author: SOMERVILLE, Judge.

text:
    STATE of Missouri, Respondent, v. Darrel Lee COTTERMAN, Appellant.
    No. KCD 28448.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.

      Robert G. Duncan, William E. Shull, Jr., Duncan & Russell, Gladstone, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

Defendant was charged by way of an information with possession of a controlled substance (Section 195.020, RSMo Supp. 1971). Having waived a jury, he was tried to the court, found guilty as charged, and sentenced to two years confinement in the custody of the Missouri Department of Corrections.

Prior to trial defendant filed a motion to suppress the controlled substance which was the gravamen of the offense. The motion was grounded on the proposition that the controlled substance was seized from defendant’s person by means of an unreasonable warrantless search in violation of the Fourth Amendment of the Constitution of the United States. The motion to suppress was not taken up until the day of the trial. Evidence pertaining to the motion, by stipulation, was limited to the contents of two depositions taken of Troopers Fred Suroff and E. J. Dayringer by defendant’s attorney in connection with an action initiated by the troopers for the forfeiture of defendant’s automobile under Section 195.145, RSMo 1969. At this stage of the proceeding, the defendant and the state further stipulated, subject to defendant’s continuing objection that the controlled substance was the fruit of an “unlawful search and seizure”, that the evidence relative to defendant’s motion to suppress and an open court admission by defendant that one of the state’s witnesses, a chemist, if called, would testify that the substance removed from defendant’s person was “methamphetamine”, a “schedule 2 controlled substance”, constituted all the evidence to be presented at defendant’s trial on the merits of the case. A jury was waived and the motion to suppress and the case on its merits were simultaneously submitted to the court per the joint stipulations and open court admission. The motion to suppress and the principal case were taken under advisement by the trial court and it subsequently overruled the motion to suppress and found defendant guilty as charged. Thereafter judgment was entered and sentence was imposed.

Defendant claims on appeal that the trial court erred in not sustaining his motion to suppress the controlled substance because it was obtained by an unreasonable warrant-less search in violation of the Constitution of the United States (Fourth Amendment).

As aptly stated in Sibron v. New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 1901, 20 L.Ed.2d 917, 932 (1968), “[t]he constitutional validity of a warrantless search is pre-emi-nently the sort of question which can only be decided in the concrete factual context of the individual case.” The “concrete factual context” of this case must be determined by melding the deposition testimony of Troopers Suroff and Dayringer.

At approximately 1:50 P.M. on March 6, 1975, both troopers were in a Missouri State Highway patrol car which was stopped at a stop sign posted against northbound traffic on Grand Street in Sedalia, Missouri, at the intersection of Grand and 32nd Streets. While stopped they observed a late model “white Buick convertible” travelling east on 32nd Street. As the Buick proceeded through the intersection the driver “looked over towards us [the troopers] and then he abruptly turned away and slid down”. The troopers were unaware of the identity of the driver of the Buick. Solely on the basis of the limited facts just stated, the troopers became “suspicious” that the white Buick convertible “was a stolen vehicle”. Braced with their suspicion they proceeded to “tail” the white Buick convertible with the thought of running a license check on the vehicle. Before they had a chance to do so they observed the driver of the Buick “reach way down, as if to obtain an object or place an object under the right front seat” and as he did so the Buick abruptly swerved to its left and across the center line. At this point Trooper Suroff “put the red lights of the patrol ear on” for the purpose of stopping the Buick. Immediately thereafter the driver of the Buick swerved back to the right hand side of 32nd Street and stopped his vehicle. The troopers did not stop the Buick for the purpose of arresting the driver for violation of a traffic regulation committed in their presence. The troopers bluntly denied that they arrested or attempted to arrest the driver of the Buick for a traffic offense. To the contrary, the troopers, with commendable candor, testified that they stopped the Buick because they were dually “suspicious” that the vehicle might be “a stolen car” and that the driver “had a weapon”. The troopers attributed their dual suspicions to “three things”: (1) the initial conduct of the driver in turning his face away from them and sliding down in his seat as he passed through the intersection; (2) conduct on the part of the driver which was characterized by the troopers as an attempt to remove or place an “object” under the right front seat of his vehicle; and (3) the erratic movements of the Buick while it was being “tailed” by the troopers.

The patrol car stopped behind the Buick and the two troopers got out and “cautiously” approached the driver’s side of the Buick. As they did so, the driver, the defendant, opened the door on the driver’s side and at the same time “got low in the seat” with his right arm positioned “low in his lap”. At that moment Trooper Suroff ordered defendant to “[p]lace [his] hands where [he could] see them” and then proceeded to “pull” defendant out of the Buick. As defendant was being removed from the Buick he was ordered to give his name or otherwise identify himself, but refused to do so. After removing defendant from the Buick, Trooper Suroff ordered defendant to “place his hands on the car” and then “frisked him [defendant] for a weapon”. Trooper Suroff’s testimony reveals that he used the term “frisk” as being synonymous with “pat-down". Defendant was wearing a jacket at the time. The “frisk” or “pat-down” of defendant revealed an object in defendant’s right jacket pocket which “felt like the butt of a small automatic”. There is not a whit of evidence that the frisk or pat-down revealed any object which felt like a weapon in defendant’s left jacket pocket or that Trooper Suroff visually observed anything in the area of defendant’s left jacket pocket which appeared to be a bulge or which otherwise might indicate the presence of a weapon. The state argues in its brief that “[n]owhere in the transcript does it say whether or not the officer patted the second pocket or went directly into it without patting”. The state’s reference to the “transcript” obviously refers to the depositions given by Troopers Suroff and Dayringer. The state stipulated that evidence pertaining to defendant’s motion to suppress consisted solely of the testimony of Troopers Suroff and Dayringer as disclosed by their depositions. This court on the basis of a holistic review of the evidence concludes that the “pat-down” conducted by Trooper Suroff did not suggest the presence of a weapon in defendant’s left jacket pocket and that Trooper Suroff did not visually observe anything indicating a weapon in the area of defendant’s left jacket pocket. Were it otherwise, it seems only fair to assume that the state would have presented evidence which indicated to Trooper Suroff the presence of a weapon-like object in defendant’s left jacket pocket before he intruded into that pocket.

Trooper Suroff, relying on the facts heretofore set forth as justification for doing so, reached into defendant’s right jacket pocket and removed what initially felt to him like “the butt of a small automatic”. However, instead of being an “automatic”, the right jacket pocket of defendant contained only a “considerable sum of money” which was “folded in half”. Trooper Suroff testified that at this point his “suspicion rose to the fact that maybe he [defendant] had just held up a place”. This was a raw suspicion at best since Trooper Suroff had no knowledge by way of a report or otherwise that a robbery had recently been committed. Buttressed with the bare suspicion that “maybe he [defendant] had just held up a place”, and absent any ratiocinative basis induced by tactile or visual senses from which to reasonably conclude that defendant’s left jacket pocket contained a weapon of some kind, Trooper Suroff reached into defendant’s left jacket pocket and removed an additional sum of money folded around a “plastic Baggi with a white powdery substance”. The record is silent as to the size and dimension of the “plastic Baggi” and its contents. Defendant was then placed under arrest for possession of a controlled substance.

Defendant does not contest the action of the troopers in stopping him and conducting a protective search for weapons. He does contend, however, that the search which resulted in the discovery and seizure of the controlled substance was unreasonable in its scope and therefore cannot be constitutionally justified as a protective search for weapons when measured by the criteria laid down in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The state, citing Terry, contends otherwise and seeks to uphold the constitutionality of the search as falling within the “stop” and “frisk” exception.

In Terry, 392 U.S. at 19-20, 88 S.Ct. at 1879, the Supreme Court carefully pointed out that “. . .in determining whether the seizure and search were ‘unreasonable’ our inquiry is a dual one — whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” The Supreme Court in Terry further emphasized the latter aspect of the “dual” inquiry regarding a protective search for weapons, 392 U.S. at 28-29, 88 S.Ct. at 1883: “The manner in which the seizure and search were conducted is, of course, as vital a part of the inquiry as whether they were warranted at all. The Fourth Amendment proceeds as much by limitations upon the scope of governmental action as by imposing preconditions upon its initiation. The entire deterrent purpose of the rule excluding evidence seized in violation of the Fourth Amendment rests on the assumption that ‘limitations upon the fruit to be gathered tend to limit the quest itself.’ . Thus, evidence may not be introduced if it was discovered by means of a seizure and search which were not reasonably related in scope to the justification for their initiation.” The Supreme Court then proceeded to tightly circumscribe the scope of a war-rantless protective search for weapons: “The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” (Emphasis added.) 392 U.S. at 29, 88 S.Ct. at 1884. The Supreme Court made the following factual observation in Terry, 392 U.S. at 29-30, 88 S.Ct. at 1884, regarding the scope of the search therein involved: “Officer McPadden patted down the outer clothing of petitioner and his two companions. He did not place his hands in their pockets or under the outer surface of their garments until he had felt weapons, and then he merely reached for and removed the guns. He never did invade Katz’ person beyond the outer surfaces of his clothes, since he discovered nothing in his pat-down which might have been a weapon. Officer McFadden confined his search strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons. He did not conduct a general exploratory search for whatever evidence of criminal activity he might find.” The court in Terry concluded that the “carefully limited” protective search for weapons disclosed by the facts, coupled with the existence of “articu-lable facts” which justified its initiation, was not unreasonable in its scope and, perforce, was not proscribed by the Fourth Amendment.

