A. TATE et al., Exceptions of J. C. Young et al., Respondents.
    No. 61096.
    Supreme Court of Missouri, En Banc.
    Feb. 13, 1979.

      Thomas E. Cheatham, Asst. Counsel, Missouri State Highway Commission, Jefferson City, for appellant.
    Harold J. Fisher, Woolsey, Fisher, Clark, Whiteaker & Stenger, Springfield, Albert F. Turner, Mountain Grove, for respondents.
   RENDLEN, Judge.

This condemnation case was transferred to this Court after opinion, pursuant to Rule 83.03, in order to reexamine the construction of Rule 81.05(b) relating to premature filing of a notice of appeal. Only the facts relevant to that issue will be stated.

J. C. Young and other defendants excepted to the commissioners’ awards and trial was to the court. On June 21, 1976, the case was submitted and taken under advisement. Four days later, June 25, the court made a docket entry finding the issues against the State Highway Commission and assessing defendants’ damages. The judge’s docket entry states:

Plaintiff’s exceptions to that part of report of commissioners awarding damages to defendants, J. C. Young, Edna Young, Mountain Grove National Bank and Arthur E. Wood, Trustee, denied. Exceptions of said defendants to such part of said report sustained. Judgment in favor of said defendants and against plaintiff in sum of $20,350.00. Costs taxed against plaintiff. Ordered that form of judgment be prepared by counsel for said defendants. JS. (Emphasis ours.)

No further entries by judge or clerk were made at that time.

On July 6, 1976, the Commission filed a notice of appeal from the “judgment entered on June 25, 1976.” Thereafter, on November 3, 1976, a formal judgment was entered by the court. No subsequent notice of appeal was filed.

The Springfield District (now Southern District) of the Court of Appeals ruled it did not have jurisdiction of the matter because the Commission had not filed a timely notice of appeal. The court, relying exclusively on its earlier holding in Pomeroy v. Kympton, 572 S.W.2d 505 (Mo.App.1978), decided that Rule 81.05(b) did not preserve the appeal. Rule 81.05(b) provides,

In any case in which a notice of appeal has been filed prematurely, such notice shall be considered as filed immediately after the time judgment becomes final for purposes of appeal.

In Pomeroy it was held that the rule applies only to notices filed “between entry of judgment and the point where the judgment becomes temporally final for purposes of appeal.”

Neither the language nor purpose of Rule 81.05(b) admit of such limited interpretation. The rule by its terms specifies only one point in time as critical: the point at which a premature notice of appeal shall be considered as filed, namely, the moment “the judgment becomes final for the purpose of appeal.” The appellate court interpreted the rule by engrafting an additional reference point not mentioned in the rule. It would require that any premature notice of appeal to qualify under the rule must be filed after the moment a judgment entry appears. As held by the Court of Appeals in Pomeroy, any such notice filed earlier than that moment (as in the case at bar) cannot meet the rule’s requirements, for “the applicability of V.A.M.R. 81.05 is limited to that period of time between entry of judgment and the point where the judgment becomes temporally final for purposes of appeal.” 572 S.W.2d at 506. We believe this contrary to the language of Rule 81.-05(b) which unambiguously provides that the rule applies “in any case” in which the notice of appeal precedes the time an ap-pealable judgment appears. Further, such interpretation frustrates the purpose of the Rule. Our jurisdictional requirement in Rule 81.04 that a notice of appeal be filed within ten days after the judgment or order appealed from becomes final makes strict demands on attorneys and litigants. Examination of but a few cogent cases demonstrates that it has not always been clear when the final judgment in a particular case appears. See Bolin v. Farmers Alliance Mut. Ins. Co., 549 S.W.2d 886 (Mo. banc 1977); State v. Wilke, 560 S.W.2d 601 (Mo.App.1978); Delta Loan & Fin. Co. v. Osage Outdoor Advertising Co., 552 S.W.2d 56 (Mo.App.1977). Rule 81.05(b) seeks to preserve appeals for litigants whose counsel in an abundance of caution or by mistake file premature notices of appeal in such situations. The Court of Appeals would penalize counsels’ attempts to comply with Rule 81.04 by creating an artificially restricted time period in which Rule 81.05(b) can apply.

