author: HENLEY, Judge. BARDGETT, Judge MORGAN, Judge

text:
    STATE of Missouri ex inf. John C. DANFORTH, Attorney General, Relator, v. Norman L. MERRELL et al., Members, State Fiscal Affairs Committee, and J. Neil Nielsen, Commissioner of Administration, Respondents.
    No. 59075.
    Supreme Court of Missouri, En Banc.
    Nov. 25, 1975.

      John C. Danforth, Atty. Gen. of Mo., Walter Nowotny and C. B. Burns, Jr., Asst. Attys. Gen., for relator.
    Cullen Coil, Carson, Monaco, Coil & Riley, P.C., Jefferson City, for respondents Mer-rell, and others.
    Charles E. Valier, Jefferson City, for respondent Nielson.
   HENLEY, Judge.

This is an original proceeding in quo war-ranto by the State on the information of the Attorney General (informant). The primary question presented is whether respondents have authority to change, alter or amend the purpose for which money appropriated by the general assembly may be used. We hold they do not.

The background out of which this case arose is as follows. In August, 1972, the people adopted an amendment of Article IV of the constitution of Missouri, providing, in general, for the reorganization of the executive department of state government into not more than 14 departments, an office of administration, and the six existing state elective offices. Section 28 of the amended Article is as follows:

“No money shall be withdrawn from the state treasury except by warrant drawn in accordance with an appropriation made by law, nor shall any obligation for that payment of money be incurred unless the commissioner of administration certifies it for payment and certifies that the expenditure is within the purpose as directed by the general assembly of the appropriation and that there is in the appropriation an unencumbered balance sufficient to pay it. At the time of issuance each such certification shall be entered on the general accounting books as an encumbrance on the appropriation. No appropriation shall confer authority to incur an obligation after the termination of the fiscal period to which it relates, and every appropriation shall expire six months after the end of the period for which made.” The 77th General Assembly, at the First Extraordinary Session of its First Regular Session, implemented the 1972 amendment of Article IV by enacting what is known as the “Omnibus State Reorganization Act of 1974” (hereinafter the Act or Reorganization Act). It became effective May 1, 1974. Section 1.6(2) of the Act is, in part, as follows:

“The purpose of appropriations made to any department in the executive branch of government shall not be altered without the prior approval of the fiscal affairs committee and the concurrence of the commissioner of administration.”

Thereafter, the general assembly enacted laws appropriating money to the several . departments (and to elective offices) of the executive branch for specified purposes. Some sections of these laws contained these words:

“The purpose of this appropriation shall not be altered without the prior approval of the Fiscal Affairs Committee and the concurrence of the Commissioner of Administration and any monies not spent specifically as directed shall lapse.”

In general, the appropriations were to a department for a named division thereof for three separate purposes: 1. personal service; 2. equipment purchase and repair; and 3. operation. Some of the appropriation laws divided the third purpose, “operation,” into more specific purposes (or detailed classes), such as: (1) “travel and transportation, office supplies and equipment, communications, data processing expenses, printing and publication, institutional services, and other expenses”; (2) “building and grounds expense”; (3) “professional and technical services”; (4) “data processing and professional and technical services”; (5) “institutional services, other expenses, and building and grounds expenses”; and others.

After enactment of appropriation laws the respondents, Norman L. Merrell, and others, as members of the committee on state fiscal affairs (hereinafter the Committee), determined (in several instances) that it was necessary to change the purpose of particular appropriations and authorized or directed the respondent, commissioner of administration (hereinafter the Commissioner), to make the change by transferring a specified amount of money from one purpose to another. An example of this type of transaction is a letter dated March 20, 1975, from the Committee to the Commissioner, the content of which is as follows:

“(1) ‘Mr. Chairman, I move that in accordance with the provisions of Section 1, Subsection 6, of Senate Bill 1, as enacted in the First Extraordinary Session of the 77th General Assembly, and Article 4, Section 28 of the Constitution of the State of Missouri, this Committee authorizes the Commissioner of Administration to change the purpose of Section 3.010 of House Bill 1003, as enacted in the Second Regular Session of the 77th General Assembly as follows:

(a) $12,000 General Revenue may be transferred from class seven operation to class nine operation.’

“(2) ‘Mr. Chairman, I move that in accordance with the provisions of Section 1, Subsection 6, of Senate Bill 1, as enacted in the First Extraordinary Session of the 77th General Assembly, and Article 4, Section 28 of the Constitution of the State of Missouri, this Committee authorizes the Commissioner of Administration to change the purpose of Section 4.405 of House Bill 1004, as enacted in the Second Regular Session of the 77th General Assembly as follows:

(a) $115,000 General Revenue may be transferred from class four operation to class five operation.’

“(3) ‘Mr. Chairman, I move that in accordance with the provisions of Section 1, Subsection 6, of Senate Bill 1, as enacted in the First Extraordinary Session of the 77th General Assembly, and Article 4, Section 28 of the Constitution of the State of Missouri, this Committee authorizes the Commissioner of Administration to change the purpose of Section 4.145 of House Bill 1004, as enacted in the Second Regular Session of the 77th General Assembly as follows:

(a) $22,357 General Revenue may be transferred from class seven operation to class two equipment purchase and repair.’

“(4) ‘Mr. Chairman, I move that in accordance with the provisions of Section 1, Subsection 6, of Senate Bill 1, as enacted in the First Extraordinary Session of the 77th General Assembly, and Article 4, Section 28 of the Constitution of the State of Missouri, this Committee authorizes the Commissioner of Administration to change the purpose of Section 6.360 of House Bill 1006, as enacted in the Second Regular Session of the 77th General Assembly as follows:

(a) $113,381 General Revenue may be transferred from class four operation to class five operation.’

“(5) ‘Mr. Chairman, I move that in accordance with the provisions of Section 1, Subsection 6, of Senate Bill 1, as enacted in the First Extraordinary Session of the 77th General Assembly, and Article 4, Section 28 of the Constitution of the State of Missouri, this Committee authorizes the Commissioner of Administration to change the purpose of Section 9.500 of House Bill 1009, as enacted in the Second Regular Session of the 77th General Assembly as follows:

(a) $60,000 Revenue Sharing Trust Fund appropriated in Section 9.500 for Sewer Line on West Campus may be used for roof repairs, parking lots and service roads, and air conditioning systems repair.’

We are forwarding copies of the above to the agencies involved.” An example of another type of transaction to effect such a change is a letter dated July 19,1974, from the Committee direct to the director of the department of social services, with a copy to the Commissioner, which letter is, in pertinent part, as follows:

“Please be advised that the Committee on State Fiscal Affairs in its July 16, 1974 meeting agreed that you should make the necessary shift in the Federal Soldiers Home, Operation Appropriation, in order that the $128,000 be placed in the Building and Grounds Expense account. This shift is to be made in lieu of a request for an emergency or supplemental appropriation.”

The Commissioner, in his return to our show cause order and in his brief, takes the position and asserts that he has, under authority and compulsion of an opinion of the attorney general and State ex rel. State Board of Mediation v. Pigg, 244 S.W.2d 75, 78[3—4] (Mo.banc 1951), refused to concur in the Committee’s direction to alter the purpose of appropriations, but will concur if the court determines that he has authority to do so.

It is clear from the pleadings that the Committee claims that it has the authority, with the concurrence of the Commissioner, to alter the purpose of appropriations made to a department of the executive branch by transferring money “earmarked” (appropriated) for a specified purpose from that purpose to another within a department. The Committee asserts that the general assembly had the power to and did grant it this authority by enactment of § 1.6(2) of the Reorganization Act, a general law enacted in accordance with the legislative process (Mo.Const. Art. Ill, §§ 21-33); that this law delegates to the Committee legislative power to make such transfers. We note that the Committee does not claim authority to transfer appropriated money from one department to another within the executive branch.

Section 23 of Article IV, the constitution, fixes the state’s fiscal year, requires the general assembly to make appropriations therefor, and directs that “[ejvery appropriation law shall distinctly specify the amount and purpose of the appropriation * * * If

One purpose of this section is to provide the members of the legislative body with specific information from which each may determine whether he will approve or disapprove the amount and purpose of a proposed expenditure.

Section 36 of Article III, limits the legislative power to withdraw money from the state treasury in these words: “the general assembly shall have no power ⅜ * * to permit the withdrawal of money from the treasury except in pursuance of appropriations made by law.”

