text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert Lee MARTIN, Defendant-Appellant.
    No. 36210.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 4, 1975.
    Motion for Rehearing or Transfer Denied Dee. 10, 1975.

      Charles D. Kitchin, Public Defender, John F. Bauer, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Timothy J. Verhagen, Asst. Attys. Gen., Jefferson City, J. Brendan Ryan, Circuit Atty., J. Paul Allred, James A. Roche, Jr., Asst. Circuit Attys., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Upon trial for a charge of murder in the first degree, defendant Robert Lee Martin was determined to be guilty of second degree murder and the jury assessed his punishment at twenty years imprisonment. He now appeals from the judgment and sentence imposed in accordance with this verdict.

Facts favorable to the verdict indicated that on the evening of August 14, 1973 at approximately 8:30 p. m. the victim, Paul Adam Bruemmer, age 60 years, was walking on the sidewalk in the 5100 block of Delmar Avenue, St. Louis, Missouri. He was accosted by the defendant and another young man, Donnie Ray Pool, and was requested to go to a nearby liquor store and buy some wine. According to an oral statement made to the police by the defendant, the victim told the defendant that he would go and for him to come with him. Then, according to defendant Martin, the victim swung his hand at him with a knife, cutting the defendant on the arm and again on the chest. Defendant then stated that he went back to his front yard on Delmar, discussed it with some friends and then decided he would go back and catch up with the victim; that the victim turned around and swung at him; and he hit the victim in the face two times, knocking him down. He then proceeded to kick him a few times, he doesn’t know how many, and then defendant left. Prior to leaving, he removed the victim’s wallet from his pocket. According to eye witnesses, however, defendant repeatedly kicked the victim five or six times and his companion, Donnie Ray Pool, beat the victim about the head with a steel rod or metal object, kicked him in the side of the face, and jumped up and down on him with his feet. As a result of the brutal beating, Mr. Bruemmer received multiple fractures of the face and skull. He had lost consciousness which he never regained. He died on September 30, 1973 after many operations as a result of complications arising from his long hospitalization and unconscious state.

Defendant testified in his own behalf at the trial, admitted to taking a swing at the victim but described his companion Pool as being the real attacker who hit the victim in the face, stomped him and kicked him. The defendant further assured the jury that he attempted to restrain his companion Pool from continuing to beat the man but was unsuccessful.

In his first point on appeal, the defendant asserts that the trial court erred in overruling his objection to the assistant circuit attorney’s questioning of the witness Deborah Carter concerning what she had told the circuit attorney earlier in his office. Defendant complains of this action by the state as constituting an impeachment of its own witness in that it lacked an adequate foundation. We cannot agree.

The circumstances giving rise to this allegation were a series of questions on direct examination about Miss Carter’s identification of the defendant to the police. Miss Carter had identified the boys only as “Creature” (the defendant) and “Charles” (his companion Pool) to the police in the initial interview and not until later identified the defendant as being “Creature”. The alleged impeaching questions occurred when the assistant circuit attorney was attempting to ascertain why Miss Carter had not immediately identified the defendant as one of the boys she had seen beating the victim. The attorney referred to a prior statement that she had made in his office, explaining that she had been afraid to tell the police the defendant’s name. The trial colloquy that occurred, however, amply demonstrates that the young girl was confused and did not understand the assistant circuit attorney’s question. No attempt at impeachment was made. The state’s attorney did not wish to attack Miss Carter’s testimony, nor was he trying to bolster it; rather he was attempting to refresh the witness’s memory and clarify his own questions so that she could answer. The question of permitting the refreshing of a witness’s memory is determined by the circumstances of the particular case and is clearly within the discretion of the trial court, reviewable only upon abuse. State v. Bradley, 361 Mo. 267, 234 S.W.2d 556, 560[10] (1950). See also State v. McKinney, 475 S.W.2d 51, 54[3] (Mo.1971); State v. Franklin, 526 S.W.2d 86, 91[13] (Mo.App.1975).

Defendant also submits as error the admission into evidence of the victim’s bloody clothing he was wearing during the beating. Defendant contends that the clothing was irrelevant and used only to inflame the passions of the jurors, thus constituting reversible error. The admissibility of such demonstrative evidence, however, has long been held to be a matter within the discretion of the trial judge. State v. Wallace, 504 S.W.2d 67, 71[5] (Mo.1973); State v. McRoberts, 485 S.W.2d 70, 72[1] (Mo.1972). Although the defendant correctly asserts that a victim’s clothing can be properly admitted only if it has some probative value to the jurors, State v. Swinburne, 324 S.W.2d 746, 752[8] (Mo. banc 1959); State v. Long, 336 Mo. 630, 80 S.W.2d 154, 160[9] (1935), the defendant is wrong in asserting that the admission of the clothing in this case constitutes reversible error. To be admissible, the victim’s clothing need only “establish any fact at issue or * * * tend to throw light on the controversy and aid the jury in any way in arriving at a correct verdict * * *.’’ (Emphasis added.) State v. Long, supra, at 160. Much testimony was directed to the issue of the severity of the beating the victim received, and although the amount of blood on his clothing is not by itself proof, we cannot say it was entirely without some probative value. Corroborating other testimony is sufficient reason to admit such demonstrative evidence. State v. Wallace, supra, 504 S.W.2d 67, 71[6] (Mo.1973); State v. Brandt, 467 S.W.2d 948, 951[4] (Mo.1971). Furthermore, it has been said that the state should not be limited in the quantum of proof since it has the burden of proving guilt beyond a reasonable doubt. State v. Wallace, supra at 71. Here, no undue emphasis was placed on the clothing so as to inflame the passions of the jury.

In defendant’s third point on appeal, he alleges error by the trial court in sustaining the motion to strike the testimony of Donnie Ray Pool and in instructing the jury to disregard his testimony. Defendant contends that the court’s action invaded the province of the jury in considering the credibility of the witnesses and evidence favorable to the defendant. We agree in part.

Evidence received may be stricken only as a matter of right and not at the discretion of the court. 75 Am.Jur.2d, Trial, § 179, p. 265. This is for the reason that it is within the province of the jury and not the court to determine whether any or all of a witness’s testimony is to be believed. State v. Whipkey, 358 Mo. 563, 215 S.W.2d 492, 494[2] (1948). Here, the state’s purported reason for striking the testimony of Donnie Ray Pool was because it did not wish to be responsible for the believability of it. This motion came seven witnesses and one day after Pool had testified. The state attributed its untimeliness to the fact that it did not know that Donnie Ray Pool was the other boy involved in the beating, known as “Charles” to Miss Deborah Carter, until she was recalled to the stand and asked by the defense counsel if Donnie Ray Pool was, in fact, the “Charles” she referred to. Thus, the state urges that the trial court was correct in sustaining their motion to strike because of the doctrine against using false testimony. We, however, fail to see the applicability of the doctrine against the knowing use of false testimony in this situation. There was no proof of false or perjured testimony by Donnie Ray Pool merely because Miss Carter identified him as a participant. Instead, the resolution of the conflicting testimony became an issue of credibility. It is well established that the determination of credibility of witnesses is solely for the jury in a criminal proceeding. State v. Brager, 497 S.W.2d 181, 182[2] (Mo.1973); State v. Dodson, 490 S.W.2d 92, 95[6] (Mo.1973); State v. Morris, 518 S.W.2d 79, 81[5] (Mo.App.1974). Furthermore, the state ought not to have been concerned for being held responsible for the veracity of Donnie Ray Pool since a party is not bound to the testimony of his witness where the same party offers other evidence from which a contrary inference could be drawn. Hartz v. Heimos, 352 S.W.2d 596, 602[4] (Mo.1962); Hancock v. Light, 435 S.W.2d 695, 700[8] (Mo.App.1968).