In this case the trial court had disposed of all issues and as stated in the docket entry had determined a specific monetary liability of the appellant. The judge’s docket entry reasonably gave the appearance of a judgment under Rule 74.01, and there is no suggestion that counsel attempted to evade the orderly processes of the court in filing the notice of appeal. The judge’s docket entry stated, “Judgment in favor of defendants and against plaintiffs in the sum of $20,350.00. Costs taxed against plaintiffs.” For these reasons we hold that Rule 81.05(b) preserved the appeal in the case at bar. To the extent that Pomeroy v. Kympton, 572 S.W.2d 505 (Mo.App.1978), and other cases hold to the contrary, they must not be followed. The Court of Appeals had jurisdiction to entertain the cause; accordingly, the case is re-transferred to the Court of Appeals, Southern District, for consideration of the merits of the appeal.

All concur.

      . All references are to 1978 Missouri Rules of Court (West) unless otherwise indicated. There has been no change in Rule 81.05(b) since the date the notice of appeal was originally filed in this case.

      . Pursuant to § 483.082, RSMo Supp.1975, this Court’s Administrative Rule 4, 542 S.W.2d XXIII, was promulgated December 1, 1976, effective March 1, 1977. (The relevant sections remain unchanged by the amendments of December 29, 1978, effective January 2, 1979.) Section 4.12 states in relevant part, “The court shall approve the judgments in all civil and domestic relations cases .... The judgment shall be part of the respective case files.” Sections 4.02, 4.09 and 4.10 mandate the keeping of a judge’s docket sheet and a clerk’s docket sheet on which each action in the case, including judgments, must be recorded. Section 4.13 orders an alphabetical card file index of all civil judgments in which a judgment card filed by the defendant’s name shall be placed for each judgment.
      The Court of Appeals did not make clear in its opinion at what point in the above described process the “entry of judgment” occurred which in its view would trigger the saving provision of Rule 81.05(b). One might ask, if the appellate court’s opinion were adopted, is it when the judge approves the judgment drafted by the attorneys, or when the judgment goes into the case file, or when the entry is made on the judge’s or clerk’s docket sheets, or, finally, when the judgment card is placed in the card file index for civil judgments? Although the case at bar was governed by the previous requirements for entry of judgments in circuit courts as found in Supreme Court Rules 74.57-74.62, the Court of Appeals in its 1978 opinion did not state the moment or point in the judgment entry process it perceived as critical under the old or new system. However, in view of our disposition of the case, a detailed analysis of the judgment entry system is not required nor must there be the selection of a finite point in that system (under either the old or new rule) to satisfy the general provision of 81.05(b).


author: SIMEONE, Judge.

text:
    STATE of Missouri ex rel. FORT ZUMWALT SCHOOL DISTRICT et al., Relators-Respondents, v. Francis DICKHERBER, Auditor of St. Charles County, St. Charles, Missouri, Respondent-Appellant.
    No. 60648.
    Supreme Court of Missouri, En Banc.
    Feb. 13, 1979.

      Linda S. Robinson, Ronald L. Boggs, St. Charles, for respondent-appellant.
    Gerald R. Ortbals, Ziercher, Hocker, Tzin-berg, Human & Michenfelder, Clayton, for relators-respondents.
   SIMEONE, Judge.

I.

This is an appeal by appellant, Francis Dickherber, the auditor of St. Charles County from a writ of mandamus entered on May 31, 1977 by the circuit court of St. Charles County commanding the appellant to countersign checks or warrants issued by the treasurer or collector of St. Charles County for the payment of interest on school tax moneys collected by the county. Because the appeal involves the construction of the revenue laws of this state, we have jurisdiction. Art. V, § 3, Mo.Const. For reasons stated below we affirm the judgment of the circuit court.

II.

This proceeding has a long history and involves an interpretation of law relating to the payment of interest on school tax moneys received and deposited by the proper officials of St. Charles County. The precise issue is whether the interest on school tax moneys deposited in authorized depositaries should be paid to the treasurers of various school districts in the county or whether such interest should be credited to the general revenue fund of the county.