A state legislative body has the power to enact any law not prohibited by the constitution, and the state constitution, unlike the federal constitution which is a grant of powers, is a limitation on legislative power. State ex inf. Danforth ex rel. Farmers Electric Cooperative v. State Environmental Improvement Authority, 518 S.W.2d 68, 72[1] (Mo.banc 1975); Three Rivers Junior College District v. Statler, 421 S.W.2d 235, 237—238[2, 3] (Mo.banc 1967). By § 36 the people prohibit the general assembly from enacting any law which would, directly or indirectly, permit the withdrawal of money from the treasury for any purpose other than one specified in an appropriation law. And this prohibition includes the enactment of any law which would delegate to individual members of the general assembly authority to do, with respect to appropriations, what the general assembly itself may do only by an Act duly passed and approved.

Section 28 of Article IV, quoted above, completes the general constitutional scheme by which money may be withdrawn from the state treasury. That section prescribes the method and delimits the authority for any withdrawal in these words: “by warrant drawn in accordance with an appropriation made by law * * *.” That section also fixes and limits the conditions under which the obligation of state money may be incurred. It does so in these words: “nor shall any obligation for [the] payment of money be incurred unless the commissioner of administration certifies it for payment and certifies that the expenditure is within the purpose ⅜ ⅜ * of the appropriation and that there is in the appropriation an unencumbered balance sufficient to pay it.”

These sections of the constitution are unambiguous. They require no construction. Their meaning is clear: money may not be withdrawn from the state treasury for any purpose other than that specified in an appropriation law. Any appropriation law which fails to specify distinctly the purpose of an appropriation would violate § 23, supra. Any law which permits the withdrawal of state money for any purpose other than that specified in an appropriation law would violate § 36, supra. Any certification by the Commissioner authorizing the incurring of an obligation and the payment of state money for any purpose other than that specified in an appropriation law would violate § 28, supra. Any withdrawal of money from the state treasury by a warrant drawn for a purpose other than that specified in an appropriation law would also violate § 28, supra.

The presumption is that in enacting the appropriation laws referred to in the letters of the Committee dated July 19, 1974, and March 20, 1975, the general assembly complied with the provisions of § 23, supra, requiring that the “ * * * law distinctly specify the amount and purpose of the appropriation * * *The parties do not contend the general assembly did not do so. We hold that it did so specify. In appropriating money to a department of the executive branch for use (for example) by a named division of the department with a designation of separate amounts of money for (1) personal service; (2) equipment purchase and repair; and (3) operation, the general assembly has specified three separate general purposes for which each amount specified is to be used. Further specificity of purpose results (for example) when a general purpose (such as “operation”) expressed in an appropriation law is divided into two or more parts or subpurposes with a specified amount of money for that subpurpose.

The portion of § 1.6(2) of the Reorganization Act which authorizes the Committee, with the concurrence of the Commissioner, to alter the purpose of an appropriation is, within the meaning of Article III, § 36, a law by which the general assembly has permitted the withdrawal of money from the treasury not in pursuance of an appropriation made by law. The Act permits the withdrawal of state money contrary to “an appropriation made by law” in that it authorizes the transfer of funds appropriated for a specified purpose to another purpose. For these reasons, that portion of § 1.6(2) of the Act, and similar provisions in any appropriation law, violate Article III, § 36, supra. Hence, the general assembly was without power to confer upon the Committee and the Commissioner the authority the Committee claims, and any exercise of the claimed authority would be a usurpation of power neither of them has.

Informant also charges that the Committee, with the concurrence of the supreme court, claims to have authority to allocate, and has allocated, money appropriated to that court in § 4.296 of House Bill 1004 of the 77th General Assembly (second regular session); that any action or attempted action by the Committee to allocate such funds under authority of § 4.296 violates Article IV, § 27, and other provisions, of the constitution. The money referred to is money appropriated to the supreme court as a contingent fund to be used for the payment of “Personal Service and related Operational expense in the event of unusual case workload in the * * * Circuits necessitating additional funds for carrying out the provisions of * * * [Chapter 600, RSMo Supp.1973].”

The Committee, in its return, denies that it claims the authority to allocate money appropriated in § 4.296, supra, and, “ * * pleading hypothetically, * * * state[s] that if the provision as to ‘allocation’ of said * * * funds is not simply an amplification of the purpose of the appropriation, then * * * the language pertaining to ‘allocation’ is surplusage and does not affect the validity * * * of the appropriation.”

During oral argument before the court, the Informant and the Committee agreed: (1) that the Committee does not have or claim the authority to “pass on” (allocate) the money appropriated in § 4.296; (2) that the money was appropriated to the court to be used, if necessary, to meet the contingency of any unusual case workload arising in the circuit courts requiring funds, in addition to those otherwise appropriated, to accomplish the purposes of Chapter 600, supra. In other words, they agree that the court has the sole authority to administer these funds under the conditions and for the purposes specified. In these circumstances, there is no justiciable issue for decision as to “allocation” of these funds, and the court will authorize the use of the funds when, and if, needed for the purposes specified.

The “allocation” referred to in § 4.296 is not, we note, the same as that step in the control of the expenditure of public funds referred to in Article IV, § 27, of the constitution. That step in the process of fiscal control has been accomplished by the chief executive before the court determines the need and authorizes the use (allocation) of any part of the contingent fund.

A change in procedure was initiated by the court in this case applicable to informations in the nature of quo warranto filed by the attorney general, ex officio: the show cause order directed to respondents stated that after their respective returns were filed, the court would (contrary to prior practice) then consider the pleadings and at that stage of the ease determine, in its discretion, what further proceedings, if any, would be required.

The rule has been, and continues to be, that the attorney general in his official capacity may file an information in the nature of quo warranto, without securing leave to file, and process (a show cause order) will issue as a matter of course. State v. St. Louis Perpetual Marine Fire and Life Insurance Co., 8 Mo. 330, 331[1, 2] (1843); State ex rel. Walker v. Equitable Loan and Investment Co. of Sedalia, 142 Mo. 325, 41 S.W. 916, 918[1] (1897). Cf. State ex rel. Young v. Buskirk, 43 Mo. 111 (1868).

In State ex rel. McAllister v. Cupples Station Light, Heat & Power Co., 283 Mo. 115, 223 S.W. 75[7] (banc 1920) the court said, (1. c. 84): “It has always been the practice in this state to issue the writ of quo warranto upon the application of the Attorney General, as a matter of course and without any investigation of the merits of the ease * * * although in many other jurisdictions the court makes an investigation of the facts and finally exercises its discretion at the time of the application for the writ. * * * In this state, however, the discretion of the court is not exercised until final hearing.” (Emphasis supplied.) From this the practice or rule developed that the court would not exercise its discretion to control the proceeding in the interim period between issuance of process and final judgment. What is said in this regard in State ex rel. McAllister v. Cupples Station, etc., supra, and other cases, will no longer be followed.

The court will hereafter, as in this case, control the proceedings by the exercise of its discretion at any stage thereof after the issuance of its show cause order.

It is ordered that respondents cease and desist from altering the purpose of appropriations made by law.

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

BARDGETT, J., concurs in separate concurring opinion filed.

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

BARDGETT, Judge

(concurring).

The dissenting opinion of Morgan, J., casts the issue in this case to be one of adjudicating the meaning of the word “purpose” as used in Art. IV, sec. 23, Mo.Const., and determining whether the appropriation laws involved in this case satisfied that section of our constitution. I do not believe that Is the issue at all and for this reason I file this concurring opinion.

No one contends that the appropriation laws here involved failed to meet the requirements of Art. IV, sec. 23. To the contrary, the case is premised on the assumption, which I believe to be a valid one, that these appropriation bills satisfy the requirements of Art. IV, sec. 23, as to the “purpose” clause.

The basic issue here is whether or not the general assembly can constitutionally authorize a legislative committee and a representative of the executive branch of government, the commissioner of administration, to amend an appropriation law by switching money from one legislatively designated purpose to a different legislatively designated purpose.

In State ex rel. Cason v. Bond, 495 S.W.2d 385 (Mo. banc 1973), the court held the governor could not constitutionally change the purpose clause of an appropriation bill under his veto powers.

The case today holds that the general assembly cannot constitutionally delegate to a committee or to the executive department or to both of them the power to amend a law.