The apical issue in this case is now reached. Assuming, arguendo, but not deciding, that the evidence demonstrated “ar-ticulable facts” from which the troopers could “reasonably . . . conclude that criminal activity [was] . . . afoot” and that defendant might “be armed and presently dangerous”, thereby justifying initiation of a protective search for weapons, did the trooper’s search of defendant’s left jacket pocket go beyond the scope of one “reasonably designed” to discover the presence of a weapon upon the person of defendant? This court concludes that it did. The only indici-um of a weapon upon defendant’s person, as a result of the frisk or pat-down which was conducted, was an unknown object or substance in defendant’s right jacket pocket which felt like the “butt of a small automatic”. The frisk or pat-down failed to reveal any object or substance which felt like or might have led the trooper to believe that a weapon was contained in defendant’s left jacket pocket. Nor was anything visually observed with respect to defendant’s left jacket pocket which could be construed as some indicia of the presence of a weapon. What the trooper characterized as feeling like the “butt of a small automatic” in defendant’s right jacket pocket during the course of frisking or patting down the defendant turned out to be a sum of money in the form of some folded bills. Although the amount of money represented by the folded bills was never disclosed, their presence triggered a raw suspicion in the trooper’s mind that a robbery had recently occurred and without any facts upon which to reasonably conclude that defendant’s left jacket pocket contained a weapon the trooper launched a purely exploratory search of defendant’s left jacket pocket and by chance found the controlled substance in question. The search conducted with respect to defendant’s left jacket pocket failed to comport with the limitations placed upon the scope of a protective search for weapons as spelled out in Terry v. Ohio, supra. Any temptation in a marginal case such as this to gloss over the “concrete factual context” in which the apical issue at hand reposes, must be resisted. If one succumbs to such a temptation he might superficially conclude that justification for a protective search for a weapon in defendant’s right jacket pocket could be transposed, ipso facto, as justification for an unlimited exploratory search of defendant’s left jacket pocket, thereby insulating the latter search from being branded as constitutionally unreasonable and violative of the Fourth Amendment. The danger of doing so lies in the fact that any protective search for weapons, however limited in its scope, could be parlayed by minimal innovativeness into justification for a full blown search of a person. Judicial guidelines for determining the reasonableness or unreasonableness of the scope of a protective search for weapons would be shunted and the “concrete factual context” of individual cases would be reduced to nothing more than a rorschach inkblot, thereby relegating the decisional process of determining reasonableness or unreasonableness, in a constitutional sense, to unbridled individual notions. Determination of such a vital constitutional question must rest upon something far more substantial. Criteria espoused in prior judicial decisions must be resorted to and, when such is done in the instant case, Terry v. Ohio, supra, comes to the forefront. As gauged by the criteria laid down in Terry, the search of defendant’s left jacket pocket which uncovered the presence of the controlled substance on defendant’s person exceeded the bounds of a reasonable protective search for a weapon and went beyond the scope of a search conducted for that purpose. Therefore, the search in question cannot be constitutionally upheld as a reasonable “stop” and “frisk” warrant-less search within the purview of Terry v. Ohio, supra.

The state alternatively contends that the search of defendant’s left jacket pocket was constitutionally permissible because it constituted “a search incident to a lawful arrest” or because “there was probable cause, without referring to the search, to arrest [defendant].” Both of these alternative contentions are at variance with the “concrete factual context” of the case at hand.

The “lawful arrest”, to which the state claims the search was incident, was a traffic violation which occurred in the troopers’ presence, i. e., defendant’s failure to drive his vehicle “upon the right half of the roadway”. Section 304.015.2, supra. If the troopers had in fact effected a custodial arrest of defendant for a violation of a traffic regulation committed in their presence prior to searching defendant’s left jacket pocket, case law exists to support the constitutionality of a search in such a context. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973); and State v. Moody, 443 S.W.2d 802 (Mo.1969). But no custodial arrest of defendant for violation of a traffic regulation occurred. To find that the troopers effected a custodial arrest of defendant for violation of a traffic regulation prior to searching his left jacket pocket would rebuff the clear import of all the evidence. The troopers did not stop defendant for the purpose of arresting him for violation of a traffic regulation. They candidly admitted that defendant’s erratic driving was viewed by them merely as one of several instances of unusual conduct on defendant’s part which caused them to reasonably conclude that the automobile which defendant was driving might have been a stolen vehicle. With equal candor, the troopers stated that they stopped defendant for the purpose of investigating his suspicious conduct and they bluntly denied that they ever arrested him for violating a traffic regulation. Concerning the state’s contention that defendant was arrested for violation of a traffic regulation, it is unnecessary to decide if objective facts or subjective intent controlled determination of whether there was an arrest for the traffic violation. Suffice it to say, total rejection of the troopers’ positive testimony that they did not stop or arrest defendant for violation of a traffic regulation would do violence to the principle that search and seizure questions are to be resolved in the “concrete factual context of the individual case”. The state’s contention that defendant was arrested for violation of a traffic regulation must fail when measured by the “concrete factual context” of this case. Since there was no lawful arrest of defendant for violation of a traffic regulation it necessarily follows that there could be no search incident to a non-existent arrest. To hold otherwise might well be construed as suggesting to law enforcement personnel that they would be on constitutionally safe ground to stop motorists who violated a traffic regulation in their presence and conduct an unlimited search of such persons when there was no intent to place them under custodial arrest for the traffic violation and no facts existed otherwise to indicate a warrantless search. At this point it is appropriate to be reminded “. that the rights of privacy and personal security protected by the Fourth Amendment ‘ * * * are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen * * * ’ Harris v. United States, 331 U.S. 145, 150, 67 S.Ct. 1098, 1101, 91 L.Ed. 1399 (1947).

The state cannot fall back on defendant’s arrest for possession of a controlled substance to constitutionally validate the search as being one incident to a lawful arrest. “It is axiomatic that an incident search may not precede an arrest and serve as part of its justification.” Sibron v. New York, 392 U.S. at 63, 88 S.Ct. at 1902. See also: State v. Witherspoon, 460 S.W.2d 281 (Mo.1970); and Kansas City v. Butters, 507 S.W.2d 49 (Mo.App.1974).

Finally, the state seeks to justify the warrantless search on the premise that “there was probable cause, without reference to the search, to arrest” defendant. Once again the state relies upon defendant’s violation of the traffic regulation heretofore mentioned. The state facilely argues “that the search . . . was constitutional because there was probable cause to arrest . . . [defendant] . for the traffic violation and the search was equivalent to a search incident to a lawful arrest.” This can only be viewed as an attempt by the state to circuitously reargue that the search was incident to defendant’s purported lawful arrest for violation of a traffic regulation. Having already concluded that defendant was neither stopped nor placed under custodial arrest for violation of a traffic regulation, its present argument is patently fallible. It would be incongruous to give weight or credence to the state’s argument that “the search was equivalent to a search incident to a lawful arrest” when no such arrest occurred. Otherwise, cause to arrest for violation of a traffic regulation, standing alone, would insulate an unlimited search of a person from being attacked as constitutionally unreasonable within the meaning of the Fourth Amendment. It would clothe such searches with the same constitutional imprimatur given searches incident to lawful custodial arrests. The state has failed to cite any cases which go so far. United States v. Robinson, supra, Gustafson v. Florida, supra, and State v. Moody, supra, do not lend authoritative support to such a far-reaching proposition. The implication of the state’s argument is glaringly obvious. A right to conduct an unlimited search based upon probable cause or cause in fact to arrest a motorist for violation of even the most routine traffic regulation, even though no arrest in fact occurred, would emerge as a new exception to the Fourth Amendment’s proscription of “unreasonable searches and seizures”. This court lacks the power or inclination to carve such an exception.

The controlled substance was obtained by means of an “unreasonable search” in violation of the Fourth Amendment to the Constitution of the United States and defendant’s motion to suppress should have been sustained.

The judgment is reversed.

All concur.

      . See: Section 304.015.2, RSMo 1969, and Section 43.195, RSMo 1969.

      . Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. at 1880.

      . Terry v. Ohio, 392 U.S. at 30, 88 S.Ct. at 1884.

      .Id.


source: Caselaw Access Project

author: SHANGLER, Presiding Judge.

license: Public Domain

text:
    CITY OF RIVERSIDE, Missouri, Appellant, v. David F. WEDDLE, Respondent.
    No. KCD 28467.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.

      James D. Boggs, Witt & Shafer, Platte City, for appellant.
    Roy W. Brown, Kansas City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

The defendant Weddle was charged by Missouri Uniform Traffic Ticket with operation of a motor vehicle while intoxicated, in violation of ordinance. He was convicted in the municipal court.