This proceeding began on July 18, 1974. On that date relators, various school districts including Fort Zumwalt District R-2 and the treasurer thereof, filed a petition for a writ of mandamus against the collector and treasurer of St. Charles County in the circuit court of St. Charles County. Re-lators sought mandamus against Paul F. Feurestein, collector of the county and Loretta Debrecht, treasurer. Respondent here, Francis Dickherber, was not made a party to that proceeding. Relators alleged that each corporate relator is a six-director school district maintaining a system of public schools in the county. Relators alleged that under appropriate statutes, §§ 165.071, 165.081, and 110.150, RSMo 1969, it was the duty of the treasurer and collector to forward to the respective treasurers of the school districts the interest on school tax moneys collected and invested by them. Demand had been made to forward such interest to the relators but the collector and treasurer failed and refused to do so. Rela-tors prayed that the circuit court issue its writ of mandamus commanding the treasurer and collector to “forthwith deliver to each Treasurer-Relator interest earned on tax moneys received by Respondents in behalf of each Relator-School District . . . Respondents answered and relied upon § 52.360, RSMo 1969 contending that such interest “shall go to the general revenue fund of the County.” Respondents contended that it is the duty of the collector to transfer interest on all funds to the credit of the general revenue fund of the county.

On August 29, 1974 the circuit court made its alternative writ absolute and ordered and enjoined respondents to pay to relators school districts the interest earned on all school tax moneys received and invested by them. That order was appealed to this court, but upon motion of the rela-tors-respondents, the appeal was dismissed on October 13,1975. The writ issued by the circuit court against the collector and treasurer then became final.

Subsequently, on February 19,1976, rela-tors filed a petition for a writ of mandamus against respondent-appellant Francis Dick-herber, the auditor of St. Charles County. In this petition relators school districts and treasurers of such districts alleged that under the law relators were entitled to interest, that a previous writ had been issued against the collector and treasurer but that respondent has failed or refused to sign warrants and prayed the circuit court to issue its writ of mandamus against respondent Dickherber to “perform all acts necessary, including the countersigning of all warrants,” and to deliver to the relators the interest on tax money received on behalf of each school district. Respondent filed his return relying on § 52.350, and after the pleadings joined issue, the circuit court, on May 31, 1977, issued its writ of mandamus against the auditor, Mr. Dickherber.

Two affidavits were also filed. One affidavit was filed by the present collector of St. Charles County, Jim Primm. He stated that to the best of his knowledge all school moneys collected by the county collector’s office during his term have been paid to the treasurer of each six-director school districts as provided in § 165.071. He further stated that at no time during his term had he paid school moneys to the county, treasurer or her office.

The other affidavit was filed by Loretta M. Debrecht, treasurer of the county. She stated that none of the “school monies” collected by the collector’s office during her terms in office have been paid to her as treasurer of St. Charles County. By stipulation it was agreed that the county collector’s affidavit that all school moneys have been paid to the treasurers of the school districts refers only to principal and not to interest.

The writ issued on May 31, 1977 by the circuit court, and which is the subject of this proceeding recited the allegations of the petition that (1) each relator is a six-director school district and the treasurer thereof, (2) that by a writ of mandamus issued on August 29,1974, the county collector and treasurer were ordered to deliver the interest earned on all school tax moneys received and invested and that such previous writ is a final judgment, (3) the county collector and treasurer have attempted to comply with that writ of mandamus but “have been thwarted by the failure and refusal of Respondent [auditor] to countersign warrants for the payment of the interest earned on school tax moneys, (4) pursuant to §§ 165.071, 165.081 and 110.150, it is the “clear, unequivocal and specific duty of the St. Charles County Collector and Treasurer to pay at least monthly to the treasurer of the School Board of all six-director districts all moneys, including the interest on the school funds and, pursuant to Sections 52.370 and 55.160, RSMo., 1969, [sic] it is the duty of the St. Charles County Auditor to countersign any checks and warrants for the aforesaid payments;”, (5) relators have made demands on the auditors to pay interest over to the treasurers of the school districts but that he has refused to “countersign” the warrants, thereby obstructing the treasurer and collector of the county from performing their duties and complying with the earlier writ of mandamus, and (6) that such conduct is arbitrary, capricious and unreasonable. The writ then commanded and ordered the auditor to:

“. . . [A]ffix your signature to whatever checks or warrants have been issued and to whatever checks or warrants may in the future be issued by the Treasurer or Collector of St. Charles County for the payment of interest on school tax moneys and to perform whatever other acts may be required of you to accomplish the delivery of each Treasurer-Relator, the interest on all school tax moneys.”