The jury heard Deborah Carter identify Donnie Ray Pool as the other attacker. It was their duty to weigh the testimony previously given by Pool. See State v. Nimrod, 484 S.W.2d 475, 479[4] (Mo.1972). The state might also have brought out the credibility problem of Pool in its closing argument, but striking his entire testimony was improper merely because the witness had been subsequently discredited or contradicted. See Kansas City v. Jones Store Co., 325 Mo. 226, 28 S.W.2d 1008, 1015[20] (banc 1930); Reed v. Prudential Ins. Co., 229 Mo. App. 90, 73 S.W.2d 1027, 1033[11] (1934).

Error in striking out testimony, however, is not reversible error unless it is prejudicial. 75 Am.Jur.2d, Trial, § 184, p. 269. Error in a criminal case is presumed to be prejudicial, but this presumption may be overcome by the facts and circumstances of the particular case. State v. Walker, 484 S.W.2d 284, 286[4] (Mo.1972); State v. Spencer, 472 S.W.2d 404, 405[1] (Mo.1971). Here, the defendant argues he was prejudiced by the erroneous striking of Pool’s testimony, since Pool stated the defendant only hit the victim with his fists and that no one kicked or stomped him. But the stricken testimony was not favorable to the defendant. In his testimony, Pool tried to cast all the blame for the assault on defendant rather than on himself. He testified defendant hit the victim twice and the victim fell. The victim tried to get up and defendant hit him again in the face. Pool and another person pulled defendant off the victim and defendant returned again to hit him. Then Pool and his companion ran. Without the testimony of Pool, the defendant’s version that Pool and not the defendant initiated the beating is undisputed. Certainly the effect of striking the testimony and instructing the jurors to disregard it helped the defendant. The evidence from Pool was adverse enough apparently to elicit the statement from defendant’s attorney after the state moved to strike Pool’s testimony, “I’ll agree to said motion by the State”. Later he objected when the state failed to include a motion for judgment of acquittal. Clearly, defendant cannot be heard to complain about error in his favor and against the state. State v. Foster, 490 S.W.2d 662, 663[2] (Mo.App.1973).

The fourth point raised on appeal by the defendant is that the trial court erred in overruling the assistant circuit attorney’s cross-examination of the defendant, alleging the questions were beyond the scope of the direct examination. The defendant’s testimony was confined to the events of August 14, 1973 and the beating incident only. On cross-examination the state was permitted to inquire as to certain events occurring on August 15, 1973, events surrounding his arrest and his interrogation by the police. On this issue it is well established that although the defendant is liable to cross-examination only as to matters referred to in his examination in chief, he is subject to impeachment in a like manner as any other witness. State v. Beishir, 332 S.W.2d 898, 901[1] (Mo.1960); State v. Robinson, 344 Mo. 1094, 130 S.W.2d 530, 531[1] (1939).

The defendant testified in his own behalf on all the events surrounding the assault. This testimony contradicted prior statements given to police authorities, who had testified for the state about defendant’s statements upon his arrest. It is thus apparent that the state confined its examination to the impeachment process of defendant’s prior inconsistent statements to the police. Additionally, we recognize that the trial court is invested with discretion in determining the extent of cross-examination. State v. Mitchell, 491 S.W.2d 292, 296[5] (Mo. banc 1973). We find that the court did not abuse that discretion.

The final point raised on appeal was that the trial court erred in admitting into evidence a bloodied flashlight found near the scene of the beating. Defendant asserts that because a “blood-grouping” test was not performed the flashlight was irrelevant because it did not tend to prove or disprove any fact in issue. But testimony was introduced by the state that the victim was beaten with a metal tubular object. As we noted above, it is within the trial court’s discretion to determine the materiality and relevance of evidence. State v. Evans, 406 S.W.2d 612, 617[6] (Mo.1966). In light of evidence that the victim was hit with a metal object, we cannot say that the admission of a bloodied flashlight found near the victim’s unconscious body might not be relevant to the fatal beating. See State v. Hopkins, 278 Mo. 388, 213 S.W. 126, 128[5] (1919).

Finding no reversible error in the defendant’s trial, we affirm the judgment and sentence.

DOWD and RENDLEN, JJ., concur.


source: Caselaw Access Project

author: NORWIN D. HOUSER, Special Judge.

license: Public Domain

text:
    Robert L. MONIA and Patricia A. Monia, Plaintiffs-Appellants, v. Andre J. OBERLE, Jr., and Lillian B. Oberle, Defendants-Respondents.
    No. 36361.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Nov. 4, 1975.
    Motion for Rehearing or Transfer Denied Dec. 10, 1975.
    Application to Transfer Denied Jan. 12, 1976.

      Ziercher, Hocker, Tzinberg, Human & Mi-chenfelder, Albert A. Michenfelder, Jr., Robert Hickel, Clayton, for plaintiffs-appellants.
    Buerkle, Buerkle & Lowes, David G. Bee-son, Jackson, for defendants-respondents.
   NORWIN D. HOUSER, Special Judge.

Action to remove from the land records of Ste. Genevieve County a recorded contract for the sale of two tracts of land totaling 25 acres. Plaintiffs are Robert and Patricia Monia, who contracted to sell the land. Defendants, the buyers, are Andre J. Oberle, Jr. and his wife Lillian. The Ob-erles counterclaimed for specific performance of an oral contract relating to two larger tracts of land. The 25 acres was included in one of those tracts. Tried to the court without a jury, a judgment and decree was rendered in favor of buyers Oberle and against sellers Monia, both on petition and counterclaim. The Monias have appealed.

The Oberles move to dismiss the appeal for failure to comply with Rule 81.19 with respect to the time within which a transcript must be ordered. On December 13, 1974 this court, having considered motions pro and con on the question of extension of time and Oberles’ motion to dismiss the appeal on this ground, overruled the motion to dismiss and granted Monias’ motion for extension of time. These orders were made pursuant to the power granted by Rule 84.08 to suspend or modify the rules in a particular case upon a showing that justice so requires and by Rule 44.01(b) empowering the court to order enlargement of a time period for cause shown. Our order allowed extra time to file the transcript, which was prepared at a cost of $221 and filed. Since then the parties have incurred additional expense for printing briefs. Under all these circumstances we are disposed to determine the case on the merits and now overrule the motion to dismiss the appeal.

Oberles’ contention that certain points raised in Monias’ brief are not properly before this court because not raised in their motion for new trial is disallowed. In this court-tried case no motion for new trial was necessary to preserve any point for appellate review. Russell v. Russell, 427 S.W.2d 471 (Mo.1968); March v. Gerstenschlager, 436 S.W.2d 6 (Mo.1969). In such a case an appellant may raise on appeal points not mentioned in the motion for new trial. Timmerman v. Ankrom, 487 S.W.2d 567, 569 (Mo.1972).