MORGAN, Judge

(dissenting).

I respectfully dissent because (1) the principal opinion proscribes a needed and commendable effort to improve the efficiency of governmental activities insofar as they involve fiscal affairs and the expenditure of tax money, and (2) my belief that there is no constitutional prohibition against reaching such a worthy objective.

As to point one, a simple example will suffice. Assume that an agency or department has been appropriated $1,000. under “Repairs and Replacements” and $1,000. under “Operations,” presumably based on the “estimated” needs of the particular governmental unit made nearly eighteen months before an anticipated expenditure. If the date of the actual enactment of the appropriation is used, the time gap remains approximately one year. In that year the $1,000. for “Repairs and Replacements” has been used and an unforeseen emergency arises for a new typewriter. Because of changed circumstances, the $1,000. earmarked for “Operations” may be intact. If I understand the principal opinion, it would prohibit the purchase of the needed typewriter until the next fiscal year, whereas the approach taken by the General Assembly would allow for meeting immediately that changed need of the agency or department — all within the general appropriation limits assigned to that unit of government. Undoubtedly, the fundamental objective of the expenditure of tax money by appropriation is to make it possible for governmental units to perform the duties incumbent upon them in the most effective manner and thereby best serve the public.

As to point two, the basic question is whether or not the constitution of this state prohibits the attainment of such a worthy objective. I do not believe it does. The extent to which appropriations must be itemized by the General Assembly is not prescribed in the constitution. Section 23 of Article 4 thereof provides, in part: “Every appropriation law shall distinctly specify the amount and purpose of the appropriation . . . ” Other constitutional provisions, noted in the principal opinion, only serve to exact compliance with Section 23 and do not add or detract from the dictates thereof. Herein, we are concerned only with the meaning of the word “purpose” in that section. Does it require that all appropriations specify the amount allotted for paper clips to fulfill the requirement that there be a designated purpose? The principal opinion, without answering the question posed, seems to assume specificity is called for somewhere between the somewhat absurd paper-clip example given and what I believe is dictated by the constitution. By necessity or other reasons, governmental activities are performed by numerous units of government, and it is my opinion that a “one figure” appropriation to such a unit, agency or department that it may function meets the constitutional command in question. The amount and purpose would both be present therein. That the General Assembly may for reasons of accounting and planning find it helpful to make some breakdown into categories in order to resolve the “total” needed in an appropriation does not change or broaden the requirements of Section 23. The dictates thereof having been met absent such details, adjustments therein are not proscribed.

Admittedly, as detailed in the principal opinion, the General Assembly created a procedure for making adjustments and transfers within a particular budget by use of the unfortunate choice of words: change of purpose. The same is not only inaccurate and misleading but possibly created the present litigation. Nevertheless, the procedure is constitutionally acceptable and I would so declare. Those interested may see In Re Opinion Of The Justices, 302 Mass. 605, 19 N.E.2d 807 (1939).

      . Section 12, and other sections, of the amended Article. See Laws of Missouri, 1972, page 1049.

      . The “fiscal affairs committee” referred to in the quotation is the committee on state fiscal affairs, a permanent joint committee of the general assembly created by § 21.470 (Laws of Missouri, 1969, p. 87) with duties prescribed by § 21.500 (Laws of Missouri, 1971, p. 115).

      . More accurately described as Conference Committee Substitute for House Bill No. 1004.

      . This Chapter provides for the appointment and the payment of public defenders or other counsel to represent indigent persons charged or detained in connection with a felony. Sections 600.045 and 600.060.


source: Caselaw Access Project

author: HOLMAN, Judge.

license: Public Domain

text:
    Jeannette Kay PITTOCK, Plaintiff-Appellant, v. John William GARDNER, Executor of the Estate of Mary Loomis Gibson, Deceased, Defendant-Respondent.
    No. 59128.
    Supreme Court of Missouri, En Banc.
    Dec. 8, 1975.

      Glenn A. Burkart, Mann, Walter, Bur-kart, Weathers & Walter, Wear & Wear, Springfield, for plaintiff-appellant.
    Karl Blanchard, Blanchard, VanFleet, Robertson & Dermott, Joplin, Lowther, Cas-sity, Ferguson & Freeman, Springfield, for defendant-respondent.
   HOLMAN, Judge.

This action was instituted by plaintiff and her infant son to recover damages for personal injuries resulting from an automobile collision. Defendant, executor of the estate of Mary Loomis Gibson, filed a counterclaim against Mrs. Pittock seeking damages for decedent’s alleged wrongful death. See Section 537.080(3). The jury found for defendant on plaintiffs’ claims and also returned a verdict for defendant in the sum of $3,000 on the counterclaim. No appeal was taken by the son but Mrs. Pittock (hereinafter referred to as “plaintiff”) appealed to the Springfield District of the Court of Appeals.

On appeal plaintiff contends that the trial court erred in giving Instructions 6, 8 and 12. The appeals court concluded that No. 6 was not prejudicially erroneous and that it was unnecessary to consider 8 and 12 because they related to the counterclaim. Sua sponte the court held that the counterclaim did not state a claim for relief and that the evidence would not support a wrongful death claim. The judgment was reversed and the cause remanded with certain directions which need not be recited here. Upon application of plaintiff we ordered the case transferred and will decide it here the same as on original appeal. Art. V, Sec. 10, Mo.Const., V.A.M.S. We granted transfer because we were concerned about the effect of the 1973 revision of MAI 17.13 upon the contents of contributory negligence Instruction No. 6. We affirm the judgment for defendant on plaintiff’s claim and reverse the judgment on the counterclaim.

It was undisputed that the northbound Ford driven by plaintiff collided head-on with the southbound Rambler operated by defendant’s decedent when the Ford was on the west half or wrong side of the dual-laned highway. Plaintiff testified that as the two vehicles were approaching, the Rambler was in the northbound lane; that plaintiff, with the Ford “under control at all times,” drove onto the left or west half of the roadway to avoid a collision, but that decedent then drove the Rambler to its right side of the highway, thereby causing the casualty to occur on plaintiff’s wrong side of the road. To the contrary, defendant’s theory was that decedent did not drive the Rambler on the wrong side of the road at any time. Mrs. Gibson, the driver of the Rambler, was killed as were the two other occupants of her car.. The six occupants of plaintiff’s car were all injured, but none were killed.

Plaintiff’s case was submitted by Instruction No. 4 which reads as follows:

“Your verdict must be for plaintiff, Jeannette Kay Pittock, on said plaintiff’s claim for damages if you believe:
“First, Mary Loomis Gibson drove on the wrong side of the road, and
“Second, Mary Loomis Gibson was thereby negligent, and
“Third, as a direct result of such negligence Jeannette Kay Pittock sustained damage, unless you believe Jeannette Kay Pittock is not entitled to recover by reason of Instruction Number 6.
“(Not in MAI, tendered by plaintiff, Jeannette Kay Pittock.)”

The submission of her son’s claim was in the same language except for the reference to Instruction No. 6.

The instruction which is the basis of plaintiff’s principal complaint, No. 6, reads as follows:

“Your verdict must be for the defendant on plaintiff Jeanette Pittock’s claim for damages, whether or not Mary Loomis Gibson was negligent, if you believe:
“First, plaintiff Jeanette Pittock drove on the wrong side of the road, and
“Second, plaintiff Jeanette Pittock was thereby negligent, and
“Third, such negligence of plaintiff Jeanette Pittock directly caused or directly contributed to cause any injuries and damages plaintiff Jeanette Pittock may have sustained.
“(M.A.I. 32.01 Modified, Submitted by Defendant)”

Plaintiff says that the court erred in giving No. 6 because it was not applicable and that there was an applicable approved instruction “in the book” which should have been used. She points to the fact that Rule 70.01(b, c) provides that if MAI contains an applicable instruction it “shall be given to the exclusion of any other on the same subject” and “[t]he giving of an instruction in violation of the provisions of this Rule shall constitute error, its prejudicial effect to be judicially determined.”