On the trial de novo in the circuit court, the municipality commenced the prosecution by an offer in evidence of the Code of General Ordinances of the City of Riverside, with specific reference to § 9.17 [which prohibits operation of a motor vehicle by an intoxicated person] and § 17.01 [which defines the penalty for such an infraction]. The defendant objected that the ordinances had not been properly qualified by the city clerk, and moved dismissal of the action. The defendant moved for dismissal on the additional ground that ,the information failed to describe sufficiently the particular charge against him. The court sustained these contentions and dismissed the prosecution.

On this appeal the municipality attempts to reverse the dismissal of the action on the contention that the Uniform Traffic Ticket was sufficient to inform the defendant that he was charged with the operation of a motor vehicle while in an intoxicated condition in violation of ordinance § 9.17. The antecedent question which occurs, however, is whether the judgment of dismissal was an adjudication on the merits favorable to the defendant, and so an acquittal which precludes further prosecution for the same conduct on principles of double jeopardy.

There can be no question that the double jeopardy clause of the Fifth Amendment applies to petty offenses. This protection of the constitution makes no distinction between offenses or court systems. Kansas City v. Bott, 509 S.W.2d 42, 46[4] (Mo.banc 1974). A proceeding to punish for the violation of a city ordinance by fine or imprisonment bears the character of a criminal action. Stevens v. City of Kansas City, 146 Mo. 460, 48 S.W. 658, 659 (1898). A verdict of acquittal is final and ends the jeopardy of further prosecution for the same offense. Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).

A valid municipal prosecution requires, as a minimum, proof of the ordinance upon which the conviction rests. City of Kansas City v. Scanland, 506 S.W.2d 18, 21[8] (Mo.App.1974); City of St. Joseph v. Roller, 363 S.W.2d 609, 611[3-5] (Mo.1963). In the absence of such proof or stipulation, the ordinance is not in evidence, [for neither a trial nor appellate court may judicially notice municipal enactments. City of Rolla v. Riden, 349 S.W.2d 255, 258[5, 6] (Mo.App.1961)] and the prosecution fails. The dismissal by the circuit court after the neglect of that proof was an adjudication that the requirements for conviction could not be met and, in effect, a judgment of acquittal on the merits. A new trial is not open to the municipality by means of an appeal even though the acquittal may appear to be erroneous. Kansas City v. Bott, supra, l. c. 46.

The judgment is affirmed.

All concur.

      . The circuit court determined that the ordinances of the City of Riverside were not properly proved and excluded them from evidence. The provisions of §§9.17 and 17.01 are not part of the record on appeal and we may not take judicial notice of them. Schmitt v. City of Hazelwood, 487 S.W.2d 882, 886[9] (Mo.App.1972). The implicit accession of the parties leaves no doubt that ordinance § 17.01 defines the punishment for infraction of § 9.17, thus this proceeding comes within Bott v. Kansas City, supra, which applies the double jeopardy principle to municipal prosecutions.


author: DIXON, Presiding Judge.

text:
    Sandra and Danny L., Parents-Appellants, v. JACKSON COUNTY JUVENILE COURT, Respondent.
    No. KCD 28608.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.

      Adrienne E. Volenik, Jeanette Ganousis, St. Louis, Gwendolyn M. Wells, Carol Coe, Legal Intern, Gregory P. Barabas, Legal Intern, Kansas City, for parents-appellants.
    Cheryle L. Micinski, Kansas City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

An appeal from the order of the Juvenile Court of Jackson County assuming jurisdiction over a child and placing the custody of the child in the Division of Family Services for foster home placement on a temporary basis. The parents appeal, contending that the court erred in determining the child was neglected within the meaning of Section 211.031 RSMo 1969 and asserting constitutional error in the application of the statute.

Before discussion of the only issue necessary for decision in the case, the claims of constitutional error must be disposed of.

The claim of constitutional error in five lettered subsections of the point in the parents’ brief, further divided in a variety of fashions under the lettered subpoints, may be comprehended under the general heading of a claim that Section 211.031 violates the due process clause of the 14th Amendment to the United States Constitution in that it is unconstitutionally vague. The transcript of the hearing and the proceedings before the Juvenile Court reveal not one word with respect to any such claim of constitutional infirmity. There was absolutely no attack made at any time before, after, or during the hearing before the Juvenile Judge with respect to the claimed error. In this state of the record, the constitutional issue, if any, is not properly raised and cannot be considered. Watkins v. Wattle, 540 S.W.2d 69 (Mo. banc 1976); Christiansen v. Fulton State Hospital, 536 S.W.2d 159 (Mo. banc 1976), and this principle applies in juvenile cases; Morrison v. State, 252 S.W.2d 97 (Mo.App.1952).

The only issue for determination is the first point in the parents’ brief which alleges error in the following language: “The Jackson County Juvenile Court erred in its finding because marital discord is not a proper reason for declaring a child to be neglected or dependent within the meaning of Section 211.031 RSMo 1969, V.A.M.S.”

The petition in this case alleges that the environment of the child is injurious to his welfare in the following language:

“The environment of Anthony L. is injurious to his own welfare because the persons legally responsible for his proper care, custody, supervision and maintenance fail or are unable to properly provide such in that the marital discord between natural parents creates an unhealthy emotional environment for the child.”

The point is stated in terms of an absolute failure of a legal basis for a finding of neglect. A comparison of the point with the allegation of the petition demonstrates that the claim is too broad. The allegation is that the environment of the child is injurious to his welfare, a ground specifically recognized in the statute, the allegation of the marital discord is simply an explication of the causative factor in the environmental situation. The argument expands the issue to the question of the evidential support for the trial court’s finding. The argument of the parents, as best it may be understood, is that the court erred because no evidence existed that any harm had occurred to the child, but only that such harm might occur in the future. The whole thrust of parents’ argument is that before the court can consider behavior of the parents as affecting adversely the emotional health of the child, the emotional health of the child must be demonstrated to be deficient and that anticipated harm to the emotional state of the child is not a sufficient reason for the court to invoke its jurisdiction with respect to the custody of the child.

Preliminary to the disposition of this issue, it should be noted that juvenile proceedings and appellate review of such partake the nature of civil proceedings. State ex rel. R. L. W. v. Billings, 451 S.W.2d 125 (Mo. banc 1970); In re In Interest of T-G--, 455 S.W.2d 3 (Mo.App.1970). The scope of review is as in court-tried cases. In re Ayres, 513 S.W.2d 731 (Mo.App.1974). Our review involves deference to trial court findings as recently stated and clarified in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

It must be emphasized initially that the record in this case does not demonstrate any objection by the parents’ attorney to the competency or qualification of those who testified in support of the petition, nor was there any challenge to the competency of the evidence offered by the juvenile officer in support of the petition.

The record before this court is sufficient to support the adjudication. It is replete with conclusions elicited from witnesses whose qualifications were not very well explicated but were not questioned. The evidence, in the face of an attack as to its sufficiency to support the judgment, must be taken as true, together with all the reasonable inferences therefrom. Beneficial Finance Co. of St. Charles, Inc. v. Kitson, 530 S.W.2d 497 (Mo.App.1975); Nutz v. Shepherd, 490 S.W.2d 366 (Mo.App.1973), and this is the rule in Juvenile cases; In re In Interest of T-- G--, 455 S.W.2d 3 (Mo.App.1970).

Considering the evidence in that light, the court was presented with evidence which indicated that the behavior of the parents and the resolution of their marital problems was upon such a basis that it posed a serious threat to the emotional stability of the child. In addition, the evidence, unobjected to, came into the record that these parents were in a high risk area in terms of a potential for child abuse.

In the light of this evidence, the finding of the trial court that the child’s environment was injurious to his welfare is clearly justified. Although not required to do so, the court held a bifurcated hearing on, first, adjudication and then disposition. The evidence referred to is on the adjudication hearing. After the file was introduced on the dispositional hearing, the evidence supporting the finding is even stronger. The use of bifurcated proceedings in ne-gleet cases in such a mechanical fashion may be questioned since some of the social history and medical evidence may be highly relevant on the issue of neglect. See A-S-- v. Murphy, 487 S.W.2d 589 (Mo.App.1972). The concern and protection of the juvenile court extends to the protection of the emotional well-being of the child. In re Ayres, 513 S.W.2d 731, 735 (Mo.App.1974), where the court said, “The basic goal of a neglect law is to prevent the social, physical, and psychological deterioration of children.”

Nor must the juvenile court stand idly by in the face of a situation recognized as potentially harmful to the emotional well-being of a child and await the child’s emotional destruction before attempting to protect the child from an injurious and harmful environment potentially destructive of the child’s emotional health.

What has been said is not intended to approve of the manner in which the witnesses were qualified and the manner in which the testimony was elicited in the hearing in this case. When a juvenile court undertakes to remove a child from a home upon the basis of a threatened emotional harm to the child based upon the behavior of the parents, the proof of the projected harm should be by qualified experts upon the basis of reasonable expectation of probable harm as a psychological fact, and not upon mere conclusions. In the light of the error complained of and bearing in mind that this court reviews a juvenile proceeding as a court-tried civil case, there is no basis in this record for disturbing the judgment of the trial court. There is nothing in this record which engenders a firm belief that the finding of the trial court was erroneous. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

Affirmed.