The auditor appealed that judgment to the Missouri Court of Appeals, St. Louis District but upon motion that court transferred the cause here because of jurisdiction.

III.

On this appeal, the appellant Dickherber makes three points: (1) the court erred in issuing the writ of mandamus commanding him to countersign warrants or checks for payment of interest on school funds to be delivered to the relators because the trial court “misconstrued” §§ 165.071, 165.081, RSMo 1969 and 110.150, RSMo Supp.1975 as being applicable to the payment of interest on school funds to the relators and that the applicable statute rather is § 52.360, RSMo Supp.1975; (2) the court erred in issuing the writ commanding him to countersign warrants or checks because the court lacked jurisdiction in the earlier writ against the collector and treasurer since relators failed to name the appellant-Dickherber as a necessary party as required by Rule 52.04(c) thus making the prior writ “null and void” as against appellant, and (3) the trial court erred in issuing the present writ of mandamus against him because the court lacked jurisdiction since the relators in this proceeding failed to join the collector of St. Charles County in violation of Rule 52.04.

The gist of the appellant-auditor’s argument as we understand it is twofold. First, the governing and applicable statute dispos-itive of this proceeding is § 52.360 because it “designates that the interest on all funds deposited by the collector is to go to the general revenue fund” and not to the school districts. Second, he contends that §§ 165.071, 165.081 and 110.150 do not govern this proceeding. He argues that since, under § 165.071 the collector in a second class county, unlike the collector in a third and fourth class county, pays school moneys directly to the school board and pays no school funds to the county treasurer and the treasurer receives no school funds from the collector, § 110.150 dealing with the county treasurer crediting interest on school funds to those funds is not applicable. Section 165.081 is not governing since that section deals with the county treasurer. Therefore all these sections can be harmonized and under recognized principles of law, the proper section to apply is § 52.360. He makes much of the fact that § 165.071 makes a distinction between the procedure of paying school funds in first and second class and third and fourth class counties.

As to his second point, appellant argues that the trial court erred in basing this writ against the auditor on the prior one filed against the collector and treasurer because the appellant was not named a party. He contends that the original writ was a nullity because the court lacked jurisdiction in that the appellant was a necessary or indispensable party under Rule 52.04 and that such rule is applicable to mandamus proceedings.

The relators-respondents, on the other hand contend that the doctrine of res judi-cata is applicable to the appellant because he is bound by the prior final judgment in mandamus. Relators argue that there is a sufficient identity of parties because of virtual representation and in cases of governmental bodies, its officers, board and commissioners form a single entity with respect to the application of the rule of res judica-ta.

As to the substantive issue, relators argue that § 52.360 is a general statute referring to “all money” received by the county collector and the interest thereon which shall go to the general revenue fund. On the other hand § 110.150(2) is a specific statute which directs interest on school funds and certain other funds to be credited to those funds respectively. Under well settled principles of statutory construction the more specific law prevails over a general one. They conclude by contending that no distinction should exist between first and second class counties and third and fourth class counties so that in the former the school boards would be deprived of interest whereas in the latter they would be entitled to such interest.

IV.

Despite the argument of the appellant-auditor we believe and hold that the trial court did not err in issuing the writ and that the interest on deposited school tax funds should go to the respective treasurers of the relator school districts rather than to the general revenue fund of St. Charles County. Although the various statutes are not as clear as they could be, § 110.150(2) is specific that the interest on “each fund” shall be placed to the credit of school funds.

First, § 52.360 is a general statute relating to money received by county collectors in second class counties. Although § 165.071, subsection 1 requires the county collector in a second class county to pay over to the treasurer of the school board of six-director districts, all moneys to which the board is entitled, we believe that section must be read in conjunction with § 110.150, subsection 2 which specifically authorizes interest on school funds to be credited to those funds. A specific statute prevails over a general one. Laughlin v. Forgrave, 432 S.W.2d 308 (Mo. banc 1968); Layson v. Jackson County, 365 Mo. 905, 290 S.W.2d 109 (1956); Veal v. City of St. Louis, 365 Mo. 836, 289 S.W.2d 7, 12 (1956).