It is plaintiff’s contention that MAI 17.13 should have been given. Prior to July 1, 1973, that instruction, which was designated for wrong side of the road submissions, read “Defendant drove on the wrong side of the road.” The notes on use thereunder stated: “This is an optional submission of negligence which may be used as paragraph First of Verdict Directing 17.01 or as one of the alternate submissions in paragraph First of Verdict Directing 17.02. It may also be used as a submission in Contributory Negligence 32.01 and Wrongful Death 20.01 and 20.02.” The Committee’s Comment provided that: “. . . it should be remembered that mere skidding ‘is not negligence and does not give rise to an inference of negligence.’ ” The statement of law last quoted was changed by the decision in Friederich v. Chamberlain, 458 S.W.2d 360, at page 366 (Mo.1970) where we stated that: “. . .if the skidding vehicle is on the wrong side of the road when the collision occurs, an inference of negligence is created. A prima facie case is made.”

Because of Friederich and certain other decisions this court and its committee on jury instructions considered it advisable to revise 17.13 which was accomplished and approved, effective July 1, 1973, and published in the 1973 pocket parts of MAI. That revised instruction and the comment thereunder reads as follows: “Your verdict must be for plaintiff if you believe:

“First, defendant’s automobile was on the wrong side of the road at the time of the collision; and
“Second, the defendant was thereby negligent; and
“Third, as a direct result of such negligence plaintiff sustained damage.
“Committee’s Comment [Supplemental]
“1. This is the instruction to use in wrong-side-of-the-road eases — not limited to cases where the car got there by skidding.
“2. The law regarding the effect of skidding evidence in the case involving a motor vehicle accident on the wrong side of the road has been substantially revised by Friederich v. Chamberlain, 458 S.W.2d 360 (Mo.1970). The committee’s comment on page 155 is modified; the skidding doctrine as heretofore promulgated is no longer the law in Missouri and in the event that there is proof that a vehicle has skidded onto the wrong side of the road when the collision takes place, an inference of negligence is created and a prima facie case is made. For this reason the foregoing modification is required in a ‘skidding’ case.” (The instant case was tried in November, 1973).

Plaintiff points to Comment 1 and says that it means that this instruction must be used in all wrong-side-of-the-road submissions. Defendant, in answer to that contention, says that he used MAI 32.01 which is approved for use in contributory negligence submissions. He also points out that Comment 1 under 17.13 does not contain the word “all” and that the portion of Comment 2 which says that the instruction is “required in a skidding case” would tend to indicate that it is not mandatory in all cases.

We must first settle the controversy outlined in the preceding paragraph. It was the intention of the instruction committee and this court to provide that the revised instruction should be used in all wrong-side-of-the-road cases in which it would be applicable. We so rule because we think Committee Comment 1 plainly so provides. Moreover, we have also examined correspondence between the chief justice and the chairman of the committee and find such an intent stated therein.

Obviously this instruction would not be properly applicable in every wrong-side-of-the-road case. This is demonstrated by the fact that it could not have been used by instant plaintiff in submitting her case. This because decedent’s car admittedly was on its right side of the road when the collision occurred. To have given new 17.13 therefore would have been equivalent to directing a verdict for defendant on plaintiff’s claim. McCroskey v. Marshall, 519 S.W.2d 717 (Mo.App.1975).

The foregoing, however, does not mean that the judgment for defendant on plaintiff’s claim should be reversed and remanded. The new instruction changed the submission from “drove on the wrong side of the road” to “automobile was on the wrong side of the road at the time of collision.” However, MAI 32.01 contained the words “drove on the wrong side of the road” and this instruction was not modified and nothing in the 1973 pocket parts in reference to that instruction referred to new 17.13. The same is true regarding MAI 17.02, 20.02, 33.04(5) and 35.01. It is obvious that the instructions committee and this court overlooked the necessity of modifying those instructions so that they would conform to new 17.13. The attorney for defendant and the trial court properly relied on the authenticity of 32.01 and cannot be faulted for using it. Moreover, we have the view that, in any event, the giving of No. 6 in this instance was not prejudicial. This because plaintiff testified that she intentionally drove her car onto the left half of the road. Therefore, since the submission was in substantially the same words as the admitted fact it would be difficult to find any prejudice. We accordingly rule that the giving of Instruction No. 6 did not constitute prejudicial error.

As heretofore stated, the appeals court ruled, sua sponte, that defendant’s counterclaim failed to state a claim and that the evidence supporting it was also insufficient. After transfer, appellant did not file any supplemental brief raising that point but it was referred to by both parties in argument so we consider that the question is before us.

The counterclaim alleged that defendant had been appointed executor of decedent’s estate and that she had no surviving spouse or minor children. It was also alleged “That as a result of said death funeral expenses were incurred, and the estate of Mary Loomis Gibson and her beneficiaries have been damaged in the sum of $50,-000.00.” Brief testimony on the part of defendant provided the only evidence in support of the counterclaim. He testified that decedent, who was 77 years old, was his wife’s aunt and that his “wife was probably the only close family relative surviving”; that the funeral expenses were $1,089.40 which he paid as executor.

While Section 537.080(3) authorizes the executor to sue for the wrongful death of an adult who dies without leaving a spouse or minor children, “The amount recovered is not an asset of the defendant’s estate, but belongs to those persons designated in the statute; and where the suit is brought by the administrator, he is a mere trustee to maintain the action for those entitled to the damages sought to be recovered.” Troll v. Laclede Gaslight Co., 182 Mo.App. 600, 169 S.W. 337, 339 (1914). The beneficiaries of the recovery are those to whom the estate of decedent “shall be distributed according to the laws of descent.” It is essential to recovery, however, to plead and prove that any such heir shall have suffered a pecuniary loss by reason of the death. Lynch v. St. Louis Public Service Co., 261 S.W.2d 521 (Mo.App.1953). “The test of the right of recovery under our death statutes is the reasonable probability of pecuniary benefit from the continued life of the deceased, or a pecuniary injury from the death,” Domijan v. Harp, 340 S.W.2d 728, 734 (Mo.1960).

The counterclaim wholly failed to state a claim for relief. It did not allege that decedent had any heirs nor undertake to name any beneficiaries nor allege that any specific heir suffered a pecuniary loss by reason of decedent’s death. And while there was testimony from which it could be inferred that defendant’s wife, a niece, was decedent’s legal heir there was no proof that she suffered any financial loss by reason of decedent’s death. It follows from the foregoing that the judgment on the counterclaim cannot stand. And since there was no suggestion at the time of argument that the petition could be amended to state a claim or that proof could be made to support such a claim we see no necessity of considering whether it would be advisable to remand for further proceedings.

We accordingly rule that the judgment for defendant on plaintiff’s claim should be affirmed and that the judgment for defendant on his counterclaim should be reversed.

It is so ordered.

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

BARDGETT, J., concurs in result.

      . All statutory references are to RSMo 1969, V.A.M.S.


author: HENLEY, Judge.

text:
    In re Gary Max ELDREDGE, Respondent.
    No. 58924.
    Supreme Court of Missouri, En Banc.
    Dec. 8, 1975.
    Adams B. Fischer, Durley, Keating & Fischer, Sedalia, for informants.
    Peter N. Sterling, Kansas City, for respondent.
   HENLEY, Judge.

This is a disciplinary proceeding commenced by the chairman of The Advisory Committee pursuant to Rule 5.19. The information charged that Gary Max El-dredge, respondent, a member of The Missouri Bar admitted to practice in 1971, had been adjudged guilty of professional misconduct in another jurisdiction and, therefore, should be disciplined by this court. We granted the prayer of informant and issued our order directing respondent to show cause why that adjudication should not be conclusive of misconduct for the purpose of discipline by this court.

The information alleges, in particular, that on May 3, 1974, respondent was stricken from the roll of attorneys authorized to practice in the United States Court of Appeals for the Eighth Circuit, because he neglected a legal matter entrusted to him, in that, as court-appointed counsel for Oran Ray Hayes, appellant in the case of U. S. v. Oran Ray Hayes, this respondent: (1) neglected to file timely a brief for appellant and neglected repeatedly to file a supplemental brief within the time as extended by the court; (2) failed to provide appellant with a copy of the brief filed although requested to do so; (3) neglected and failed to file a petition for writ of certiorari in the Supreme Court of the United States although repeatedly informed of his duty and requested to do so; and (4) failed to meet appointments made with appellant and failed to answer correspondence received from appellant.

The information further alleges that respondent was, as required by Rule 1(e) of Rules of the United States District Court for the Western District of Missouri, automatically disbarred by order of that court on May 24, 1974, by reason of the action taken earlier in the month by the court of appeals; that he was notified of the automatic disbarment and of his right to show cause on or before June 27, 1974, why that order should be vacated, but he failed to respond thereto.