All concur.

      . There was an objection to this testimony based on some claim of confidential relationship which is not now urged as a ground of error.


author: BILLINGS, Chief Judge.

text:
    Ex parte Robert HOUGH, Petitioner.
    No. 10541.
    Missouri Court of Appeals, Springfield District.
    Nov. 30, 1976.
    Donald E. Bonacker, Bonacker & Reynolds, Springfield, for petitioner.
    Ben Upp, Asst. Pros. Atty., Springfield, for respondent.
    Before BILLINGS, C. J., and STONE and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

In this original proceeding in habeas corpus the petitioner charged he was being unlawfully restrained of his liberty by respondent Sheriff of Greene County. He alleged he had been charged with contempt in three cases in the Circuit Court of Greene County and was sentenced to three concurrent ninety-day sentences.

Among other things, petitioner contended his imprisonment under the sentences was illegal because the purported commitment failed to set forth the particular circumstances of the offense as required by § 476.-140, RSMo 1969.

The purported commitment recites the appearance of the parties, that a hearing was conducted on motions for contempt in three cases and concludes: “It is the judgment of the court that Robert Hough be sentenced to Greene County Jail for a period of ninety (90) days in [each case], said three sentences to run concurrently for total sentence of 90 days.”

Following our issuance of the writ of habeas corpus we scheduled a hearing at which time counsel for respondent admitted the purported commitment was insufficient as a matter of law.

The requirements of the statute are mandatory in criminal contempt proceedings. Ex parte Brown, 530 S.W.2d 228 (Mo. banc 1975); Ex parte Huff, 516 S.W.2d 778 (Mo.App.1974); In re Randolph, 474 S.W.2d 86 (Mo.App.1971); Glenn v. Hendrix, 349 S.W.2d 532 (Mo.App.1961).

Petitioner ordered discharged.

All concur.

      . “Whenever any person shall be committed for any contempt specified in sections 476.010 to 476.310, the particular circumstances of his offense shall be set forth in the order or warrant of commitment.”
      Also see Rule 35.01, V.A.M.R.


author: McMILLIAN, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jardee CARTER, Defendant-Appellant.
    No. 37384.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Nov. 30, 1976.

      Timothy Braun, Asst. Public Defender, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Sam C. Bertolet, Asst. Pros. Atty., St. Louis County, Clayton, for plaintiff-respondent.
   McMILLIAN, Presiding Judge.

Defendant appeals from a judgment of conviction entered upon a jury verdict finding him guilty of stealing property valued over $50, § 560.156, RSMo 1969. A sentence of five (5) years imprisonment was imposed by the trial court under the Second Offender Act, § 556.280, RSMo 1969. We reverse and remand for a new trial.

On appeal, defendant raises three basic contentions. First, he alleges error in the trial court’s failure to sustain his challenge for cause of a juror. Secondly, he contends that certain comments by the prosecutor during closing argument were beyond the scope of the evidence and constituted plain error. Thirdly, appellant launches a multi-pronged attack on § 560.156, RSMo 1969, on the basis that the failure of the statute to define “value” makes it unconstitutionally vague. Building on this premise, appellant argues that the vagueness should be resolved in his favor and, therefore, that only evidence as to wholesale cost rather than retail price was properly admissible. Comments in the prosecutor’s closing argument, made over appellant’s objections, directing the jury’s attention to retail price and to merchandising costs incurred by the retail store as properly considered in establishing a “value” of over $50 are cited as further examples of the injection of inadmissible material.

We find error in the trial court’s ruling on the prospective juror and, therefore, reverse the conviction. The other contentions of appellant will be discussed summarily for purposes of retrial.

On February 22,1975, a security guard at a Kroger grocery store observed the appellant remove five bottles of Johnny Walker Red Label Scotch and three bottles of Canadian Club whiskey from a shelf, place them under his coat, and leave the store without paying for them. The security guard took appellant into custody as soon as he left the store. Over appellant’s continuing objection that evidence as to retail value was inadmissible, evidence was introduced that the retail price of the five bottles of Johnny Walker Red Label Scotch was valued at $7.19 each, that two of the three bottles of Canadian Club whiskey retailed at $7.49 each with the one remaining bottle of Canadian Club whiskey retailing at $7.29. The aggregate retail value, therefore, was $58.22. Witnesses for the state also established that the absolute “rock-bottom” cost of the stolen liquor was $50.10. This figure was derived from wholesale cost agreements between Kroger and the liquor distributors. The cost agreements reflected wholesale costs to Kroger of $6.18 each for the Johnny Walker Red Label Scotch as of December 16, 1974 and $6.40 each for the Canadian Club whiskey as of August 19, 1974. Since Kroger utilized no serial number inventory control system for liquor, the witnesses were unable to state whether the particular bottles stolen were purchased pursuant to these particular wholesale cost agreements or at an earlier date. The witnesses noted that the wholesale cost of liquor had been rising at a rate of 4% to 5% per year and that if any of the bottles were purchased prior to the date of the wholesale cost agreements referred to, the wholesale cost would, therefore, have been lower.

In a spirited closing argument, the prosecutor, over defendant’s objection, discussed with the jury not only the “rock-bottom” wholesale cost and the retail price but also suggested that the actual cost to Kroger of the merchandise had to exceed $50.10 because Kroger incurred merchandising costs. Without objection by the defendant, the prosecutor then made reference to skyrocketing prices and the jury’s opportunity to combat that problem by convicting this defendant. Also, without objection by the defendant, the prosecutor emphasized the seriousness of the offense suggesting that the security guard had been in danger while apprehending the defendant. Finally, the state’s attorney noted that sympathy for the defendant was not warranted in this case because the defendant was not “the kind of man who is down on his luck and is stealing a little money to keep his kids going.” These latter comments and others of a similar nature are cited by the defendant as improper personalization of the argument to the jury and as beyond the scope of the evidence. Relief under the plain error rule is sought.

During the voir dire examination, defendant moved to strike a juror for cause based on the following exchange. In the course of the initial general questioning of all of the jurors, the following transpired:

“Q. Mr. Whaley, how long have you been married?
“A. I’ve been married, let’s see, 11 years.
“Q. Do you have children?
“A. I have one stepdaughter, 15.
“Q. You’re personnel supervisor for General Motors on Union?
“A. Yes, sir.
“Q. Okay. Now, I’m sure in that job you run across many people with many types backgrounds. Have you ever had to talk or come across the criminal justice system in your job? I mean, talk to people, the police about people’s records?
“A. Yes.
“Q. Do you have any preconceived notions about the criminal justice system that would affect your judgment here.
“A. No, I don’t believe so.”

Later, Mr. Whaley was asked the following questions:

“MR. BRAUN: All right. Now, have any of you or a member of your family or any close friend of your family, somebody that you’re pretty close to, ever been in law enforcement, military or civilian, and that includes like the FBI, any security agency, treasury agent or other, or been employed by a law enforcement agency as a civilian or employed as a private security guard or with a private security agency?
“MR. BRAUN: Mr. Whaley.
“MR. WHALEY: Yes. For three years prior to going to work for General Motors I was on the St. Louis Police Department as a patrolman.
“MR. BRAUN: Now, as a former policeman do you think you can sit on a criminal case with an open mind?
“MR. WHALEY: I would like to say yes, I think I can, but, I mean, it’s been nine years.
“MR. BRAUN: You’re not sure?
“MR. WHALEY: No, I couldn’t say one way or another if it would affect me or not. I can’t say positively.
“MR. BRAUN: Deep in your heart do you feel you could be honest and impartial? ■
“MR. WHALEY: Yes, I do. I do believe that.
“MR. BRAUN: Okay. Any others?

Later, the following occurred:

“MR. BRAUN: Now, some of State’s witnesses will be security officers and Maplewood police officers. Now, I’m going to ask you this specifically, Mr. Wha-ley — not to put you on the spot — but as a former police officer and just a human being, would you be more inclined to believe the testimony of a security officer or policemen just because of their position?
“MR. WHALEY: There’s a possibility there.
“MR. BRAUN: That you would be inclined to believe them?
“MR. WHALEY: Right.
“MR. BRAUN: Your Honor, I’d like to have him stricken for cause.
“THE COURT: Request will be denied.”

Finally, the following exchange transpired:

“MR. BRAUN: All right. Now just because the police think a man is guilty that doesn’t mean he necessarily is guilty. Does anybody have any problem with that?
“MR. Whaley, would you have any problem if a policeman thought the man was guilty?
“MR. WHALEY: Not at all.
“MR. BRAUN: Mr. Whaley, have you ever testified in a criminal case?
“MR. WHALEY: Yes, I have.
“MR BRAUN: About how many times?
“MR. WHALEY: Five or six times.
“MR. BRAUN: Have you ever testified (sic) in a criminal trial?
“MR. WHALEY: Yes, I did.
“MR. BRAUN: What was the outcome of those trials?
“MR. WHALEY: It was a conviction.
“MR. BRAUN: Just one time you testified in a trial?
“MR. WHALEY: Right. The one conviction, right.
“MR. BRAUN: All right.”