It has been said that effect must be given to every clause and section of a statute so that one section will not conflict or destroy another. State v. Morris, 358 Mo. 1170, 219 S.W.2d 359, 362 (1949). Statutes must be read in pari materia and, if possible, given effect to each clause and provision. Where one statute deals with a sub-ject in general terms and another deals with the same subject in a more minute way, the two should be harmonized if possible, but to the extent of any repugnancy between them the definite prevails over the general. Laughlin v. Forgrave, 432 S.W.2d at 313; Layson v. Jackson County, 290 S.W.2d at 111. Section 110.150, subsection 2 specifically governs the disposition of interest on school tax funds. That section deals with the more particular matter of interest on general funds.

Second, appellant contends that § 110.150 is applicable to the county treasurer and not the county collector so that the county treasurer under that section is to credit the interest on school funds to those funds.

However, § 110.150 can be interpreted to govern the credit of school board interest to the school board funds. Under subsection 2 of 110.150, RSMo Supp.1975, the interest of “each fund shall be computed upon the daily balances with the depositary, and shall be payable to the county treasurer monthly, who shall place the interest on the school funds to the credit of those funds respectively, . . . .” “Depositary” in subsection 2 refers to subsection 1 of § 110.150, where the county court “shall select as the depositaries of all the public funds of every kind and description going into the hands of the county treasurer, . . . .” Section 52.360 requires the county collector in second class counties to deposit “in the de-positaries selected by the county” all money received by him as county collector. Because subsection 2 of § 110.150 deals with the interest on “each fund” upon the daily balances “with the depositary” and not specifically to funds “going into the hands of the county treasurer” (subsection 1, § 110.-150), “each fund” may be construed to mean all funds including the county collector’s funds which are to be deposited “in the depositaries selected by the county” under § 52.360. Thus construed, § 110.150 can be interpreted as requiring that the interest on school funds be placed to the credit of those funds.

Furthermore, we deal here with interest on deposited school funds. We believe that §§ 52.360, 110.150 and 165.071 may be harmonized so that the interest on school funds are to be paid to the school boards under § 110.150, even though under the affidavits the treasurer of the county stated none of the school moneys have been paid to her as treasurer of the county. Section 110.150 specifically deals with specific funds. We believe that § 110.150 may well be applicable so that interest on school funds be placed to the credit of those funds. Section 110.150 can be harmonized with § 165.071 so as to mean that the interest on each fund going into the hands of the county treasurer be paid to the county collector who, pursuant to § 165.071, shall pay to the treasurer of the school board” the interest received by him to which the board is entitled.

Third, the resolution we reach requiring the interest on deposited school tax moneys to be paid to the treasurer of the relators school districts permits equal treatment of all counties and avoids unequal distribution of interest on school funds among the various counties. There is no logical reason to require interest on school moneys to be paid to the school boards in third and fourth class counties and not to second class counties mentioned in § 165.071, subsection 1. Nor is there any policy reasons to so discriminate.

Fourth, the resolution we make comports with the general principle that the interest on public funds designated for a specific purpose follows those funds in the absence of an unequivocal legislative expression otherwise. See annot., 143 A.L.R. 1341, 1342 (1943); State Highway Commission v. Spainhower, 504 S.W.2d 121 (Mo.1973); Pomona City School Dist. v. Payne, 9 Cal.App.2d 510, 50 P.2d 822 (1935). In Pomona, the court expressed the principle in terms of the applicability to school funds. The issues were similar to the present case, and involved the question whether the interest on school funds was to go to the county or to the school district. In the course of the opinion the court stated:

“We are also confronted with the primary law that interest is an accretion or increment to the principal fund earning it, and unless lawfully separated therefrom becomes a part thereof. . This was the common-law rule, and unless the depositary acts clearly demonstrate an intention to deprive school districts of such common-law right to interest accruals, they should retain such interest.” 50 P.2d at 825. See also State Highway Commission v. Spainhower, supra.