Respondent raises no question about the effect of the orders entered by the court of appeals and the district court, In re Veach, 365 Mo. 776, 287 S.W.2d 753, 758[6] (banc 1956); hence, we need not discuss them. He admits that he neglected his duty to his client in the respects described above. He violated Canon 6(DR6-101(A)(3)) of Rule 4, Code of Professional Responsibility, and it is mandatory that he be disciplined. Actually, the only question this case presents is in the nature and extent of the discipline to be imposed.

Having considered the facts and circumstances of respondent’s neglect, and remembering the purpose of discipline so well stated in Veach, supra (287 S.W.2d at 760), we conclude that justice would be served by administering a reprimand.

Respondent is reprimanded.

All concur.

      . References to rules are to Missouri Supreme Court Rules.


author: SEILER, Chief Justice. FINCH, Judge

text:
    In re Dan D. WEINER, Respondent.
    No. 58923.
    Supreme Court of Missouri, En Banc.
    Dec. 8, 1975.

      Thomas P. Meade, Palmyra, for informants.
    Steven J. Stogel, Rosenblum & Golden-hersh, Clayton, for respondent.
   SEILER, Chief Justice.

This case presents the question of how far must or should we go in disciplining a Missouri lawyer who has been suspended in another state. The present disciplinary proceeding is based on our rule 5.19 which provides, in substance, that where a Missouri attorney has been adjudged guilty of professional misconduct in another jurisdiction, an order shall be served to show cause why said adjudication should not be conclusive of said misconduct for the purpose of discipline by this court. On October 16, 1974, the supreme court of Ohio entered an order suspending respondent Dan D. Weiner for an indefinite period, Dayton Bar Association v. Weiner, 40 Ohio St.2d 7, 69 Ohio Op.2d 83, 317 N.E.2d 783 (1974). Under the Ohio rules, this means suspension for at least two years (and probably longer) because not until the lapse of that period of time will the Ohio court entertain a petition for reinstatement. Rule V(21), Rules for Government of the Bar of Ohio.

The Ohio board charged respondent with, and after a hearing found him guilty of, the following misconduct:

1. Willful breach of Canon 1, DR 1-102(A)(5) pertaining to conduct prejudicial to the administration of justice.
2. Willful breach of Canon 2, DR 2-106(A) in regard to excessive fees.
3. Willful breach of Canon 2, DR 2-110(A)(2) pertaining to withdrawal of employment to the prejudice of his clients in three instances.
4. Willful breach of Canon 9, DR 9-102 in that he failed to preserve the identity of funds and property of a client.

The board found insufficient evidence to support additional charges of willful breach of Canon 1, EC 1-5, pertaining to disrespect for the legal system and the judges and willful breach of Canon 7, DR 7-106(C)(6) pertaining to conduct degrading to the court.

The Ohio supreme court affirmed the findings of the board and suspended respondent, as said. The record before us consists of the transcript before and the findings and report of the Ohio board, the information for show cause order filed in this court and respondent’s answer thereto.

In his answer to the order to show cause Mr. Weiner set forth his reasons why the Ohio adjudication should not be conclusive for the purpose of discipline by this court and asked for an opportunity to be heard. In general, he maintains there was lack of due notice and a general unfairness as to one of the alleged Ohio violations; that another alleged violation did not constitute grounds for suspension; that the evidence does not justify the conclusion of the Ohio authorities that in three instances he withdrew from employment to the prejudice of his clients; that he was not guilty of the charge that he failed to preserve the identity of funds and property of certain clients and that he has important newly discovered evidence which should be heard and considered on the charge that he converted money for back child support payments to his own use. He contends that the Ohio court overreacted and that if any discipline is justified here it should be no more than a public reprimand.

This court has charge of the admission to the bar of this state and the disciplining of its members. We are not required to discipline a Missouri lawyer who has been disciplined in a sister state. Our rule 5.19 is couched in terms of the lawyer being required to show cause why we should not discipline him, which recognizes the possibility that despite discipline by a sister state, we might choose not to discipline our member here. “. . . There may be cases in the future where, recognizing the finality of the foreign adjudication, we may not see fit to give it effect in Missouri . . In re Veach, 365 Mo. 776, 287 S.W.2d 753, 759 (banc 1956).

A disciplinary proceeding involves the relationship between the courts and their officers. The courts of each state create, define, and control this relationship with no necessary reference to the status of its officers in the courts of another sovereign state. The fact that a person is admitted or disbarred to or from the bar of one state does not compel any other state to admit or disbar that person to or from its own bar. Missouri makes its own independent judgment as to the fitness of the members of its bar.

The matter is well put in In re Kimball, 40 A.D.2d 252, 339 N.Y.S.2d 302, 305 (1973), reversed on other grounds, 33 N.Y.2d 586, 347 N.Y.S.2d 453, 301 N.E.2d 436 (1973), as follows:

“We believe that we are not bound to give full faith and credit to the Florida judgment of disbarment in the constitutional sense . . . Reasons of policy regarded as significant in one State in their effect on the conduct of attorneys may not prevail in another State, because of differing conditions; the sensitive office of an attorney must be continually subject to the control of the courts in which the attorney practices or seeks admission. The Federal courts do not automatically disbar an attorney because he is disbarred by a State court The rule which emerges from these and other cases is that high respect for the foreign determination of guilt must be accorded by the court to which the disbarred attorney applies for admission, but that the local court will make an independent judgment of the effect of that determination on the character and fitness of the applicant . .

What about respondent’s fitness and character in light of the Ohio findings? He was found guilty of commingling his and his clients’ funds and of using a foreign trust account located in another state, but there is no evidence of any intent to defraud or that any client lost money as a result of the commingling. He was found guilty of contempt of court in failing to appear for a trial, for which he was fined $450.00, see State v. Weiner, 37 Ohio St.2d 11, 66 O.Op.2d 6, 305 N.E.2d 794 (1974), which the Ohio board said, standing alone, would merit a reprimand. He was found guilty in three instances of threatening to withdraw from employment without taking reasonable steps to protect the rights of his client. While it is not altogether clear, the Ohio board seemed to believe that if standing alone, a public reprimand would be merited in these instances.

The most serious transgression found by the Ohio board was that he applied $480.00 cash which had been deposited with him in trust for back child support to his fee without the client’s consent. It is likely that this finding, more than any of the others, is what led the Ohio board to recommend suspension for an indefinite period of time rather than the public reprimand mentioned as being merited with respect to the other violations.

However, respondent asserts that after the Ohio court’s decision, he, while cleaning out his office, discovered a tape recording of part of a conversation which shows that his client authorized and consented to his application of the above mentioned $480.00 to his fee.

He asserts he is entitled to a hearing on the “authenticity and genuineness of this tape” and if it proves to be genuine and to support his contention that the client authorized the application of the money to his fee, this serious charge should be dismissed. The Ohio court declined to hear this allegedly newly discovered evidence, but we see no reason why we should not do so in deciding the important question of whether respondent has properly conducted himself as a member of our bar and whether discipline is necessary to protect the public interest. As said in Florida Bar v. Wilkes, 179 So.2d 193, 197 (Fla.1965):

“. . . In order properly to resolve this issue, this court and its agencies must, in every disciplinary proceeding, whether based upon acts of misconduct already adjudicated in another state or upon acts committed in this state, fully inform themselves concerning the nature of the misconduct and all the attendant circumstances. In doing this all available sources which can be properly utilized should be considered, including all evidence properly offered in the Florida proceeding and the record of proceeding in the sister state. Under this view Florida, although accepting the foreign determination of guilt, is left free to determine for itself the fitness of the accused attorney as affected by the acts of misconduct involved. It may accordingly order discipline which is more or less stringent than that awarded by the sister state.”

We therefore conclude that before we arrive at a final decision this cause must be remanded to a master to be appointed by this court for an evidentiary hearing and findings of fact and recommendation on the issue of whether respondent had the permission of his client to use the $480.00 to apply on his fee.

The cause is therefore remanded with directions as above for hearing and report by a master to be appointed by this court.

MORGAN, BARDGETT and DONNELLY, JJ., concur.

PINCH, J., dissents in separate opinion filed.

HOLMAN and HENLEY, JJ., dissent and concur in dissenting opinion of FINCH, J.