First we consider the action of the court in denying the prayer of the petition to remove the contract from the land records. It is the duty of recorders to record instruments of writing concerning lands which are acknowledged according to law. § 59.330, RSMo 1969. If intended to affect title to real estate an instrument must be acknowledged before it is entitled to be recorded. Instruments are not entitled to be recorded as to persons who have not acknowledged them. Heintz v. Moore, 246 Mo. 226, 231-232, 151 S.W. 449 (1912). An instrument the acknowledgment of which has been forged is not entitled to be recorded. Finley v. Babb, 173 Mo. 257, 73 S.W. 180 (1903). Robert L. Monia and Patricia A. Monia, and Andre J. Oberle, Jr. and Lillian B. Oberle signed the contract. It was not acknowledged by the Monias at that time or at any later time. It is conceded that at a time subsequent to the signing Andre J. Oberle, Jr., himself a notary public, prepared and affixed to the contract an acknowledgment in his own handprinting, reciting the appearance of Monias before him and that they executed the instrument as their free act and deed, attached a purported legal description of “70 acres remaining to be shared,” and had the contract, acknowledgment and legal description filed of record in the land records of Ste. Genevieve County, all without the knowledge or consent of Monias. This falsification and alteration of the document disentitled it to be recorded and entitled Monias to have it stricken from the records. The court erred in finding against Monias and for Oberles on the petition.

Next, we consider the action of the court on the counterclaim. The handwritten contract, which the parties signed on January 29,1973, provided for sale by Moni-as to Oberles of two tracts of land, one consisting of 10 acres, with house, barn and outbuildings, for $13,000, the approximate property lines located according to attached aerial plat; the other consisting of fifteen acres, more or less, at $500 per acre, the property lines to be determined by survey. Provision was made for date of possession, insurance, date of closing, and giving a warranty deed.

The last sentence of the contract (which poses the problem in this litigation) follows: “Additional agreement to be made concerning sharing balance of approximately seventy acres of tract.”

Apparently on the theory that the last sentence of the contract above quoted was ambiguous, the circuit court, over the persistent and continuing objections of Monias on the basis of the parol evidence rule, admitted extensive and voluminous evidence of prior negotiations, dealings, discussions, and agreements, not only between Monias and Oberles but also with representatives of the Wipfler estate, with respect to a larger tract within which the 25 acres were included, and another tract called the “big field property.” Mr. Oberle was permitted to testify at length concerning his version of the agreement between the parties. Mr. Oberle testified that there was an oral agreement between the parties prior to the execution of the contract of January 29, 1973 under which Monias were to purchase certain lands from the Wipfler estate (the big field property and a separate 115-acre tract); that Monias were to sell the big field property for a profit and use the funds derived from that sale to pay a portion of the purchase price to the Wipfler estate; that Monias would sell Oberles a 10-acre tract and a 15-acre tract out of the 115-acre tract, for $13,000 and $7,500 respectively; that Monias would reserve 15 acres out of the 115-acre tract for themselves; that the balance of the 115-acre tract was to be split equally between Monias and Oberles; that Oberles would pay Monias $500 per acre for the land received by them out of the remaining acreage; that they were to split the proceeds of the crops from the remaining acreage; that Oberles have paid Monias all of the $20,500 purchase price for the 10- and 15-acre tracts; that this sum was paid in three instalments, the first of which in the sum of $19,000 having been paid to enable Monias to consummate the “deal” with the Wipfler estate. The court, crediting Mr. Oberle, found the facts according to his understanding as to the true intent and meaning of the last sentence of the contract; decided the ease for Oberles and against Monias on the counterclaim; decreed specific performance based on Mr. Oberle’s understanding of what the last sentence of the contract above quoted meant; found that the remaining acreage was agreed to be shared equally; fashioned a decree vesting in Oberles as tenants by the entirety the surface rights only to a tract of 66.08 acres described by metes and bounds according to a survey as shown by plat attached to the decree; fixed the purchase price at $500 per acre; required payments of money as between the parties based on calculations and accountings for interest accrued, interest paid, crop rental, feed grain program payment, fertilizer, taxes, insurance premium, straw baling costs, and seed corn, giving credit for payments made by Oberles; determined that Oberles were entitled to a roadway easement over lands set over to Monias; fixed the location of and rights in the roadway; and annulled a deed of trust given by Monias to the Bank of Bloomsdale.

The judgment and decree on the counterclaim cannot stand. The written contract of January 29, 1973, down to the last sentence, is a complete, single and final memorial of the understanding and intention of the parties and, except for the last sentence, is enforceable. Some other and different contract, based upon oral testimony, cannot be enforced by specific performance on the basis of the last sentence of the contract, which is unambiguous and plain enough in its essential meaning. There is no showing of fraud, duress, mistake or mental incapacity, and therefore the unambiguous contract entered into between these parties cannot be varied and a new and different contract substituted by parol evidence. Commerce Trust Co. v. Watts, 360 Mo. 971, 231 S.W.2d 817 (1950).

A provision that an “additional agreement” is to be made is clear and unambiguous. It refers to another and different agreement. “The word ‘additional’ means something that is added to something that is already in existence so as to form an aggregate.” York Pharmacal Co. v. Henry C. Beckmann R. & I. Co., 304 S.W.2d 40, 42 (Mo.App.1957). The sentence refers to an additional agreement not yet made, but to be entered into and agreed upon at a future time. It contemplates future action. The sentence clearly implies that on January 29, 1973 there was not already in existence an agreement concerning the sharing of the balance of the acreage of the tract. Only by passing over the first phrase (“Additional agreement to be made”) and looking only to the last phrase (“sharing of balance of approximately seventy acres of tract”), could the sentence possibly be construed as an agreement for sharing the balance of the acreage so as to conclude that “sharing the balance” (ambiguous language) could be explained and clarified by parol evidence. The first phrase of the sentence cannot thus be lightly passed over. Considered as a whole and in its entirety the last sentence is not susceptible to the construction for which Oberles contend, namely, that the entire last sentence is ambiguous.

In P. R. T. Inv. Corp. v. Ranft, 363 Mo. 522, 252 S.W.2d 315 (1952), a provision was inserted in a contract for the sale of real estate that it was “[s]ubject to purchaser accepting the seller’s lease on ground.” This provision was held to preclude specific performance of the contract on the basis that it clearly indicated that a further and additional contract (a contract of lease) was contemplated by the parties. The Court said, 252 S.W.2d l.c. 318-319, that the transactions stipulated in the contract of sale “were plainly subject to or conditional upon the purchaser’s ‘acceptance’ of the sellers’ lease. To allow this plain language to be verbally explained and varied as urged by appellant would vary or change the express terms of the written contract of sale which the parties had made as the evidence or the memorial of the terms of their agreement as of the time the contract of sale was entered into. * * * The parties to the contract of sale have not agreed — there has been no meeting of the minds — upon the additional terms to be incorporated in the contract of lease which terms were essential in integrating the transactions provided in the contract of sale.”

Likewise in the case before us, this contract does not evidence the meeting of the minds with reference to sharing the remaining acreage, but on the contrary clearly indicates that the parties had not agreed on that subject. Whatever sharing there was to be was plainly subject to or conditional upon the parties in futuro arriving at an agreement on the subject. The contract related to a 10-acre tract and a 15-acre tract, which were the objects and extent of the engagement. The contract, dated January 29, 1973, complete in itself, did not extend to, or contemplate, any other acreage except for the unenforceable reference to seventy acres in the last sentence.