We therefore conclude that based upon statutory interpretation and public policy that interest on deposited school funds are payable to the treasurer of the six-director school districts and that the trial court did not err.

Because of the disposition we make on the substantive and central issue it is unnecessary to fully explore the other issue raised by the parties relating to the res judicata and binding effect of the earlier writ of mandamus on the appellant auditor and whether the trial court lacked jurisdiction to issue the prior writ of mandamus because the appellant was not made a party in an alleged violation of Rule 52.04. Suffice it to say that (1) we do not believe the appellant was a necessary or indispensable party to the previous writ of mandamus and did not come within the purview of that rule — see discussion in State ex rel. Emcasco Ins. Co. v. Rush, 546 S.W.2d 188, 195-196 (Mo.App.1977), — and (2) we do not believe, as respondents-relators contend, that the issues are res judicata as to the appellant because of the earlier writ against the collector and treasurer. The doctrine of “virtual representation” is applicable only when the interest of the represented and the representative are so identical that inducement and desire to protect the common interest may be assumed to be the same and if there is no adversity between them. L_ v. R_, 518 S.W.2d 113, 121 (Mo.App.1974).

V.

We conclude that the judgment and order of the trial court should be affirmed.

The judgment is affirmed.

MORGAN, C. J., BARDGETT, DONNELLY, RENDLEN and SEILER, JJ., and FINCH, Senior Judge, concur.

WELLIVER, J., not participating because not a member of the Court when cause was submitted.

      . Section 110.150 was amended in 1971, but not in a manner affecting this proceeding. We shall hereafter refer to § 110.150, RSMo Supp. 1975.

      . Section 52.360 was amended in 1973 but not in a manner affecting this proceeding. We shall hereafter refer to § 52.360 as amended, RSMo Supp. 1975.

      . “52.360. — The county collector, in all counties of the_first class not having a charter form of government and in all counties of the second 'class, shall deposit" each day in the depositaries selected by the county for the deposit of county funds, all money received by him as county collector during the day previous, and make a daily report thereof to the county auditor, as provided in section 55.190, RSMo. The interest on all money deposited by the county collector shall be computed upon the daily balances of the deposits, and all of the interest shall be paid and turned over to the county treasurer at the time and in the manner that the monthly settlement and payment are made by the collector, and the interest shall go to the general revenue fund of the county.” (Emphasis added).

      . Under the statute the interest deposited by the collector is to be paid to the county treasurer and the interest “shall go to the general revenue fund of the county.”

      . “165.071. — 1. At least once in every month the county collector in all counties of the first and second classes and the township collector in counties having township organization shall pay over to the treasurer of the school board of all six-director districts all moneys received and collected by him to which the board is entitled and take duplicate receipts from the treasurer, one of which he shall file with the secretary of the school board and the other he shall file in his settlement with the county court.
      2. The county collector in counties of the third and fourth classes, except in counties under township organization, shall pay over to the county treasurer at least once in every month all moneys received and collected by him which are due each school district and shall take duplicate receipts therefor, one of which he shall file in his settlement with the county court. The county treasurer in such counties shall pay over to the treasurer of the school board of six-director districts, at least once in every month, all moneys so received by him to which the board is entitled. Upon payment he shall take duplicate receipts from the treasurer of the school board, one of which he shall file with the secretary of the school board, and the other he shall file in his settlement with the county court.”

      . “165.081. — The county treasurer shall pay over to the treasurer of each six-director school district any state or county school moneys received by him to which the district is entitled, at least once in every month and take duplicate receipts from the treasurer one of which he shall file with the secretary of the board, and the other he shall file in his settlement with the county court.”