FINCH, Judge

(dissenting).

I respectfully dissent.

In my judgment the principal opinion is in conflict with the case of In re Veach, 365 Mo. 776, 287 S.W.2d 753 (banc 1956), but it neither overrules nor even attempts to distinguish that case. The short reference in the principal opinion to Vea ch indicates a view that the cases are consistent. In my judgment they are not.

In Vea ch an information was filed against respondent which in count one charged certain professional misconduct in St. Louis and in count two alleged the suspension of respondent in Illinois by reason of various acts for which the Supreme Court of Illinois ordered suspension for a period of five years. In his answer to count two, respondent admitted the suspension in Illinois but denied the sufficiency of the evidence in the Illinois hearing to support the action taken by that court.

On the basis of these pleadings, the Bar Committee filed a motion for judgment on the pleadings as to count two on the ground that respondent’s answer and his return to an order to show cause presented no defense. This court sustained the motion for judgment on the pleadings and suspended respondent in Missouri on count two for the same period for which he had been suspended in Illinois. In so holding, the court discussed at some length the Illinois judgment and its effect. In so doing, it considered and relied upon the case of Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585 (1917), which involved proceedings to strike from the roll of the bar of the United States Supreme Court an attorney who had been disbarred in Michigan. In discussing Selling, this court said, 287 S.W.2d at 758:

«⅜ » ⅛ court there held that the loss of the requisite qualification for membership in the Bar, by wrongful conduct wherever committed, operates everywhere and furnishes reason in every jurisdiction for a revocation of license. The court further held that the effect of the judgment of the Michigan court, In re Radford, 168 Mich. 474, 134 N.W. 472 should be recognized unless: (1) there was a lack of due process; (2) there was such an infirmity of proof as to create a clear conviction that the conclusion should not be accepted; or (3) there appeared some other ‘grave reason’ which would indicate that the result would conflict with the court’s duty under the principles of ‘right and justice.’ In our opinion, none of those exceptions or qualifications are applicable here.”

In harmony with the ruling in Selling, the court went on to rule, 1. c. 758:

“ * ⅜ * We now hold that on the present record the judgment and opinion of the Illinois Supreme Court constitutes and is a sufficient ground for disciplinary action by this court. In so ruling we are supported, directly or in principle, by the following authorities: People ex rel. Colorado Bar Ass’n v. Lindsey, 86 Colo. 458, 283 P. 539; State Board of Law Examiners v. Brown, 53 Wyo. 42, 77 P.2d 626; In re Leverson, 195 Minn. 42, 261 N.W. 480; In re Isserman, 345 U.S. 286, 73 S.Ct. 676, 97 L.Ed. 1013; Copren v. State Bar, 64 Nev. 364, 183 P.2d 833, 173 A.L.R. 284; In re Ulmer, 268 Mass. 373, 167 N.E. 749; In re Van Bever, 55 Ariz. 368, 101 P.2d 790, and Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585, supra.”

In analyzing some of the above cited cases, the court then went on to point out that some of the cases appear to rely on a theory of comity and others recognize the foreign judgment as one entitled to full faith and credit. The court then said, 287 S.W.2d at 759:

“ * * * Actually, the matter would seem to involve both doctrines. The judgment appears to us to be one entitled to full faith and credit in so far as it finally adjudicates that in Illinois the respondent was guilty of the misconduct with which he was charged. Such being true, we cannot, in any sense, permit that issue to be relitigated here. Such a judgment is only subject to attack for: (1) lack of jurisdiction over the subject matter; (2) failure to give due notice to the defendant; and (3) fraud in the ‘concoction’ of the judgment. Howey v. Howey, Mo., 240 S.W. 450; Leichty v. Kansas City Bridge Co., 354 Mo. 629, 190 S.W.2d 201; Kilbourn v. Kilbourn, 354 Mo. 17, 190 S.W.2d 206. None of these grounds appears here; and respondent appeared and contested the Illinois proceedings. We cannot and will not reinvestigate the merits of those charges.” (Emphasis supplied.)

From the foregoing it is clear that this court in Vea ch held that in the absence of the enumerated grounds for attack, namely, lack of jurisdiction, failure to give due notice or fraud in obtaining the judgment, the judgment in the foreign court with respect to the merits of the charges and the respondent’s guilt thereof will be final, not subject to reinvestigation or redetermination by this court. The court ordered suspension for the same period as Yeach had been suspended in Illinois. It is true that the court in Vea ch used the language quoted in the principal opinion, namely, “[t]here may be cases in the future where, recognizing the finality of the foreign adjudication, we may not see fit to give it effect in Missouri. * ⅜ *” 287 S.W.2d at 759. However, that language indicates to me that the court was saying that in some future case it may decide not to impose the discipline ordered by the other state, even though it recognizes the finality of its adjudication with reference to the conduct charged. That language does not indicate to me an intention to relitigate the merits of the charges in this court. Yet, that is exactly what the principal opinion proposes in this case.

The Ohio Supreme Court found that respondent wrongfully applied to his own fee the sum of $480 deposited with him in trust for back child support. Thereafter, it declined to reopen the case on the basis of an allegedly newly discovered tape. Under Vea ch that issue should not be reinvestigat-ed or relitigated in this court unless the Ohio judgment is subject to attack on the basis of (1) lack of jurisdiction over the subject matter, (2) failure to give due notice to the defendant, or (3) fraud in the “concoction” of the judgment. None of these are found by the principal opinion. Even so, it proposes to appoint a master and to have him conduct a hearing as to the authenticity of the tape, after which he is to make findings and recommendations as to whether respondent had permission to apply the $480 as he did. In my judgment this does not entail merely listening to the tape and concluding whether it is authentic. The opinion, necessarily, directs a reinvestigation and a redetermination as to whether respondent did or did not misapply $480 of trust funds entrusted to him by his client because petitioner claims that he was authorized and that this charge should be dismissed. That means that the master must go to Ohio, take testimony from the client and others who have any knowledge as to this issue, determine when the alleged conversation took place and what prompted it, whether it was before or after application of this money to respondent’s fee, whether the consent, if given, was to excuse what already had been done or was authorization for subsequent application, check respondent’s bank accounts, if necessary, and investigate any other relevant matters pertaining to this issue. That definitely is not what Vea ch would call for or authorize. Adoption of such a rule would in future cases mean that this court on a case-by-case basis, without any specific guidelines or criteria such as those spelled out in Vea ch as exceptions, would reinvestigate and redetermine the issue of whether a lawyer is guilty of that misconduct already found by the court of another state. In my view, that amounts to overruling Yeach without saying so.

I would not redetermine the question of whether respondent improperly applied trust fund money to his fee. I would accept the Ohio determination of that issue. I would proceed to determine, in the light of the testimony heard in Ohio, plus briefs and arguments in this court, whether we will apply the same discipline as Ohio imposed (as this court did in Vea ch) or whether we will impose different punishment, as we have just done in the case of Gary Max Eldredge, 530 S.W.2d 221 (Mo.), decided concurrently with this case. This would be consistent with the decision in Vea ch.

      . Respondent was bom and raised in Missouri and admitted to the Missouri Bar on April 27, 1956. For the past eleven years he has practiced in Dayton, Ohio, where he commenced practice in 1963, first with a firm, but since 1965 as a sole practitioner.

      . The Ohio canons of ethics are the same as ours, being taken from the American Bar Association Code of Professional Responsibility.

      .There were five instances of alleged excessive fees. The Ohio board found against respondent in only one of the five. Informants concede in their brief that they can find no basis supporting the finding, nor can we and so we disregard it.

      . Various judges before whom respondent practiced in Ohio described him as conducting himself in court as a gentleman, one who fights hard for his clients, is persistent but bullheaded.


text:
    Ex parte David W. BROWN.
    No. 59190.
    Supreme Court of Missouri, En Banc.
    Dec. 8, 1975.
    David W. Brown, pro se.
    Reed O. Gentry, Kansas City, for respondent.
   HENLEY, Judge.

This habeas corpus proceeding, filed April 15, 1975, in the court of appeals, Kansas City district, was transferred to this court when the authors of dissenting opinions certified that they deemed the majority opinion to be contrary to prior decisions of this court and the court of appeals. Article V, § 10, Constitution of Missouri.