“The well-established general rule is that where the parties to a contract have deliberately put their engagement in writing in such terms as import a legal obligation without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the entire engagement of the parties, and the extent and manner of their undertaking, have been reduced to writing, and all parol evidence of prior or contemporaneous conversations or declarations tending to substitute a new and different contract for the one evidenced by the writing is incompetent. Stated otherwise, the intention of the parties as evidenced by the legal import of the language of a valid written contract cannot ordinarily be varied by parol proof of a different intention.” 30 Am.Jur.2d Evidence § 1016, pp. 149, 150. “That no one may be heard to say that an actual agreement made by the parties is not reflected in their unambiguous written contract, the courts, by the application of the parol evidence rule, have uniformly held that, in the absence of fraud, duress, mistake or mental incapacity, an integrated unambiguous contract may not be varied, and a new and different contract substituted by parol evidence. [Citing cases] The agreement of the contracting parties merges in their written instrument and (except in certain instances not appearing here) is not subject to be varied by oral testimony or extrinsic circumstances. * * * The writing itself becomes and is the single and final memorial of the understanding and intention of the parties.” Commerce Trust Co. v. Watts, supra, 231 S.W.2d l.c. 820.

Since the contract shows clearly that it is complete in itself, “testimony of conversations and prior negotiations leading up to the consummation of the [contract] is not competent to vary the terms of the written instrument. * * * The parol testimony on which [Oberles rely] is not explanatory of the [contract] but is in contradiction thereof, hence such testimony being incompetent cannot form the basis of a judgment against [the Monias] in the face of the clear, unequivocal, and unambiguous terms of the written [contract].” Sol Abrahams & Son Const. Co. v. Osterholm, 136 S.W.2d 86, 92 (Mo.App.1940). The contradiction lies in the fact that the oral testimony shows (1) there was an agreement in the past (in 1972) with reference to sharing the balance of the acreage, while the contract states that an additional agreement with reference thereto is to be made (in the future), and (2) an agreement radically different from that which the parties reduced to writing and signed.

The circuit court, mistaking an agreement to agree as an agreement in existence, created or constructed a complicated and detailed oral contract for the parties out of the testimony of one of them (disputed by the other in every significant detail), and decreed its specific performance, notwithstanding the new contract thus constructed varied and contradicted the terms of the parties’ unambiguous written contract.

The circuit court also erred in finding the deed of trust in favor of the Bank of Bloomsdale, placed on the property a day or two prior to June 4, 1974, ineffective as between the parties and that it did not affect the title to the land. The validity of the deed of trust was not an issue under the pleadings in this case. Furthermore, Bank of Bloomsdale was not a party to the action and had no notice or opportunity to be heard on the question of the validity or effect of its deed of trust.

Accordingly, the judgment is reversed and the cause remanded with directions to the circuit court to enter a judgment and decree finding the issues on petition and counterclaim for plaintiffs Monia and against defendants Oberle and directing the recorder to remove the contract and attachments thereto from the public records of Ste. Genevieve County.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Robert ROSS, Appellant.
    No. 9759.
    Missouri Court of Appeals, Springfield District.
    Nov. 7, 1975.
    Motion for Rehearing or to Transfer to Supreme Court Denied Dec. 4, 1975.
    Application to Transfer Denied Jan. 12, 1976.

      John C. Danforth, Atty. Gen., Robert H. House, Asst. Atty. Gen., Jefferson City, for respondent.
    Harry H. Bock, New Madrid, for appellant.
    Before BILLINGS, C. J„ and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Defendant Robert Ross seeks reversal of his convictions for assault with intent to kill with malice aforethought [§ 559.180, RSMo 1969] and armed robbery [§ 560.135, RSMo 1969]. He contends his multiple convictions subject him to double jeopardy, an opinion as to gunshot residue on his hands based on neutron activation analysis was erroneously received in evidence, and the jury selection procedures of Mississippi County are “invidiously discriminatory” against members of his race [Negro]. We affirm.

Defendant and his cousin Calvin Ross were jointly charged in New Madrid County in a two count information. They were accused of feloniously assaulting Willie Hardin with intent to kill and with malice aforethought by shooting him and of the armed robbery of Mr. Hardin. Venue of the cause was transferred to Mississippi County where defendant’s motion for severance was sustained and separate trials followed.

With minor exceptions not here relevant the facts and circumstances giving rise to the charges against and resultant convictions of the defendant in this case are identical to those detailed in State v. Calvin Ross, 523 S.W.2d 841 (Mo.App.1975), and will not be repeated here. In summary, the defendant and Calvin Ross were identified as the two men who first pistol-whipped and robbed Mr. Hardin and thereafter shot and seriously wounded him before departing the store he was tending.

In rejecting the identical double jeopardy claim of Calvin Ross we said: “In this case the defendant and his companion [Robert Ross] first assaulted Mr. Hardin by pistol-whipping him to the floor, and as a result of this initial act of force took his billfold and accomplished the crime of robbery. It was at a subsequent time, and after the completion of the robbery of Mr. Hardin, that a separate and distinct assault of Mr. Hardin took place—the shooting of him as he lay unconscious on the floor. The pistol-whipping assault resulted in the robbery of Mr. Hardin. The shooting of the elderly clerk thereafter constituted the basis for the defendant’s felonious assault conviction; and we hold the rule of double jeopardy is not applicable and there was no error in submitting both Count 1 and Count 2.” State v. Ross, supra at 844.

For the reasons set forth and authorities cited in State v. Calvin Ross, defendant Robert Ross’ claim of double jeopardy is rejected and denied.

Likewise in State v. Calvin Ross we had occasion to explore and consider the use of neutron activation analysis to test for gunshot residue and held an expert’s opinion based thereon was properly received in evidence. In so ruling we concluded the evidential force of this scientific technique had crossed the line between the experimental and demonstrable states and consequently, the principle is entitled to judicial recognition. 523 S.W.2d at 844-46. Defendant’s point is denied.

This leaves for determination defendant’s contention that the lower court erred in overruling his pretrial motion to quash the jury panel. As previously noted herein the defendant’s motion alleged systematic and invidious discrimination against members of his race in the selection of panel members.

At the hearing of defendant’s motion he claimed the 1970 census for Mississippi County showed a 21.6 per cent non-white population; and for eight years prior to his trial there had never been more than “three _possibly four” Negroes on the twenty-four member jury panels. Defendant offered no evidence of the percentage of Negroes eligible or qualified for jury duty [ §§ 494.010, 494.020, RSMo 1969] or the percentage of Negroes on the list of registered voters from which the jury list is drawn. Defendant further failed to show the average number of Negroes chosen for jury panels during the eight year period.

In support of his motion defendant examined Circuit Clerk Ellis W. Howlett who by § 494.230, RSMo 1969, serves as ex officio clerk of the board of jury commissioners. The testimony of Clerk Howlett, at time of trial observing his fortieth year as circuit clerk, clearly refuted defendant’s contention. The jury lists were drawn pursuant to § 494.240, RSMo 1969, from names taken from voter registration lists, and the names so selected did not indicate race. Negroes are and have been included in the list of prospective panel members and are frequently selected as members of a jury panel. Negroes have served on trial juries in Mississippi County.