As a result of the trial court’s denial of defendant’s motion to strike Juror Whaley for cause, the defendant was forced to expend one of his peremptory strikes to remove the juror. It is well-established in Missouri that the defendant is entitled to a full panel of qualified jurors before the exercise of his peremptory challenges, State v. Lovell, 506 S.W.2d 441, 443 (Mo.banc 1974); State v. Land, 478 S.W.2d 290, 292 (Mo.1972). To create this panel of qualified jurors, persons within the specific statutory exclusions must, of course, be deleted, §§ 546.110, 546.120, 546.140, 546.150, RSMo 1969. The specific statutory exclusions, however, are not exhaustive, State v. DeClue, 400 S.W.2d 50, 56 (Mo.1968) and “. . if for any reason, statutory or otherwise, a venireman is not in a position to enter the jury box with an open mind, free from bias or prejudice, he is not a competent juror ..” Kendall v. Prudential Life Ins. Co. of America, 319 S.W.2d 1, 5 (Mo.App.1958), rev’d on other grounds, 327 S.W.2d 174 (Mo.banc 1959). In the present case, a careful consideration of the entire voir dire examination of Whaley reveals great uncertainty in the juror’s mind as to his ability to be impartial because of his past association with law enforcement. We recognize that the exclusion of jurors is a matter within the sound discretion of the trial judge, State v. Cuckovich, 485 S.W.2d 16, 22-23 (Mo.banc 1972). We also note, however, that the language of the Supreme Court in State v. Lovell, supra, at 444, is as follows:

“. . . In exercising this discretion, the decision of the trial court should rest upon the facts stated by the juror with reference to his state of mind and should not be allowed to depend upon the conclusions of the juror whether he could or would divest himself of a prejudice he admitted to exist in his mind. . . . ”

From the transcript in the present case, we can discover no such basis for the trial judge’s exercise of discretion. In the presence of equivocal answers by the prospective juror, the trial judge made no effort to question the juror to explore possible prejudice. The present case is, therefore, distinguishable from the two cases relied upon by the state. In both State v. Cuckovich, supra, and State v. Drake, 518 S.W.2d 335 (Mo.App.1975), equivocal responses by the prospective jurors were withdrawn when the trial judges clarified the questions propounded by counsel.

In deciding that Juror Whaley should have been excluded for cause, we reiterate our position stated in State v. Holliman, 529 S.W.2d 932, 942 (Mo.App.1975):

“Not only should a jury which hears a criminal case and which has great power be impartial in fact, but also if we are to hold true to our ideals and retain the confidence of the community, the jury should also give every outward appearance of impartiality.”

One final comment seems appropriate. In our opinion, retention of a juror as questionable as Juror Whaley and the resulting necessity for a new trial is an illogical expenditure of the citizenry’s time and money in light of the large pool of potential jurors made available for service in criminal cases. Errors in the exclusion of potential jurors should always be made on the side of caution. See also State v. Gordon, 543 S.W.2d 553, No. 28173 (Mo.App. KCD 1976).

The most interesting of the other contentions of the defendant is the claim that the statutory section under which he was prosecuted, § 560.156, RSMo 1969, is unconstitutionally vague because it fails to define “value” and, therefore, is not “sufficiently explicit to inform those who are subject to it of what constitutes a violation of the statute.” To support this contention, defendant directs our attention to numerous cases in which diverse evidentiary approaches were approved as properly establishing “value,” see, e.g., State v. Bevelle, 527 S.W.2d 657, 660 (Mo.App.1975); State v. Morse, 514 S.W.2d 375, 376-77 (Mo.App.1974); State v. Matzker, 500 S.W.2d 54, 57 (Mo.App.1973). Rather than illustrating unconstitutional vagueness, however, we feel that the numerous cases demonstrate that “value” is properly defined situationally. This analysis is not inconsistent with the suggestion by the state that “value” has been judicially defined in Missouri to be “open market value,” see, e.g., State v. Armstrong, 361 S.W.2d 811, 817 (Mo.1962); State v. McCarthy, 336 S.W.2d 411 (Mo.1960). Our analysis simply recognizes that the quantum of loss to a particular victim may vary in terms of whether that victim acquired the product in a wholesale or retail marketplace. On the other hand, we disagree with defendant that evidence of retail price is not relevant to the question of loss to the victim. We do not deny that retail price is simply an expectancy, an amount the owner hopes to receive for the item in the future. Nor do we deny that the profit factor included in retail prices can be arbitrarily inflated or deflated by the merchant, and therefore, not realistically represent a true value to the victim. From this alone, however, we cannot conclude that evidence of retail price is not some evidence of market value which we believe is the true test.

In Maisel v. People, 166 Colo. 161, 442 P.2d 399 (1968), where the owner of the property testified to the retail price of eight hunting knives, six pocket knives, two straight razors, and two transistor radios, which had been stolen by the defendant, the court posed the question:

“Is evidence of retail price evidence of market value? We conclude that it is, especially where as in the instant case we are dealing with items which were being sold over the counter on a more-or-less

daily basis, and there is nothing to indicate that the retail price is higher than the true market value.

“In People v. Irrizari, 5 N.Y.2d 142, 182 N.Y.S.2d 361, 156 N.E.2d 69, the New York Court of Appeals was faced with a similar situation. There some suits were stolen from a department store and the owner thereof was permitted to testify as to the wholesale price and the retail price of each suit. In holding that evidence as to retail price was proper, the New York Court of Appeals stated as follows:

‘In short, market value, as the term is used in section 1305, denotes not the value of the goods in the market in which the owner had purchased them or in which he could replace them, but the value in the market in which the goods were being traded, namely, the price at which they would probably have been sold in the regular course of business at the time when and place where they were stolen. And so, we note, the courts have held in a number of other jurisdictions where the market value is likewise the criterion for determining the value of stolen property.’
“Similarly in Lauder v. State, 233 Md. 142, 195 A.2d 610, the Court of Appeals of Maryland stated that in the case of a stolen tape recorder, the State had the burden of proving its value and the ‘test is market value, and particularly retail value.’ So, the reasoning in both the Irrizari and Lauder cases is that in the absence of any evidence to the contrary, evidence of retail price is not only admissible but is perhaps the best evidence of market value.”

Consequently, we hold that in cases involving the theft of personal property the value of the property taken shall be the fair market value or its reasonable selling price at the time and place of the theft. Fair market value, as thus determined, may or may not be either the wholesale cost or the retail price. Inasmuch as retail price, as well as wholesale cost, does shed light upon fair market value, both have some relevancy in determining fair market value. Thus the prosecutor’s argument in this respect was not error. See also State v. Gordon, 543 S.W.2d 553, No. 28173 (Mo.App. KCD 1976).

Defendant’s remaining complaints relating to prosecutorial comments personalizing the jury argument and going beyond the scope of the evidence may be simply answered by our expression of confidence that the prosecutor will be more circumspect on retrial.

The judgment of the trial court is reversed and remanded for a new trial.

STEWART and RENDLEN, JJ., concur.

      . 50 Am.Jur.2d, Larceny, § 45, p. 209

        “Ascertainment of value of property taken.

        “In distinguishing between- grand and petit larceny where the classification rests on value, the rules which establish value in civil cases have been held applicable. Thus, in the case of common articles having a market value, the courts have usually rejected the original cost and any special value to the owner personally as standards of value for purposes of graduation of the offense, and have declared the proper criterion to be the price which the subject of the larceny would bring in open market — its ‘market value’ or its ‘reasonable selling price,’ at the time and place of the theft, and in the condition in which it was when the thief commenced the acts culminating in the larceny. Moreover, for the purpose of determining the grade of larceny, the value of property stolen is its reasonable market value rather than its fixed or controlled price. Fair market value does not depend solely on the wholesale or cost price of the goods taken, but is affected by the retail price as well, and it has been held that the wholesale and retail prices, established by experts if necessary, may fix the range within which the jury may determine fair market value. .. . ”


author: CLEMENS, Judge.

text:
    Patricia POWERS, Appellant-Respondent, v. Robert POWERS, Respondent-Appellant.
    Nos. 37538, 37539.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 30, 1976.

      Klamen, Summers & Compton, Clayton, for appellant-respondent.
    Paul Brackman, Brackman, Copeland, Oetting, Copeland, Walther & Schmidt, Clayton, for respondent-appellant.
   CLEMENS, Judge.

Plaintiff-wife and defendant-husband cross appeal from $4,500 attorney fee and $342 suit money award, allowed after this court’s decision in the case of In re Marriage of Powers, 527 S.W.2d 949 (Mo.App.1975). Each party relies on two points.

Plaintiff-wife contends the court improperly refused to admit evidence of her current expenses. Section 452.355, V.A.M.S. (1976 Supp.) requires the consideration of “all relevant factors, including the financial resources of both parties . . . ” when considering the award of attorney’s fees. Current expenses are relevant to financial resources, but in her offer of proof plaintiff presented nothing to show any change in expenses shown by the transcript of the previous trial. See In Re Marriage of Powers, l.c. 952, supra. The exclusion of evidence of current expenses was therefore harmless.