David W. Brown (petitioner), a member of the bar of Missouri, was on April 14, 1975, found guilty of criminal contempt of the circuit court of Jackson county and sentenced to confinement for 30 days in the custody of the county’s department of corrections.

A brief statement of the facts out of which this case arose will help to put it in perspective. Sometime before the day on which petitioner was found in contempt, he was appointed by the circuit court to represent defendant in the case of State of Missouri v. Phillip H. Richardson in which the defendant was charged in four counts with the commission of as many felonies. The case was set for trial for April 14,1975, and petitioner appeared that morning, but, after calling the court’s attention to several pending motions and securing rulings thereon petitioner announced he would “ * * * have to defer from participating in this trial.” Inquiries by the court as to petitioner’s reason for this announcement brought answers essentially the same as the announcement. After the court explained to petitioner that he could and would be found in contempt if he refused to participate in the trial after being ordered to do so, petitioner replied that he understood, but “ * * * woui¿ have to disobey that order.” Upon being ordered to participate, petitioner refused. Immediately thereafter the court found petitioner guilty of contempt and directed that an order of commitment issue forthwith.

The court of appeals issued its writ of habeas corpus directed to the officer in charge of the county jail where petitioner was being confined. In his return to the writ, this officer (James Bergfalk, respondent) pleaded, as his authority for confinement of petitioner, the order of commitment issued by the circuit court of Jackson county. Answering the return, petitioner alleged, among other things, that the order of commitment was unlawful and respondent, therefore, without authority to restrain him, because the judgment of contempt, on which the order is based, fails to state the facts and circumstances of the contempt offense as required by Rule 35.-01(a).

The order of commitment is as follows:

“Now on this 14th day of April, 1975, a certain criminal cause wherein one Phillip H. Richardson is defendant came on regularly for trail, [sic] and David W. Brown, attorney of record for defendant appeared in this court at ten thirty o’clock a. m., although this case was set for trial for this date ten days ago, and although the said contemner had been specifically directed by the clerk of this Court at the direction of the undersigned Judge of this Court to be and appear in this Court not later than nine thirty o’clock a. m., on this date for trial of said criminal cause, and in open court said contemner told the judge of this court that he would not appear on behalf of said defendant Richardson at the trial of this cause whereupon this Court advised contemner Brown that he would not be relieved as attorney for defendant Richardson, and that he must proceed to trial in said Richardson case; whereupon contemner Brown told the Court that in spite of the Court’s order he, contemner Brown, refused to proceed with the trial of said cause, and openly defied the lawful order of this Court in open court; whereupon this Court found contemner Brown in direct contempt of this Court and ordered that contemner Brown be forthwith confined in the custody of the Jackson County Department of Corrections for a term of thirty (30) days and until released by order of this Court or any other Court of competent jurisdiction.”

The judgment of contempt is as follows:

“ * * * [T]he Court now finds Mr. David W. Brown of the law firm of Holli-day, Holliday & Brown is in direct contempt of this Court; and it is further ordered that Mr. David W. Brown be confined in the custody of the Jackson County Department of Corrections for a period of Thirty (30) days, unless sooner released by lawful order of this Court or any Court having competent jurisdiction.”

Rule 35.01(a) provides:

“A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.” (Emphasis supplied.)

Respondent takes the position that it is not necessary to the validity of petitioner’s commitment that the facts and circumstances of the contempt be recited in the judgment of contempt; that all that is required is that the order or warrant of commitment set forth the particular circumstances of the offense; that this is all that is required by § 476.140. That section provides:

“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.”

For reasons hereinafter stated, we need not reach or decide the question of whether the order of commitment complies with § 476.140. However, assuming for the purpose of discussion that it does, petitioner should be remanded to the custody of respondent unless, as petitioner contends, the law requires that the order or judgment of contempt recite the facts and circumstances constituting the offense.

This court and the court of appeals have held consistently since the beginning of this century that in contempt proceedings the facts and circumstances constituting the offense, not mere legal conclusions, must be recited in both the judgment of contempt and the order of commitment.

Ex parte O’Brien, 127 Mo. 477, 30 S.W. 158 (1895) involved a contempt proceeding in which the record showed that the court had not entered a judgment of contempt, but had only issued an order of commitment. The court held that there must be both a judgment of contempt and an order of commitment if the confinement of the habeas corpus petitioner is to be upheld. The court said (30 S.W. at 160):

“Contempt of court is ‘a specific criminal offense,’ and the fine imposed is a judgment in a criminal case. The adjudication is a conviction, arid the commitment in consequence thereof is execution. Church, Hab. Corp. (2d Ed.) § 308. See, also, Rap. Contempt, § 155; Ex parte Kearney, 7 Wheat. 38. Now, the chief deputy clerk, Fitzgerald, does not show nor intimate by his testimony that any judgment was rendered, or ordered to be entered. He was simply ordered to issue these commitments. And it was competent for him, being the custodian of the records of that court, to testify what entries were made, if any were made. Durham v. Heaton, 28 Ill. 264. So that it appears that there has been no adjudication that petitioner and his associates have been guilty of a contempt. If this be true, then the commitment — occupying, as it does, the place of an execution — has no basis on which to rest; for it is the judgment, and not the mittimus, by virtue of which the party committed is detained. People v. Baker, 89 N.Y. 460. Unless the record shows a judgment of conviction of contempt, a petitioner may avail himself of the remedy provided by habeas corpus.”

In Ex parte Shull, 221 Mo. 623, 121 S.W. 10 (1909) the judgment of contempt and the order of commitment were combined in one record entry. The attack by habeas corpus was, of course, on both; and, both were held to be insufficient in that they did not state the facts and circumstances of the contempt. The court said (121 S.W. at 11):

“When the commitment in this case is tested in the crucible of the law, it is found to fall far short of the requirements of the statute. Similar statutes are found in other states. If we look at the recitals of the order leading up to the adjudication of the contempt, there is no effort made to state the particular questions, the refusal to answer which constituted the contempt. We are simply told that the petitioner had treated the court disrespectfully in refusing to answer proper and legal questions propounded to him. It is not even found that said questions were material and pertinent; but, aside from this last consideration, the statute requires the facts themselves to be stated, not merely the court’s conclusion that the questions were legal and proper, and, when we come to the adjudication of the contempt itself, it is not then put upon the ground of the refusal to answer questions; but the finding and the only finding is that petitioner had treated the court disrespectfully. In what manner or how the petitioner treated the court disrespectfully the court did not adjudge and state in its judgment.

“If it should be said it can be inferred by the matter of inducement set out in the record, the answer of all the courts is that, as this is a criminal proceeding by which the citizen is deprived of his liberty, presumptions and intendments will not be indulged in order to sustain a conviction for contempt of court.”

In Ex parte Stone, 183 S.W. 1058, 1059[3, 4] (Mo.banc 1916) the attack again was upon both the judgment of contempt and the commitment order for failure to state the “particular circumstances” of the offense. Having found the order of commitment insufficient for that reason, the court said: “The order of adjudication of contempt is likewise insufficient, when tested by the same rules.” See also: Ex parte Creasy, 243 Mo. 679, 148 S.W. 914, 922-23[4] (Mo.banc 1912) for a more detailed discussion of the reasons for the rule that the facts and circumstances of the contempt must be particularized in both the judgment and the execution.

In Ex parte Fuller, 50 S.W.2d 654, 657[3] (Mo.banc 1932), the court, citing Ex parte Creasy, supra, said: “ * ⅜ * the facts and circumstances constituting the contempt should be recited in the judgment.” Each district of the court of appeals has held that in contempt proceedings “ * * * the facts and circumstances constituting the offense, and not simply legal conclusions, must be recited not only in the judgment * * * but also in the commitment * ⅜ *" Glenn v. Hendrix, 349 S.W.2d 532, 533[2] (Mo.App.1961 [Springfield]); Curtis v. Tozer, 374 S.W.2d 557, 574[15] (Mo.App.1964 [St. Louis]); Ex parte Neal, 507 S.W.2d 674, 679[8] (Mo.App.1974 [Kansas City]).

The requirement of Rule 35.01(a) that the order of contempt shall recite the facts is an expression or codification of the case law developed over the years in the cases referred to, and others.

We hold again that in contempt proceedings, whether direct or indirect, the facts and circumstances constituting the offense, not mere legal conclusions, must be recited with particularity in both the judgment of contempt and the order of commitment.