The burden of demonstrating sufficient facts to prove a prima facie case of racial discrimination in jury selection is on the defendant. Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); United States v. Jones, 452 F.2d 884 (8th Cir. 1971); State v. Mooring, 445 S.W.2d 303 (Mo.1969). It is not the duty of the court to compile statistics pertaining to the percentage of Negroes eligible and qualified for jury service or other matters involving alleged discriminatory practices. State v. Aikens, 507 S.W.2d 386 (Mo.1974).

In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the evidence was that while Negro males over 21 years of age constituted 26 per cent of the male population of Talladega County, Alabama, only 10 to 15 percent of the grand and petit jury panels for a number of years had been Negroes. In holding this alone was not sufficient to establish a prima facie case of invidious discrimination the court said:

“Venires drawn from the jury box . unquestionably contained a smaller proportion of the Negro community than of the white community. But a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the venire or jury roll from which the petit jurors are drawn. . . . Neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group. . . We cannot say that purposeful discrimination based on race alone is satisfactorily proved by showing that an identifiable group in a community is underrepresented by as much as 10%. . Undoubtedly the selection of prospective jurors was somewhat haphazard and little effort was made to ensure that all groups in the community were fully represented. But an imperfect system is not equivalent to purposeful discrimination based on race. . . . ” 380 U.S. at 208-09, 85 S.Ct. at 829.

Defendant’s reliance on Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972), is misplaced. In that case questionnaires which clearly indicated race were used in selecting prospective grand jurors. Although 13.76 per cent of the questionnaires were from Negroes, only 6.75 percent of those chosen as prospective grand jurors were Negro. In reversing Alexander’s conviction, the court stated: “[W]e do not rest our conclusion that petitioner has demonstrated a prima facie case of invidious racial discrimination on statistical improbability alone, for the selection procedures themselves were not racially neutral. The racial designation on the questionnaire . . . provided a clear and easy opportunity for racial discrimination.” 405 U.S. at 630, 92 S.Ct. at 1225.

In the present case defendant has presented no evidence of the use of materials designating race or of any other procedure which is not racially neutral. His point is without merit.

The judgment is affirmed.

All concur.

      . The jury could not agree on the defendant’s punishment and the trial judge imposed consecutive prison terms of 25 years and 30 years. Calvin Ross was convicted on both counts in his trial and received identical sentences. Judgment in State v. Calvin Ross was affirmed by this court, 523 S.W.2d 841 (Mo.App.1975). An accomplice’s conviction was affirmed in State v. Williams, 523 S.W.2d 846 (Mo.App.1975).

      . Before leaving the scene in a car driven by an accomplice, Robert Ross boarded a school bus for retarded children which had stopped at the store and shot and wounded the bus driver. Several children were present in the bus when the driver was shot.

      . The judges of the county court and the circuit judge, together with the circuit clerk, constitute the board of jury commissioners in class three and four counties.

      . Each of the other three cases cited by appellant also involved situations where materials used in the selection process indicated the race of prospective jurors. Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972) (racially segregated tax digests); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967) (racially segregated tax digests); Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77 (1964) (racially segregated tax records).


author: SIMEONE, Presiding Judge.

text:
    MAY DEPARTMENT STORES, INC., d/b/a Venture Stores, Inc., Plaintiff-Appellant, v. SUPERVISOR OF LIQUOR CONTROL, Defendant-Respondent.
    No. 36818.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 18, 1975.

      James W. Herron, J. L. Pierson and Richard T. Ciottone; Lewis, Rice, Tucker, Allen & Chubb, St. Louis, for plaintiff-appellant.
    Scott A. Raisher, Asst. Atty. Gen., John C. Danforth, Atty. Gen., Daniel Card, III, Asst. Atty. Gen., Jefferson City, for defendant-respondent.
   SIMEONE, Presiding Judge.

This is an appeal from a judgment of the circuit court of the City of St. Louis entered December 23, 1974, affirming an order of the acting supervisor of liquor control entered October 10, 1974, which suspended the liquor license issued to the appellant, May Department Stores, Inc., doing business at the Venture Stores, Inc., for a period of three days. For reasons hereinafter stated, we affirm the judgment of the circuit court and the order of the supervisor.

This cause presents unique facts and involves an unresolved question in this state. The facts are rather simple, yet the legal issues raised are complex and are not easily resolved. The issue in this proceeding is whether the supervisor of liquor control may, upon substantial and competent evidence, suspend the license of a liquor dealer, when there is some contradictory evidence that the liquor was sold to a minor for and on behalf of his adult brother, and whether such a sale is prohibited by § 311.-310, RSMo 1969. We hold that under the facts presented by this record there was substantial and competent evidence for the acting supervisor and the circuit court to conclude that a sale was made to a minor in violation of the statute and that the order of the supervisor suspending the license of the dealer for three days and the judgment of the circuit court affirming such order must be affirmed by this court.

In order to resolve the issue presented, it is necessary to make a somewhat detailed statement of the facts.

About 8:50 p. m. on May 3, 1974, Officer Charles Schaefer of the St. Louis Police Department assigned to the liquor section was in the appellant’s Venture Store at 4930 Christy Avenue in the City of St. Louis. He was on duty there with Norbert Kemp, a state liquor agent of the State of Missouri. Both were in casual clothes.

Officer Schaefer noticed a young man, later identified as Dennis Bomarito, in the “liquor section of the Venture Store.” “When I first noticed him, he was removing some cigars, packages of cigars from off a display rack.” Schaefer walked to the area of the liquor display and joined Agent Kemp, who was standing by the cash register for the liquor and tobacco. Schaefer again observed Dennis Bomarito, whose age was later determined to be seventeen, at the check out counter. At this time, Officer Schaefer stated that Dennis “had two six packs of 12 oz. cans of Busch Bavarian beer in his possession along with several packages of cigars.” He also testified that:

“When it came his turn to check out he placed his two six packs of beer on the check out counter along with the cigars. A sale was rang [sic] up by the sales clerk who was later identified as a Marsha Wilbanks, she then pushed the beer down the check out counter to a bagger, his name was Broekelmann [sic]. [Broekel-man] packaged the beer, along with the cigars, Wilbanks rang up the sale and Dennis Bomarito handed her a ten dollar bill. She put the money in the cash register and returned an unknown amount of currency to Dennis Bomarito . . . .”

Officer Schaefer was standing some ten to fifteen feet from the transaction. As Dennis approached the check out counter, Officer Schaefer stated that he had the beer in “his possession, he had it in his arms” and saw him “put it on the counter.” Behind Dennis at the check out counter was Dennis’ brother, Joseph Bomarito, age 22. Officer Schaefer did not see Joseph carrying beer, nor did he see Joseph put any money on the counter. He saw Dennis “push the money across the check out lane.” As the two brothers left the counter, Officer Schaefer saw the brothers “slap” hands— “one put his hand like that and the other one slapped down like that and then they walked away from the check out counter.”

When the two brothers walked away from the counter, they walked around several aisles of the store. Officer Schaefer and Agent Kemp kept them in sight. Dennis had “possession of the beer at all times, at this time.” “They had a conversation with one or two store employees, then they walked to the exit door facing Kingshigh-way Blvd. Just as they were about to exit the door both . . . turned and looked in our direction when at that time Dennis gave his older brother the beer. They both exited the door and Dennis went to the left and Joseph went to the right.” Officer Schaefer stopped Dennis, and Agent Kemp stopped Joseph. Sometime later that evening, the officers questioned Dennis, after advising him of his rights in the presence of his father. Officer Schaefer testified that Dennis then “told me that he did buy the beer, but the beer was intended for his older brother.” It was stipulated that Dennis was under twenty-one and that the beer seized contained intoxicating liquor.