Both parties contend the amount of the award shows an abuse of discretion. The amount of award is within the broad discretion of the trial court. After a full review of the evidence we find the trial court did not abuse its discretion.

Defendant-husband contends the trial court erred in making the allowance after the appeal was decided. The Point Relied On does not state why this was erroneous. An abstract point fails to comply with Rule 84.04(d) and preserves nothing for our review.

Judgment affirmed.

WEIER, P. J., and DOWD, J., concur.


author: FLANIGAN, Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION, Plaintiff-Appellant, v. Bill A. SCOTT et al., Sylvester R. Sutter and Mary Katherine Sutter, Defendants-Respondents.
    No. 9945.
    Missouri Court of Appeals, Springfield District.
    Dec. 2, 1976.

      Bruce A. Ring, William T. Powers, Jr., Jefferson City, George M. Johnson, Springfield, for plaintiff-appellant.
    Gerald H. Lowther, Theodore L. Johnson III, Lowther, Johnson & Pranks, Springfield, for defendants-respondents.
    Before STONE, P. J„ and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

The State Highway Commission brought this action to condemn 1.65 acres of a tract of land owned by defendants Sylvester R. Sutter and Mary Katherine Sutter. The land is located in Lebanon, Missouri, in the northeast quadrant of the “1 — 44, Highway 5 Interchange.” The area of the entire tract, before the taking, was 2.66 acres. The area remaining after the taking is 1.01 acres. Defendants filed exceptions to the report of the commissioners, who had awarded defendants $46,000. At the trial, the jury awarded defendants $99,375. Judgment was entered for the additional $53,375, plus interest. The Highway Commission appeals.

Appellant’s first point is that the trial court erred in permitting defendants’ witnesses, over objection, to testify concerning the details of a lease pertaining to a nearby tract of land and to give their opinion as to the value of that tract which they deemed comparable to the condemned land. The point is well taken.

One of defendants’ witnesses, Fred Wagner, a real estate appraiser, gave testimony concerning the prices involved in the sales of two nearby tracts which he considered comparable to the condemned land. Those two tracts were the Wrinkle land and the. Compton land. Thereafter, over the objection of appellant, Wagner gave his opinion as to the value of the “Standard Oil property” which was a nearby tract leased to an oil company in 1970 for an initial term of 10 years at a monthly rental of $800. The lease had “three additional five-year options,” the exercise of each option increasing the monthly rental by $50.

The Standard Oil tract, according to Wagner, had an area of 36,528 square feet. Using a “capitalization” formula of 7 percent, the particulars of which he did not delineate, Wagner gave his opinion that the Standard Oil tract had a value of $3.72 per square foot. Wagner described the Standard Oil tract as “a much smaller, obviously a better located more accessible tract, being directly off of the ramp here and on Highway 5, but we are reducing value in a very small area. It’s concentrated so the unit price is obviously much higher at $3.72.” He added that the defendants’ land, prior to the taking, contained 2.66 acres which, he said, amounted to 115,870 square feet. At the request of defendants’ counsel Wagner multiplied 115,870 square feet by $3.72 and arrived at the figure of $431,036.

Wagner testified that in his opinion the defendants’ 2.66 acre tract, immediately before the taking, had a value of $125,000 and the value of defendants’ remaining 1.01 acres, immediately after the taking, was $2,500, “so the damages would be $122,500.” In arriving at these figures Wagner took into consideration his opinion of the value of the Standard tract, based upon the calculations concerning the lease.

Defendants’ witness Maurice Burlison, a real estate appraiser, testified, over objection, that in arriving at his estimate of the damage, he considered the terms of the lease on the Standard Oil tract and “capitalized that at 12 percent” to arrive at his opinion with regard to the value of the Standard Oil tract, which was $80,000. Burlison placed defendants’ damages at $157,000 based upon a “before taking” figure of $160,000 and an “after taking” figure of $3,000.

Two other witnesses, testifying for defendants, gave “before taking” figures of $112,500 and $160,000 and “after taking” figures of $2,500 and $3,000 respectively. Three witnesses for the Highway Commission gave testimony in which the “before taking” figures ranged from $49,000 to $54,000 and the “after taking” figures ranged from $3,000 to $4,800.

Missouri cases support the principle that the particulars of a lease dealing with comparable land, and an expert’s opinion with regard to the value of the comparable land based upon computations involving the rental terms, are not admissible on the issue of damages to the condemned land. State v. Vorhof-Duenke Co., 366 S.W.2d 329, 340[16] (Mo. banc 1963); Land Clearance Authority v. Doerenhoefer, 404 S.W.2d 385, 387 (Mo. banc 1966); State ex rel. Kansas City Power & Light Co. v. Parma, 467 S.W.2d 43, 47 (Mo.1971). The rule is one of expediency and its application spares the court and jury from a time-consuming inquiry into collateral matters of limited relevance.

In Vorhof-Duenke, supra, the court said at p. 340: “There is no merit to the defendants’ contention that the court erred in refusing to allow their witnesses to testify as to the market value of comparable real property computed from the witnesses’ knowledge of the lease on the property and its terms. The capitalization of rentals may tend to show the value of the particular property under lease, but an expert witness cannot give an opinion of the value of similar land in support of his opinion of the value of the land in question. 5 Nichols on Eminent Domain, 3d Ed., § 18.45[1], p. 182.”

In Doerenhoefer, supra, the court at p. 387, pointed out that although evidence of rental income derived from the land condemned may be admissible as bearing on its market value, evidence of the rental value of comparable property in the neighborhood is generally not admissible to prove the fair rental value of the property condemned.

In Parma, supra, the court, at p. 47, said: “ . . . [ojpinion evidence of the value of other land is not admissible to support testimony as to the value of the subject land, as such testimony does not have the independent evidentiary basis of an arms-length sale on comparable property in the vicinity. This is the rule in Missouri and we, of course, adhere to it.” (Emphasis in original.)

Other jurisdictions have taken a similar view and do not permit the introduction of evidence of the rental value of comparable land, or an opinion as to its market value based on the terms of its leasing arrangement, in determining the extent of damage to the condemned land. McCandless v. United States, 74 F.2d 596, 603 (CA 9 1935); Wenton v. Commonwealth, 335 Mass. 78, 138 N.E.2d 609 (1956); Huse v. Milwaukee County Expressway Commission, 16 Wis.2d 225, 114 N.W.2d 429 (1962); Arkansas State Highway Commission v. Sisson, 238 Ark. 720, 384 S.W.2d 264 (1964).

In Wenton, supra, the court said at p. 612: “This evidence of rental value of other land should have been excluded. While rental value of a parcel the market value of which is in issue may be received as some indication of the fair market value of that parcel, Amory v. Commonwealth, 321 Mass. 240, 258, 72 N.E.2d 549, 174 A.L.R. 370; Lembo v. Town of Framingham, 330 Mass. 461, 463, 115 N.E.2d 370, the rental value of similar premises, as distinguished from actual sales near in time, is not sufficiently relevant to warrant the extension of the field of controversy and fact finding which is entailed in its admission.”

In Huse, supra, the court held that the trial court properly rejected testimony as to the value of nearby property based upon a long-term lease of it. At p. 431 the court said:

“The authority closest in point on this issue is 5 Nichols, Eminent Domain, p. 219, sec. 19.21(1):

‘Generally, evidence of the rental value of similar neighboring property is not considered competent in proving the fair rental value of the property condemned. This rule of exclusion is based on the fact that such evidence would give rise to confusing collateral issues which may prove misleading unless further factual details are adduced relative to the degree of similarity between the properties, a study of the neighborhood, and an analysis of the leases involved.’ ”

In Arkansas State Highway Commission, supra, the court said at p. 266: “The issues in a condemnation case would be hopelessly obscured if the parties were allowed to dispute about the cost or the value of some other piece of property.” The court conceded that the value of comparable property, as established by an actual sale, forms a permissible basis for an expert witness’s opinion of the worth of the property in controversy but that, in the absence of a sale, the expert should not be allowed to give his opinion about the value of other similar land in the vicinity.

In 23 A.L.R.3d 724 there is an annotation on “Eminent Domain; Admissibility, on Issue of Value of Condemned Real Property, of Rental Value of Other Real Property.” There additional authorities, some to varying degrees in conflict with the foregoing holdings, may be found. See also 27 Am.Jur.2d Eminent Domain § 433, p. 342; 29A C.J.S. Eminent Domain § 273(3), p. 1201.

It follows that the trial court erred in admitting the challenged portions of the testimony of Wagner and Burlison.

Defendants argue that even if the court erred in the respect described, the error was not a prejudicial one because the verdict is within the range of other evidence, the admissibility of which has not been attacked. Defendants cite language from Jackson County v. Hesterberg, 519 S.W.2d 537, 546 (Mo.App.1975) to this effect: “It is clear that Missouri adopts the rule that if a jury verdict in a condemnation case is within the range of the evidence, it will not be disturbed on appeal.”

The quoted principle, taken in its proper context, is a valid one. Usually it is invoked to answer contentions that a verdict is inadequate or excessive. But defendants seek to stretch the principal beyond its proper scope. It does not mean that if the amount of the verdict is within the range of evidence, the admissibility of which is conceded, that fact alone constitutes a complete answer to claims of other trial errors, however grievous the latter may be.