      . “110.150. — 1. The county court, at noon on the first day of the May term in each odd-numbered year, shall publicly open the bids, and cause each bid to be entered upon the records of the court, and shall select as the depositaries of all the public funds of every kind and description going into the hands of the county treasurer, and also all the public funds of every kind and description going into the hands of the ex officio collector in counties under township organization, the deposit of which is not otherwise provided for by law, the banking corporations or associations whose bids respectively made for one or more of the parts of the funds shall in the aggregate constitute the largest offer for the payment of interest per annum for the funds; but the court may reject any and all bids.
      2. The interest upon each fund shall be computed upon the daily balances with the depositary, and shall be payable to the county treasurer monthly, who shall place the interest on the school funds to the credit of those funds respectively, the interest on all county hospital funds and hospital district funds to the credit of those funds, the interest on county health center funds to the credit of those funds and the interest on all other funds to the credit of the county general fund.
      3. The county clerk shall, in opening the bids, return the certified checks deposited with him to the banks whose bids are rejected, and on approval of the security of the successful bidders return the certified checks to the banks whose bids are accepted.” (Emphasis added).


author: WELLIVER, Judge.

text:
    In the Matter of Gayles R. PINE, Respondent.
    No. 60460.
    Supreme Court of Missouri, En Banc.
    Feb. 13, 1979.

      Wayne H. Hoecker, Stephen B. Sutton, Kansas City, for informant.
    Newton R. Bradley, Robert L. Langdon, Lexington, for respondent.
   WELLIVER, Judge.

This is a disciplinary proceeding instituted by the Advisory Committee of the Missouri Bar Administration against Gayles R. Pine, who had engaged in the general practice of law in Warrensburg for forty-three years and in September, 1977, retired at age seventy. A hearing was held before special master, David A. McMullan, retired circuit judge. The special master made findings of fact and conclusions of law, and recommended respondent be discharged on all counts. However, in a disciplinary proceeding it is our duty to review the evidence, the credibility, weight and value of the witnesses, and to determine for ourselves all fact issues necessary to a decision. In re Schiff, 542 S.W.2d 771, 774 (Mo. banc 1976). Accordingly, we have made an independent review of the evidence before the master.

The information is in four counts. Count IV charged respondent with illegal conduct involving moral turpitude, with conduct prejudicial to the administration of justice, and with conduct reflecting adversely on his fitness to practice law in that, on March 4, 1977, respondent did “flourish a deadly weapon and did point said weapon at one Ernest R. Williams, then and there threatening to kill the said Ernest R. Williams, contrary to the provisions of DR 1-102(A)(3), (5) and (6), Missouri Supreme Court Rule 4.

The master found that the allegations of Count IV were not sustained by the evidence, that respondent “did not verbally threaten to kill Mr. Williams and had no intention of committing an act of violence against him,” and that Count IV was effectively abandoned by failure of informants to either mention or support the charges in their post-trial brief. While Count IV was briefed in this court, it was again abandoned by informants in oral argument, and we consider it no further.

We now examine the other three counts. Count I charged respondent with failing to timely file a transcript of appeal in the Missouri Court of Appeals, Western District, on behalf of his clients, Mr. and Mrs. Guy Willcockson, contrary to the provisions of DR 6-101(A)(3), DR 7-101(A)(1), (2) and (3), Missouri Supreme Court Rule 4.

This case involved a suit for specific performance brought by respondent on behalf of the Willcocksons (buyers) against the Garrison brothers (sellers). Buyers paid $100 down on a contract to purchase 520 acres, contingent upon securing full financing within 90 days. Buyers remained in possession of this property as tenants throughout the approximately 3V2 years of the litigation, and sellers counterclaimed for the unpaid rent which accrued during this time. The case was tried before the court and resulted in a judgment against the Willcocksons on the specific performance and a money judgment for rent against the Willcocksons on the counterclaim, which does not appear to have been paid.

While the Willcocksons were unhappy because they failed to get the farm, this was not the fault of their attorney. The record abounds with evidence that the contingent financing was not timely obtained. The master found that the “failure to file a transcript” on appeal, (or the intentional non-filing of the transcript) was after consultation with the clients and with the clients’ consent.

Count II charged respondent with failing to file a brief in the Missouri Court of Appeals, Western District, on behalf of Mrs. LaDorna McRoberts, contrary to the provisions of DR 6-101(A)(3), DR 7-101(A)(l), (2) and (3), Missouri Supreme Court Rule 4. This charge arose out of a divorce proceeding wherein Mrs. McRoberts had been represented by a Kansas City attorney and was unhappy with the results of the trial. The court had awarded Mrs. McRoberts an attorney’s fee of $240, but then required this to be deducted from the sale proceeds of marital property, thereby resulting in a splitting of the attorney’s fee between the parties. The court also had charged the costs against Mrs. McRoberts, and had entered a decree of divorce instead of the decree of legal separation which she had requested. Mrs. McRoberts’ mother requested respondent to advise her daughter. He filed after-trial motions which were overruled, and requested a transcript. Both he and Mrs. McRoberts examined the transcript, after which they discussed the appeal.