On cross-examination, Officer Schaefer was asked, “Are you absolutely certain that he [Dennis] took them both, six packs and put them on the counter?” He answered, “Yes sir, I am.” Officer Schaefer did not see Joseph touch the beer in any way. He heard no conversations take place between the brothers and the check out girl, Marsha Wilbanks, and the “bag boy,” Tom Broekel-man. He did not see Joseph reach in his pocket and pull out any money. Officer Schaefer admitted on cross-examination that the boys at some time earlier gave an explanation for the “slapping hands” incident, which was that a third brother had “just returned home from the service and that they were going to visit the third brother at Joseph’s apartment . . . .”

Agent Kemp substantiated much of Officer Schaefer’s testimony. He was standing “outside of the liquor counter, about eight or ten feet from the check out counter” and observed Dennis approach the liquor counter. He observed Dennis place two six packs of beer on the counter and observed him hand some money to the cashier, Marsha Wilbanks. She rang up the sale and placed the money in the register. The beer was passed down to the “bag boy.” He bagged it, and Dennis picked up the bag and “exited from the department.” He saw no one else pass money to the checker. When Dennis left the counter he had the beer. When he left, Dennis was accompanied by “another youthful male” and they started around different departments. The two officers followed. Dennis had the beer. When they got near the exit, “they turned around . . . [and] Dennis handed the beer to his brother . . . When they went out the door, Joseph went to the right, and was then stopped by Agent Kemp. At the counter, no identification was shown. He heard no conversation at the counter.

Dennis and Joseph Bomarito testified at the hearing before the supervisor. Dennis worked in the Venture Store and had worked that day — May 3, 1974. Dennis stated that he went to the tobacco stand in the store and

“got me 4 packs of cigarellos, made by Roi Tan and then my older Brother Joe, he went to the liquor counter and got 2 six packs of Busch. We then proceeded up to the check out lane and got in line. We waited our turn got up there and put the beer on the counter and the cashier rang up Joe’s beer and it came out something like 28$ short. So I told him I would lend him the money because I just got paid that day and I had my bills in my front pocket so I pulled out, and a ten came out ... so I said well, I would just lend you this 28$. And as far as I know she rang it all up on my bill . .

Afterwards, Dennis and Joseph went to find some light bulbs in the store; they couldn’t find them in the department they went to and then “I [Dennis] handed the package of liquor to my brother cause I knew it was against the law for me to carry the liquor out of the store . . . . ” Dennis also testified that Joseph gave the cashier an amount of money but was twenty-eight cents short, “so I lent him the twenty eight cents cause I had to pay for my cigarettes anyway and so I guess she just charged it all to me out of my ten for my cigarettes.” Dennis further stated that Joseph “put money on the counter.” But he came “short.” Dennis did admit to picking up the beer.

Joseph, the older brother, was with Dennis that night. His version of the incident differed somewhat from Dennis’ and the Officers’.

Joseph’s version of the incident was that he approached the counter with two six packs of beer and handed the beer to Dennis “across an obstruction,” and “he [Dennis] put it on the counter . . ..” Joseph testified that he did not put any money on the counter because he had counted the money in his wallet and realized he was short and because Dennis was bringing his money out. Joseph stated he went back to the liquor department and “picked up a couple of six packs” and Dennis got in line to hold a place. When Marsha Wilbanks started to ring up, “I was 28 cents or 24 cents or something short and I turned around to ask Denny if he could loan me some money . . . .” He explained the “slapping of hands incident” by saying that there was “some statement about my older brother Ricky,” who just “got out of the army last May, June, something like that

Joseph stated that when the brothers were in the back of the store,

“I [Joseph] told him that I had best be carrying the beer because he would get in trouble if he goes outside carrying it, if anybody comes up or something because he is under age, so I took the beer and started out the door, there was two sets of doors, I got past the first one and leading up to this, this comes to something else, I’m kinda forgetful where I park the car in those big lots. We started going out the doors and Denny went out one set and I was going out the other, to figure out where the heck I had parked the car.”

There were two other witnesses at the hearing before the supervisor — Miss Marsha Wilbanks, the 19-year-old cashier, and Tom Broekelman, the 19-year-old part-time “bagger.” Marsha knew Dennis from working in the store. She could not remember who was carrying the beer; the beer was already on the counter and so were the cigarettes. “I don’t remember which I rang through first, the beer or the cigarettes, and then I took the money and made my, you know, it could have been I just turned and just got change.” She admitted taking ten dollars from Dennis and did not pay “any attention” concerning the offer of any other money. “I just take what I was handed.” She did not remember to whom she returned the change, but “passed the receipt on to Tom . . . .”

Tom Broekelman did not know who put the beer on the counter. “[T]he stuff was down there on the, you know, the counter and Marsha rang it up, my job is just to bag it up, I bagged it on up and . . . .” He knew Dennis from the store, and “recognized Joe,” because he had purchased liquor before. He did see both brothers reach in their pockets for some money and “Dennis ended up paying for it.” He saw “Dennis tender the money.”

As a result of this incident, the acting supervisor on July 16, 1974, cited the appellant for an alleged liquor violation — unlawful sale to minor in that “you or an employee did wrongfully and unlawfully sell or otherwise supply a quantity of intoxicating liquor ... to Dennis Bomarito, a person under the age of twenty-one years, in violation of and contrary to Section 311.310, Chapter 311, Revised Statutes of Missouri, 1969, as amended.” The hearing was held on October 8, 1974, at which the above evidence was adduced.

On October 10,1974, the supervisor issued his memorandum and order. The supervisor held that:

“Based on the testimony, demeanor and interest of witnesses called in the course of these proceedings, I find that there is competent and substantial evidence to support the following findings of fact:
1. Dennis Bomarito testified that his ten dollar bill was used to pay for two six packs of Busch Bavarian beer and a tobacco purchase.
2. Cashier Marsha Wilbanks testified she took the ten dollar bill from Dennis Bomarito for the purchase and returned his change to him and that she knew he was seventeen years old because he was a former employee of the corporation at this location.
3. Joseph [sic] Broekelman testified that he ‘bagged’ the two six packs of Busch Bavarian beer, but did not know who payed [sic] for the purchase.
4. Detective Charles Schaefer . . . testified that he saw Dennis Bomarito hand the cashier a ten dollar bill after placing two six packs of beer . on the check out counter.
5. State Liquor Control agent Norbert Kemp testified that he observed the transaction from a distance of approximately eight to ten feet, but did not see the denomination of the currency.
The only conclusion of law which can be made with regard to the foregoing findings of fact is that the activity involved herein does constitute a violation of Section 311.310, Revised Statutes of Missouri, 1969, which prohibits the sale or supply of intoxicating liquor to any person under the age of twenty-one years. . . . ”

The supervisor then ordered the license authorizing the sale of original package liquor be suspended for a period of three days commencing on November 4, 1974. The order was later stayed “pending review of this cause by the Missouri Court of Appeals and until further order of the Supervisor.”

In due time, appellant filed its application for review pursuant to § 311.700, RSMo 1969. On December 23, 1974, the circuit court of the City of St. Louis affirmed the decision of the supervisor of liquor control in all respects.