Jury awards in condemnation cases, although lying within the range of admissible evidence, may be set aside by reason of an error which inhered in the trial if it is deemed prejudicial to the result. Kansas City & G. Ry. Co. v. Haake, 331 Mo. 429, 53 S.W.2d 891 (1932); St. Louis Housing Authority v. Gordon, 382 S.W.2d 451 (Mo.App.1964); State ex rel. State Highway Commission v. Baker, 505 S.W.2d 433 (Mo.App.1974); State ex rel. Kansas City Power & Light Co. v. Parma, 467 S.W.2d 43 (Mo.1971).

In Haake, supra, the supreme court held that the trial court erred in allowing the condemnor to show, over the landowners’ objection, “the assessed valuation for general taxation” of the condemned land. The condemnor’s evidence, other than that involving the assessed valuation, showed damages from $4,000 to $6,000. The landowners’ evidence showed the damages from $25,000 to $30,000. The verdict was for $7,500. The damages calculated in light of the assessed valuation was “considerably lower than that of any other witness.”

In rejecting the condemnor’s contention that the error was harmless, the court, at p. 894[5] said: “For plaintiff to so argue is inconsistent with the persistence shown at the trial court to have such evidence admitted. This evidence went to the jury as being, in effect, the evidence of the assessor on the disputed question of the value of the land. What weight this evidence had with the jury cannot be told . . . The effect was to drag down the total damages awarded. The fact that the damages awarded were greater than was justified by the assessed valuation does not prove that this evidence had no effect on the jury, as the same might be said as to the evidence of several other witnesses on the value. We are unable to say that this evidence was not prejudicial.” (Emphasis added.)

To similar effect is Gordon, supra, holding that the trial court committed prejudicial error in permitting testimony that the land was assessed for tax purposes at $3,200. The verdict was for $10,000. The evidence of the damage ranged from $6,900 to $14,500. The appellate court held that the trial court properly sustained a motion for new trial by reason of the error and rejected plaintiff’s contention that the jury “was not misled by the admission of this testimony into evidence” for the reason that the verdict was within the range of estimates not assailed.

In Baker, supra, the court held that the trial court erred in permitting the introduction of hearsay evidence. In rejecting the respondent’s contention that the error was harmless, the court, at p. 437 pointed out that the inadmissible evidence “went directly to the amount of defendants’ damages which, in this as in most eminent domain cases, is the principal and paramount issue Our appellate courts have declared repeatedly that incompetent evidence on a material issue is presumed to be prejudicial . . . unless clearly shown to be otherwise; that the burden of so showing such incompetent evidence was not prejudicial rests on respondent . . . ; and that the admission of such incompetent evidence over objection frequently is preju-dicially erroneous and constitutes reversible error even though it may be cumulative in that competent evidence to the same effect has been introduced.”

In Parma, supra, the verdict was within “the range of the evidence” but the judgment was reversed because the trial court committed error in admitting hearsay evidence concerning what was the highest and best use of the property. This evidence, said the court at p. 46, “went directly to the ultimate issue — the value of the property and the amount of defendants’ damages— and was vigorously contested.”

Here the challenged testimony played a major role in the trial. Defendant Sutter, in giving his opinion on the amount of damages ($157,000) relied principally upon the evidence concerning the “Standard Oil property.” Defendants’ witness Burlison used only the Standard Oil computations in arriving at his damage estimate of $157,000. The lowest damage estimate ($110,000) adduced by defendants came from witness Compton who did not use the Standard Oil evidence at all. One of defendants’ attorneys, during his final argument and over the objection of appellant, said: “All right, 115,870 square feet times $3.72 a square foot, which is what the Standard station is, if you wanted to you could find that figure, $431,036.” The verdict was in fact considerably closer to the low estimate of the defendants than it was to the high estimate of appellant.

As in Haake, supra, the persistence with which the inadmissible testimony was utilized by defendants’ counsel in the trial court undermines their appellate contention that the error was harmless.

Other points raised by appellant need not be considered because they involve matters which, if they arise at all on retrial, may not arise in the same manner.

The judgment is reversed and the cause remanded.

All concur.

      . In reversing McCandless on other grounds, the Supreme Court of the United States said: “We find no reason to differ with the holding of the court below as to the inadmissibility of evidence respecting the rent paid for other lands.” 298 U.S. 342, 348, 56 S.Ct. 764, 766, 80 L.Ed. 1205, 1209 (1936).

      . Under the Uniform Eminent Domain Code (1974), Article XI, § 1109, a valuation witness, as a basis for his opinion as to value, “may consider the terms and circumstances of any lease made in good faith that included all or part of the property being valued, or of comparable property ...” However, § 1113 provides, in pertinent part: “Notwithstanding the provisions of §§ 1103 to 1112, the following factors are not admissible as a basis for an opinion as to the value of property: . (4) an opinion as to the value of property other than the property being valued.”
      The comment under § 1113 includes this statement: “While paragraph (4) seeks to exclude the expansion of the trial into largely irrelevant and remote issues distant from that of the value of the subject property, it does not preclude admission of comparable sales data, nor prevent a valuation witness from testifying to adjustments made in such data in the course of forming his opinion.”

      . The quotation from Baker is liberally sprinkled with authorities.


author: FRANK CONLEY, Special Judge.

text:
    In the Matter of the ADOPTION OF Karen Lea FULLER, a minor. Dale Vernon WEBER and Jewell Dean Weber, Petitioners-Respondents, v. Sharon Elaine FULLER, Natural Mother-Appellant. In the Matter of the ADOPTION OF Keven Glenn FULLER, a minor. Norman H. SCHWEISS and Shirley Jean Schweiss, Petitioners-Respondents, v. Sharon Elaine FULLER, Natural Mother-Appellant.
    Nos. 9521, 9520.
    Missouri Court of Appeals, Springfield District.
    Dec. 3, 1976.

      Eugene E. Northern, Northern, Williams & Smallwood, Rolla, for appellant.
    Arthur B. Cohn, Waynesville, for respondents.
    Before BILLINGS, C. J., HOGAN and TITUS, JJ., and FRANK CONLEY, Special Judge.
   FRANK CONLEY, Special Judge.

Appellant, Sharon Elaine Fuller, is the natural mother of Keven Glenn Fuller and Karen Lea Fuller. The natural father was Bobby Joe Fuller who died May 23, 1971. Appellant and Bobby Fuller were divorced in June 1968 in Laclede County, Missouri. At that time, appellant was given the care and custody of the two minor children and Bobby Fuller was ordered to pay child support. However, no child support was ever paid.

After the divorce, appellant made her residence near Waynesville, Missouri, in a rented home. Appellant paid the rent and all utilities and bought food and clothing for the two minor children. The only income appellant had was her own salary. In order to have sufficient income to support herself and the two children it was necessary for her to work at regular employment with the Waynesville School System and part-time at the post exchange, Fort Leonard Wood, Missouri.

There was testimony at trial that immediately after the divorce, when the children were in the custody of the appellant, they were undernourished and hungry all the time. On at least one occasion, appellant took the children with her to a nightclub where appellant’s “boyfriend” worked and left the children alone in the car for several hours while appellant was inside. There was other testimony to the effect that the children were neglected while in the custody of their mother.

There was testimony that appellant told her ex-husband that if he would give her money to pay off the bills he had left her with, she would let him have the “damn kids”. More than one witness testified that appellant had talked to them about giving the children to appellant’s former husband in exchange for a sum of money. In October of 1969 the parents mutually consented to a modification of the child custody order, changing custody to the father. Appellant required as a condition of the modification that the children would live with the respondents. Appellant received $600 from her ex-husband at that time.

During the next twenty months, appellant saw the children three or four times including Christmases when their father brought them to appellant’s grandparents’ home. She also sent them birthday cards, but apparently made no other attempt to contact the children or to contact respondents about their welfare. In the year preceding the filing of the adoption petitions, appellant only saw the children one other time besides Christmas.

On May 23,1971, the father died. Shortly thereafter, appellant obtained an order from the Circuit Court in Laclede County placing custody of the children with her. The respondents then obtained a writ of prohibition from this court. Appellant then sought a writ of habeas corpus. The record does not disclose the disposition of that action.

On June 9, 1971, respondents Dale and Jewell Weber filed their petition for adoption and temporary legal custody of Karen Lea Fuller in the Circuit Court of Pulaski County where the child resided. On June 11, 1971, respondents Norman H. and Shirley Jean Schweiss filed their petition for temporary custody and adoption of Keven Glenn Fuller in the Circuit Court of Phelps County where the child resided. Both petitions alleged “said natural mother has abandoned the child for a period of over one year before the filing of this petition.”

On July 1, 1971, appellant entered her “Special Entry of Appearance on Motion to Dismiss for Want of Jurisdiction Over the Person and Subject Matter”, in response to the petitions. No further action was taken as to either proceeding until October 8, 1971. On that date, while the motion to dismiss was pending and without notice to the appellant, the Circuit Court of Pulaski County entered a “Temporary Custody and Control Order” whereby custody of Karen Lea Fuller was transferred to the respondents Weber. On the same day “temporary legal control and custody” of Keven Glenn Fuller was given to the respondents Schweiss in the same manner by the Circuit Court of Phelps County.