The record is clear that respondent advised Mrs. McRoberts that she could probably win the other one-half of the $240 attorney’s fee on appeal. He expressed doubts about whether she could secure reversal of the trial court’s refusal to enter a decree of legal separation. At that time the applicable statute, § 452.305.2, RSMo Supp.1975 had not been construed by any appellate court. After the appeal was dismissed for failure to file a brief, Mrs. McRoberts obtained another attorney who reinstated the appeal. She prevailed on the one-half of the $240 attorney’s fee and recovery of court costs, and was awarded a decree of legal separation. McRoberts v. McRoberts, 555 S.W.2d 682 (Mo.App.1977).

The mere fact that another attorney chose to process the appeal does not render respondent’s opinion and judgment subject to disciplinary action by this court. We believe respondent was entitled to weigh the potential financial benefit that might result from an appeal (one-half the attorney’s fee, or $120, and costs) against the cost of an appeal in making his recommendation as to the advisability of appeal. Whether Mrs. McRoberts received any other benefit from the appeal is still unclear. At the time of the hearing below, the McRoberts matter was still pending in the circuit court on remand from the Missouri Court of Appeals. Mr. McRoberts now has the opportunity to have the decree of legal separation changed to a decree of divorce 90 days after entry of the decree, pursuant to § 452.360.3, RSMo Supp.1975.

The master found that Mrs. McRoberts’ marital problems had resulted in a bitter fight extending over five years, that she generally understood what was going on, and that when she left Mr. Pine’s office, she knew that it was his opinion that there was little to be gained on appeal and that he (respondent) would no longer represent her, and would not take any further steps in the appeal of her case.

Count III charged respondent with failure to timely file pleadings and respond to interrogatories, thereby causing the dismissal of a client’s action, all contrary to the provisions of DR 6-101(A)(3), DR 7-101(A)(1), (2) and (3), Missouri Supreme Court Rule 4. The case in question involved a suit by Donald E. Bowers to enjoin a bank from proceeding with foreclosure on a farm, together with a count for both actual and punitive damages for claiming sums due on the note which were in fact not due to the bank. By reason of the suit, the foreclosure was forestalled until such time as the farm was sold by Bowers, and the bank gave full credit to Bowers for the $21,688 which he claimed he did not owe to the bank. The record indicates that once the foreclosure had been stopped and once Bowers had been given credit in full for the sums he did not owe, further pursuit of the matter would in all likelihood have been useless.

It is interesting to note that Bowers went to the Missouri Bar Advisory Committee to complain about a former attorney, now deceased, whose acts he alleged had contributed to his financial woes. When Bowers came to respondent he was in deep and serious financial troubles. The representation of Bowers resulted in the opening of twenty-one files in respondent’s office, most of them court cases, and all but one, a minority discrimination matter, related to financial claims against Bowers or his corporation. There is no indication that Bowers thought that any of the other twenty matters had been mishandled on his behalf by respondent.

The master found that respondent informed Mr. Bowers that the suit would be dismissed and that respondent did not tell Mr. Bowers that he would refile the suit. The master further found that Mr. Bowers knew that further pursuit of the case would be fruitless.

The transcript of the proceedings in this case is quite lengthy, but no purpose would be served by stating the facts in greater detail. In disciplinary proceedings the charges must be sustained by a preponderance of the evidence. In re Weiner, 547 S.W.2d 459, 461 (Mo. banc 1977). That has not been done. We believe the findings of the master are fully supported by the evidence, and we therefore adopt his findings and conclusions as our own.

Respondent is discharged on all counts.

MORGAN, C. J., BARDGETT, DONNELLY, RENDLEN and SIMEONE, JJ., and WELBORN, Special Judge, concur.

SEILER, J., not sitting.

      . Section 452.305.2 provides that “[i]f a party requests a decree of legal separation rather than a decree of dissolution of marriage, the court shall grant the decree in that form.”