This appeal followed. The appellant contends that the circuit court erred in affirming the order of the supervisor because the supervisor erred in applying the applicable law for the reason that: (1) the substance of the transaction, i. e., the question of whether Dennis was purchasing beer for himself or for his brother, Joseph, was ignored by the supervisor in spite of the fact that this was the appellant’s defense and in spite of the fact that substantial evidence was introduced on this issue; (2) resolution of the “agency” question is crucial since the transaction did not constitute a “sale” within the meaning of § 311.310 if Dennis, a minor, purchased the beer for an adult and not for his own consumption. The contention is made that a minor who purchases intoxicating liquor for an adult does not violate the statute; (3) the purported “findings of fact” of the supervisor do not constitute findings of fact and cannot serve as a basis for the conclusion of law; and (4) the supervisor failed to make any finding “on the issue of whether Dennis Bomarito was purchasing beer for himself or for his brother . . .

Appellant argues that the substance of the transaction was that the beer was in reality a sale to Joseph rather than to the minor, Dennis, and that the supervisor made no findings “on the issue of agency.” “Clearly, the Supervisor,” appellant argues, “considered the question irrelevant to his consideration.” Hence, appellant argues that the question of agency is crucial because “ ‘[wjhere a minor is in fact purchasing for a specific adult person and not for his own consumption, and the seller knows this fact, or is told thereof at the time of the sale, it is held that the sale is not to a minor . . . ”

Appellant argues that Missouri follows this general rule. It relies on State v. Feldman, 150 Mo.App. 120, 129 S.W. 998 (1910), and State v. McLain, 49 Mo.App. 398 (1892). Appellant also relies on decisions in other states. State v. Williams, 307 P.2d 163 (Okl.Cr.1957), and State v. McMahon, 53 Conn. 407, 5 A. 596 (1886).

In State v. Feldman, supra, defendant was charged with selling beer to a minor. This court, under the statute then in effect, held that under the evidence, a sale of liquor was made to a father and not to his minor son and that there was no violation of the statute. This court further held that the minor was not a co-purchaser, but that the sale was made to the father.

In McLain, supra, the defendant was charged with selling liquor to a minor. The evidence disclosed that the defendant furnished liquor to a minor upon the written order of an older brother on several occasions, but on two other occasions there was no written order from anyone. The Kansas City Court of Appeals held that, under the 1889 statute then in effect, § 4588, RSMo 1889, a sale made to a minor under an “order disclosing his principal was a sale to the principal . . . But in the instances where the minor purchased the liquor without disclosing the name of his principal for whom he made the purchases, the law presumed that the purchases were made for his own use. The mere fact, that he was making the purchase . . . for the use of another, would not destroy this presumption.” State v. McLain, supra, 49 Mo.App. at 401.

In some jurisdictions it has been held that where a minor purchases liquor, not for his own consumption but for the use of another person as whose messenger he is acting, liability depends upon the disclosure of the fact of agency, and if the minor informs the dealer that the liquor is for the use of another person who has sent him to buy it and with whose money he pays it, such being the truth, or if the dealer knows from other sources that the real purchaser is an adult and the minor is only a messenger, then the sale is between the adult and the dealer. Leathers v. State, 63 Okl.Cr. 220, 74 P.2d 967, 114 A.L.R. 114 (1937); State v. Williams, supra, 307 P.2d 163. See also annot., 114 A.L.R. 121 (1938).

A leading decision is Leathers v. State, supra. There the defendant was charged with a criminal offense of selling liquor to a minor. Bettie Lou Reed, a little girl of nine years, went to the store and told the defendant that “mamma wants some whiskey.” The grandmother had given money to the little girl. The defendant delivered twenty-five cents worth of whiskey to the minor, who delivered it to her grandmother. On these facts defendant was charged. The Oklahoma Criminal Court of Appeals held that the defendant was not guilty of the offense. The court held that when it is clearly shown that the minor is a messenger for the buyer and this fact is revealed to the seller and the liquor was in fact for the buyer and the money was actually furnished by the buyer and there is no subterfuge, the seller is not guilty. The court relied on a number of authorities — judicial decisions as well as text-writers.

Similarly, in State v. Williams, supra, 307 P.2d 163, two minors employed by an Oklahoma newspaper were instructed by their superior to purchase whiskey at “certain bootlegging establishments” in the county. The two young men equipped with a concealed recorder proceeded to the “Offbeat Bar” and purchased a pint of scotch. They stated that they were buying the liquor for “their boss.” The defendant was charged with a criminal offense. There was a conflict in the testimony, and the Oklahoma court held that whether the minors were purchasing for an adult should have been submitted to the jury. The court repeated the principles established in Leathers v. State, supra.

But in other states, the agency exception does not appear to be applicable. State v. Feldman, 2 Conn.Cir. 476, 202 A.2d 259 (1964); People v. Garrett, 68 Mich. 487, 36 N.W. 234 (1888)—a minor had a note from an adult to deliver one bottle of beer; People v. Lerner, 270 App.Div. 828, 60 N.Y.S.2d 117 (1946).

We do not believe that the authorities relied upon by the appellant are dispositive of the issues presented here. First, we are not dealing with a criminal prosecution; we deal with the regulatory power of the supervisor to regulate and enforce the liquor regulations. Whatever force and effect these authorities may have in Missouri when a criminal offense is charged are not dispositive of the issue presented. Secondly, the evidence in this case as established by the officers indicates that there was substantial evidence for the supervisor to reach the decision he did.

Under the facts and circumstances of this case, we believe that there was substantial and competent evidence to con-elude that the sale of the two six packs of beer was made to a minor, Dennis Bomari-to, and that the circuit court and the supervisor did not err in so holding. There was substantial and competent evidence to conclude that Dennis had possession of the beer, that he handed the money to Marsha and that the sale was made to Dennis rather than Joseph. After a careful reading of the entire record, we are convinced that the order of the supervisor was supported by substantial evidence. Our duty on appeal is well-settled. On judicial review this court determines if the order is supported by substantial evidence and is not clearly contrary to the overwhelming weight of the evidence. Webb v. Norbert Markway Construction Company, 522 S.W.2d 611, 614 (Mo.App.1975); Hanebrink v. Parker, 506 5.W.2d 455, 457 (Mo.App.1974).

We cannot adopt the view urged by the appellant regarding agency in view of the statutory proscription established by our general assembly in § 311.310.

We think that, at least for regulatory purposes, the statutory language of § 311.310 is clear. The agency exception in the earlier statutes was deleted in § 311.-310. The legislature is presumed to know judicial construction of a prior act, so that an amendment substituting a new phrase for one previously construed indicates that a different interpretation should be given to the new phrase. Salitan v. Carter, Ealey and Dinwiddie, 332 S.W.2d 11, 14 (Mo.App.1960); 1A Sutherland, Statutory Construction, § 22.30, 178 (Sands 4th ed. 1972). Therefore, we hold that the language of § 311.310, RSMo 1969, demonstrates, at least insofar as regulation of the industry is concerned, a legislative intent to abrogate the agency defense in Missouri. For us to engraft an agency exception by judicial construction in this context would be to defeat the legislative purpose of the current statute — •§ 311.310.