On March 13,1973, appellant filed answer in the Keven Glenn Fuller case and the cases were consolidated and trial was held in Phelps County that same day. No answer was ever filed in the Karen Lea Fuller case.

The court entered its decree of adoption in each case on March 13, 1973. Both decrees recited that the court found that “the natural mother of said child wilfully abandoned [the child] for a period of at least one year immediately prior to the date of filing said petition for adoption”. Timely motions for new trial were filed and overruled and timely notices of appeal were filed by appellant.

Before considering appellant’s other assignments of error, it should be noted that no answer was ever filed in the Karen Lea Fuller case. “While the statutory provision requiring an answer is mandatory, the enforcement of the provision is waived, unless the opposing party invokes the enforcement by timely and proper action.” Bailey v. Bailey, 317 S.W.2d 630, 632 (Mo.App.1958). In that case the court also said, “It has been held that although no answer was filed in the trial court, if it appears from the record that the cause was tried as if an answer had been filed, on appeal the answer should be considered filed.”

As was stated in In re Adoption of Rule, 435 S.W.2d 35, 39 (Mo.App.1968), “It is our duty to review the record upon both the law and the evidence as in actions of an equitable nature and to reach our own conclusions, after giving due deference to the trial court on questions of credibility”. Appellate courts should exercise the power to set aside a decree or judgment with caution and a firm belief that the decree or judgment is wrong. Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976).

The appellant presents two basic contentions: 1) that respondents did not have legal custody for the requisite nine months, and 2) that the appellant did not wilfully abandon the children.

As to the first point appellant challenges the validity of the orders transferring temporary legal custody of these children to respondents because it was done without notice to appellant, without a hearing and without appointment of a guardian ad li-tem.

We must agree with appellant’s contention that this order was invalid. In the ease of In re G, 389 S.W.2d 63, 68[10] (Mo.App.1965), this court said, “There is a presumption that the natural parent is fit and qualified to have the custody of his or her child. And the right of the parent to such is not to be interfered with unless it clearly appears that such parent has forfeited his or her right”. Although this language was used in connection with the reversal of an adoption decree, the principle applies to temporary custody orders as well. A denial of anything so fundamental as a parent’s right to custody of her child cannot be made in so perfunctory a manner as was done here, and justified by the fact that the order was only temporary and the parent has a chance to get custody back several months later if the adoption is denied. If the court does later find that the parent is a fit parent and denies the adoption, how does it restore those months with the child that the parent has been denied? Although the evidence need not be as clear and convincing as that necessary to support an adoption, we think that some consideration of whether the parent has forfeited her right to custody must be made.

In Ex Parte Ferone, 267 S.W.2d 695, 700[1, 2] (Mo.App.1954), the court said of a child whose mother had brought a habeas corpus action to regain her custody:

“Her welfare is the superior objective in the matter of her custody. To that all other considerations must yield. However, it does not follow that the right of a parent to the custody of his or her child is to be ignored in such a proceeding. All else being equal, such right would be determinative as between such parent and all others. It is only when the exercise of such primary right by the parent is shown not to be in the best interest of the child, by reason of manifest unfitness or for other good and sufficient reasons, that a parent should not have the custody of his or her child.”

A long history of Missouri cases involving the custody of children has held that there is a presumption that it is in the best interest of a child to be in the custody of his parents. State ex rel. Crockett v. Ellison, 271 Mo. 416, 196 S.W. 1140 (banc 1917), and cases cited therein; Morris v. McGregor, 269 S.W.2d 171, 175[3] (Mo.App.1954). The burden is on those who wish to deny the parents custody to rebut that presumption. State v. Pogue, 282 S.W.2d 582, 588[6—9] (Mo.App.1955).

The order in this case was made before there was any evidence before the court except the home study report. This report dealt only with the fitness of the proposed adoptive parents and their home. We do not think the form of the action distinguishes this case from those previously cited. The rights of the parents and children to be together in the interim period before a decision is made on the petition for adoption cannot be adequately safeguarded by the hearing on the adoption alone. For that reason we hold the temporary orders invalid. However, this does not necessitate a reversal of the adoption decree.

The adoption statute, § 453.080, RSMo 1969, V.A.M.S., requires that the child have been in the lawful and actual custody of petitioners for a period of at least nine months prior to the entry of the adoption decree. We think that the facts previously recited show that petitioners have complied with this requirement. The children were in fact placed with respondents as a part of the modification of the original divorce decree, and while that decree provided for custody to be placed with appellant’s ex-husband, it was clearly understood by appellant that respondents would in fact have the actual custody. Was this custody lawful as the statute requires?

A court order transferring temporary legal custody to petitioners in adoption proceedings is not necessary for them to have lawful custody. In re Adoption of K., 417 S.W.2d 702, 708 (Mo.App.1967). Therefore, respondents did have lawful and actual custody for the nine-month period prior to the entry of the decree.

In these cases appellant does not question the fitness of respondents as prospective adoptive parents. Rather, she claims that absent her consent, the trial court was not correct in finding that there had been a “wilful abandonment” for one year prior to the filing of the petition.

The review by this court is not directed toward a determination of who would in fact be the “best” custodian or parent for these minor children. Rather, this action seeks to resolve whether the parental rights of a natural parent should be extinguished permanently.

As was forcefully set forth in In re Adoption of J, 396 S.W.2d 257, 261[1] (Mo.App.1965):

“It is frequently said that the relationship of parent and child is one of the highest of natural rights with which the state will not interfere simply to better the moral and temporal welfare of the child, as against a parent who has not forfeited such right. And it is generally held that statutes which permit the termination of this right must be strictly construed against deprivation of parental rights . . .

As was also stated in In Re Taylor, 419 S.W.2d 473, 475[1] (Mo.App.1967):

“The action for termination of parental rights is designed to extinguish forever the pre-existing legal rights of the parents with respect to their child and is the subject of specialized legislation. The power of the juvenile court to effectuate such a result is in its entirety the creation of the statute; it does not otherwise exist.”

The General Assembly and the courts have recognized that both by law and by nature, parents have their primary right as against the world to their children. It is an inherent natural right. The legislature did not intend by statute to provide that the relationship of parent and child might be lightly cast aside for any paternalistic sociological theory. Rather, § 453.-040(4) sets out only grave and compelling grounds for the action:

“A parent who has for a period of at least one year immediately prior to the filing of the petition for adoption, either willfully abandoned the child or willfully neglected to provide him with proper care and maintenance.”

Abandonment is a matter of intent, and conduct either before or after the statutory period may be considered to determine the purpose and intent of the parent. In re Adoption of K, supra, 417 S.W.2d at 709[13]; In re Adoption of J, supra, 396 S.W.2d at 261-262[5-7]. Appellant’s actual intent in this regard is best gleaned from the actual trial testimony.

Florence Vaughn, a friend of appellant’s, stated that appellant told her that she intended to give the children to her ex-husband for a sum of money. Significantly, at the time the modification of the custody order occurred, appellant received $600. Likewise, appellant told Vaughn that “A1 Pier boyfriend] meant everything to her; her children meant nothing.”

Martha Louise McGee, who for a period of time permitted appellant and her children to live with her, testified that she heard appellant say to her former husband: “If you give me enough money to pay my bills off, the bills that you left with me when we divorced . . . then I’ll give you the damn kids.”

From October 1969, when the children were placed in the actual custody of respondents, until their father’s death in May 1971 appellant made no effort to regain custody of the children but was quite content to discharge her obligation as a mother by a sporadic visit during the Christmas holidays. These visits were primarily as a result of the children being at the appellant’s grandparents’ home and were not visits initiated by appellant. The responsibility for the rearing of these two children, ages 6 and 5 in 1969, fell squarely and completely upon respondents. At the time these children started school, a time of emotional adjustment for many youngsters, it was the respondents and not appellant who provided the understanding and security so often necessary for a healthy adjustment in school.

As noted in In re Adoption of K, supra, 417 S.W.2d at 711[14], in discussing willful abandonment, “The terms must be and are somewhat elastic, and the question whether there has been a willful abandonment or neglect in any given case is essentially a factual question.”

While the record discloses that after her former husband’s death appellant sought to regain custody of the children, it is significant that appellant was fully aware that her former husband, while holding “legal custody”, did not have actual custody. Her action in seeking to regain custody would have been more believable if her former husband had in fact had the actual custody. It is difficult to escape the conclusion that appellant’s conduct in seeking to modify the divorce decree or to obtain a writ of habeas corpus was in fact an attempt to thwart respondents in their efforts to adopt these children. Appellant displayed no interest whatsoever in these children until the death of their father. While living either in the Springfield or St. Louis area she made little or no effort to visit with them or to even communicate by letter, and the infrequent visits were principally the result of action by others.

In our judgment the appellant has wilfully abandoned the children within the meaning of § 453.040(4), and her consent of these adoptions is not required. Therefore the adoption decrees in both cases are affirmed.

All concur.