Despite the changes in modern society and the prevalence of teenage drinking, our general assembly has throughout the years and again most recently prohibited the sale of liquor to persons under the age of twenty-one. Such restriction has its beneficial aspects. The object and spirit of the statute is to protect rather than punish. It protects the public, gives parents their natural right and protects the minors. See State v. McLain, supra, 49 Mo.App. at 399-400, and Farmers Mutual Automobile Ins. Co. v. Gast, 17 Wis.2d 344, 117 N.W.2d 347, 350 (1962).

Dealers who engage in the business of selling liquor stand on a different plane than other commercial operations. While engaging in the business is certainly lawful, it is differentiated from other occupations. No person has the natural or inherent right to engage in it. The state may impose such conditions, burdens and regulations as it may deem wise and proper. Kehr v. Garrett, 512 S.W.2d 186, 189 (Mo.App.1974).

We therefore decline to adopt the position urged by appellant that, if a minor purchases liquor for an adult and not for his own consumption, there is no sale and no violation of § 311.310. Such a position would be fraught with difficulties and, with the ingenuity of intelligent young persons, would in effect nullify the statute and the public policy established by our elected representatives in the general assembly.

As to appellant’s other points, we cannot say that the supervisor ignored the question of whether Dennis purchased the beer for himself or for his brother, Joseph. There was no requirement that such a finding be made. All that the supervisor was required to find was that a sale had been made to Dennis, a minor. This is all the statute requires. Furthermore, we believe that under our statute as it presently exists the question of agency in this context is an irrelevant issue.

Appellant also contends that the issue before the commissioner and the transaction involved constituted a question of law, and that his order is based on an erroneous interpretation of the applicable rule of law. We realize that when a question under review is one of law, we are not bound by the limitation that the order be supported by competent and substantial evidence. Stephen & Stephen Properties, Inc. v. State Tax Com’n, 499 S.W.2d 798, 802 (Mo.1973). But we hold that the supervisor did not err in applying the law as the facts are deduced from this record.

The appellant further contends that the supervisor’s “findings of fact” do not constitute proper findings and cannot serve as a basis for his conclusion of law that the transaction constituted a violation of § 311.-310. Section 536.090.

Although the findings of fact of the supervisor are inartfully drawn, we believe that they were sufficient. Missouri courts have generally required that the findings reveal the basis of the decision of an agency. Iron County v. State Tax Commission, 480 S.W.2d 65, 70 (Mo.1972). Findings need not be made in any particular form or stated with the same degree of formality required by judicial proceedings. All that is essential is that the findings be based upon substantial and competent evidence and be made on material facts. Stephen & Stephen Properties, Inc. v. State Tax Com’n, supra, 499 S.W.2d at 804-805. The practical reasons for the requirement of findings of fact as outlined in Stephen, supra, were, we believe, satisfied in this case. We also believe that it is clear that the supervisor intended by the recital of his “findings” to reveal the basis of his decision.

We therefore hold that the findings of the supervisor were sufficient to satisfy § 536.090.

On oral argument, experienced appellate counsel stressed that, under the unique facts of this transaction, the appellant should not be deemed to have made a sale to a minor but that the sale was in reality made to the adult brother, Joseph. But after carefully scrutinizing this record, we are convinced that the evidence supports the conclusion that there was a sale to a minor and that the order of the supervisor and the judgment of the circuit court are not erroneous.

We, as did the supervisor, note the excellent record of the appellant with the department of liquor control, and note the absence of any other violation. We recognize too the value of the appellant in the business community. Perhaps the transaction described may have resulted from “poor judgment” on the part of the employees of the appellant, as noted by appellant’s counsel in oral judgment in this court, but the law of this state is clear. Until further exceptions are made by the general assembly or until the general assembly adopts a different policy, we are compelled to conclude that the order and judgment should be affirmed.

We have read the entire transcripts, the briefs and the authorities relied upon by the appellant and conclude that the appellant’s points are without merit and that the judgment of the circuit court should be affirmed. § 311.700.

The judgment is affirmed.

McMILLIAN and GUNN, JJ., concur.

      . §311.310: “Any licensee under this chapter, or his employee, who shall sell, vend, give away or otherwise supply any intoxicating liquor in any quantity whatsoever to any person under the age of twenty-one years, or to any person intoxicated or appearing to be in a state of intoxication, or to a habitual drunkard, and any person whomsoever except his or her parent or guardian who shall procure for, sell, give away or otherwise supply intoxicating liquor to any person under the age of twenty-one years, or to any intoxicated person or person appearing to be in a state of intoxication, or to a habitual drunkard, shall be deemed guilty of a misdemeanor; provided, however, that this section shall not apply to the supplying of intoxicating liquor to a person under the age of twenty-one years for medical purposes only, or to the administering of said intoxicating liquor to any person by a duly licensed physician.”

      . The supervisor noted that the licensee has a good record with the Department of Liquor Control since it has been in business since April, 1972, and there have been no violations. “It should be noted that the licensee and counsel expressed concern at a pre-hearing conference . . . that this violation might have affect [sic] on their applications in the future for licenses in other states. Should the Division receive any inquiries from other states, I want to assure you that a full explanation of this violation will be forwarded.
      “This violation will not have any significant affect [sic] upon the corporation renewing its existing licenses or making new applications in the state of Missouri.”

      . The predecessor to § 311.310 — § 2179, RSMo 1S99 — stated: “Any person who shall directly or indirectly sell, give away or otherwise dispose of or furnish or deliver any intoxicating liquor in any quantity to any minor without the written permission of the parent, master or guardian of such minor first had and obtained, shall be guilty of a misdemeanor . . . .” See also § 4588, RSMo 1889.

      . In Feldman, supra, father and son in the employ of the Anti-Saloon League worked as detectives to hunt down violations of the law. While the evidence is confusing, the court held that the “fair inference from the evidence, is that the father bought the beer.” State v. Feldman, supra, 129 S.W. at 999. There was also evidence of enticement.

      . In State v. Williams, supra, 307 P.2d at 167, it is stated: “[W]e hold that it is only where it is clearly shown that the minor is a messenger for the buyer, and this fact is revealed to the seller, and the liquor was in fact for the buyer, and the money was actually furnished for the payment of the same by the buyer, and there is no subterfuge, is the seller not guilty.”
      In State v. McMahon; supra, 53 Conn. 407, 5 A. 596, the handing of an unopened bottle of liquor to a minor when the sale was made to the father is not within the intent and spirit of the liquor law prohibiting the sale and delivery of liquor to minors.

      . Act 70, Senate Bill 438, 77th General Assembly, made the age of majority eighteen years, but the legislature specifically stated that “[t]he provisions of this act shall not apply so as to affect, change or modify any laws of this state pertaining to alcoholic beverages.” The Act, for other reasons, was declared unconstitutional in State ex rel. McNary v. Stussie, 518 S.W.2d 630 (Mo. banc 1974).

      . § 536.090, RSMo 1969: “Every decision and order in a contested case shall be in writing, and, except in default cases or cases disposed of by stipulation, consent order or agreed settlement, the decision, including orders refusing licenses, shall include or be accompanied by findings of fact and conclusions of law. The findings of fact shall be stated separately from the conclusions of law and shall include a concise statement of the findings on which the agency bases its order. Immediately upon deciding any contested case the agency shall give written notice of its decision by delivering or mailing such notice to each party, or his attorney of record, and shall upon request furnish him with a copy of the decision, order, and findings of fact and conclusions of law.”