The judgment of contempt fails to do so in this case. In this circumstance, it does not matter whether the order of commitment meets this requirement, because “ ⅜ ⅜ * occupying, as it does, the place of an execution-[it] has no basis on which to rest; for it is the judgment, and not the mittimus, by virtue of which the party committed is detained.” Ex parte O’Brien, supra (30 S.W. at 160).

For the reasons stated, the petitioner must be, and is, discharged.

All concur.

      . Ex parte Shull, 221 Mo. 623, 121 S.W. 10 (Mo.1909); Ex parte Stone, 183 S.W. 1058 (Mo.banc 1916).

      . Curtis v. Tozer, 374 S.W.2d 557 (Mo.App.1964); Glenn v. Hendrix, 349 S.W.2d 532 (Mo.App.1961).

      . Petitioner was released from jail on his own recognizance pending a final decision of this case.

      . References to rules are to Missouri Supreme Court Rules.

      . References to sections of the statutes are to RSMo 1969 and V.A.M.S.


author: FINCH, Judge.

text:
    In re Milton W. SCHAEFFER, Respondent.
    No. 58788.
    Supreme Court of Missouri, En Banc.
    Dec. 8, 1975.

      Sheldon D. Grand, Clayton, Mo., for informants.
    Bernard Steinger, Clayton, Mo., for respondent.
   FINCH, Judge.

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

An information, filed following formal hearings by the Bar Committee, charges respondent with violating Rule 4 and particularly DR 1-102(A)(3), DR 1-102(A)(5) and 1-102(A)(6) thereof in that he violated § 210.211, by acting as a “child placing agency” (as defined in § 210.201(3)) and by holding himself out as such an agency without being licensed to so act. Respondent filed an answer to the information after which a master was appointed, hearings were held and the master has now filed his report.

The testimony discloses that in August 1971 Mrs. Helen Corbin and her then unmarried, pregnant 16 year old daughter Debra conferred with Bruce Nangle, a St. Louis attorney, with reference to their problem. They discussed several possibilities, including getting the purported father to marry the girl or having the child put up for adoption. Mrs. Corbin indicated dissatisfaction with a public social agency which she had consulted about adoption. Mr. Nangle advised that he had little experience in this field and suggested referring them to someone more knowledgeable. He then suggested respondent Schaeffer with , whom Nangle had once shared an office because he knew Schaeffer had done considerable work of that nature.

At the initial conference in respondent’s office, attended by Mrs. Corbin, her daughter, Nangle and respondent, the possibility of adoption was discussed. Respondent advised that there were social agencies, public and private, through which the Corbins could go in order to place the child for adoption, but the Corbins replied they did not want to follow that course. In addition to dissatisfaction with the agency they had contacted, Mrs. Corbin, according to respondent, did not want the baby placed in St. Louis County for fear that the family of the father might try to obtain custody of the child. The respondent then advised that if they decided not to go through an agency, he could arrange with an attorney in Illinois who could arrange for and handle an adoption. They were sent home to think about the matter and were to advise if they wanted to proceed along those lines.

Thereafter, in subsequent conferences, the Corbins requested respondent to proceed as he had suggested. He then contacted Frederick Merritt, an Illinois attorney with whom he had had numerous social and business contacts over a number of years, about as to whether he had clients who were prospective adoptive parents. Merritt advised Schaeffer that he had a couple interested in adopting the child when born. Accordingly, he prepared and sent to Schaeffer consents to adoption and entries of appearance to be executed by Mrs. Cor-bin and her daughter. Merritt requested that the child be born in Illinois and he advanced funds to Schaeffer to be used for medical and hospital expenses. Schaeffer then arranged to have the child born in Granite City, Illinois in St. Elizabeth’s Hospital. Thereafter, pursuant to instructions from the doctor, Debra entered the hospital where her child was born on October 12, 1971. The plan contemplated that Debra and the child were to be discharged from the hospital on Sunday, October 17, that she was to walk from the hospital across the street to the doctor’s office where she was to deliver custody of the child to respondent. He, in turn, was to turn the child over to the prospective adoptive parents out of Debra’s presence since their identity was not to be revealed to her. The adoption proceedings were to follow, handled entirely by Merritt.

After the birth of the child, Debra decided that she wanted to retain her baby instead of putting him up for adoption, and on Saturday, October 16, Mr. and Mrs. Cor-bin appeared at the hospital for the purpose of taking Debra and her baby home. The hospital objected to their departure until respondent was summoned. On arrival, respondent strenuously objected to the change in plans and stated that the prospective adoptive parents would not pay the doctor or hospital bills if they did not receive the baby for adoption. Arguments ensued, but ultimately Mr. and Mrs. Corbin signed a note promising to pay the hospital’s bill, and they then took Debra and the baby and left the hospital. Thereafter, on two occasions, Schaeffer called the Corbin home and talked to Debra as to whether she had changed her mind about keeping the baby. Debra advised that she had not. Shortly thereafter, respondent sent Mrs. Corbin a bill for $500. Subsequently, she filed with the Bar Committee a complaint with respect to the conduct of respondent. An investigation followed, culminating in this proceeding.

With certain exceptions not here pertinent, § 210.211 makes it unlawful for any person to act as a child placing agency or to hold himself out as such without obtaining a license to so act from the division of welfare. A “child placing agency” is defined in § 210.201(3) as “ * * * any person who advertises or holds himself out as placing or finding homes for children * * * or who causes, or assists in causing, the adoption or change in possession or custody of one or more children, for compensation or otherwise.”

Even assuming applicability of § 210.211 to respondent, the charge that he acted as a “child placing agency” by causing or assisting in causing a change in possession or custody of the Corbin baby was not sustained because there was no change in possession or custody. The master so concluded and we agree.

The second charge that “(s)ince approximately August 1971, respondent did and still does hold himself out as being able to find children for adoption and did and does direct, guide and assist efforts to cause a change in the possession or custody and the subsequent adoption of children, thereby acting as a ‘child placing agency’ * * * ” presents a more difficult question, namely, the scope of § 210.211 and whether it is applicable to actions of an attorney in representing a client in adoption or change of custody cases.

Various exceptions in which a license from the division of welfare is not required are spelled out in § 210.211. One such exception is a person related to the child involved. For example, the mother of the child may transfer custody of her child, in Missouri, provided she complies with the requirements of § 453.110 by filing a petition in the juvenile court. Usually, the mother would employ a lawyer to prepare the petition and assist her in arranging for the transfer of custody. Would the lawyer, not specifically listed as an exception in § 210.211, and not licensed by the division of welfare, violate § 210.211 by rendering legal services to the mother? We conclude not. As counsel herein point out, there apparently are no cases construing § 210.-211 or similar statutes with reference to whether they apply to an attorney acting as such in an adoption proceeding under applicable statutes. We assume that is true because it seems inconceivable that legislative bodies, in adopting statutes such as § 210.211, intended to brand as a crime the usual and necessary practice of having an attorney handle such adoption proceedings. This is not to say that a person who is an attorney may not unlawfully hold himself out as a “child placing agency” in violation of § 210.211. It does mean that a lawyer is not required to be licensed by the division of welfare to permit him to render regular legal services in connection with adoption proceedings.

In this case respondent was not employed by the Corbins on the basis that he held himself out as a “child placing agency”. He was brought into the case because Bruce Nangle, the attorney originally consulted by the Corbins, knew him and knew of his experience in such matters while they of-ficed together.

After respondent was employed, he contacted attorney Merritt in Illinois and, on being advised that Merritt had clients who would like to adopt the baby, made arrangements for Merritt to proceed with plans for adoption proceedings in the Illinois courts after the baby was born. Merritt testified that the procedure which was to be followed was authorized in Illinois and the Bar Committee has not suggested otherwise in its brief or argument. This evidence does not sustain the charge that “(s)ince approximately August 1971, respondent did and still does hold himself out as being able to find children for adoption and did and does direct, guide and assist efforts to cause a change in the possession or custody and the subsequent adoption of children, thereby acting as a ‘child placing agency’ * * * ” in violation of § 210.211. It does not show that respondent did other than render advice and permissible services to his clients.

In the course of his testimony with reference to the Corbin matter, respondent testified that in years prior to the Corbin incident, he had handled similar private placements with lawyers in Illinois, Ohio and New York, and from time to time he had had calls from other lawyers around the country with reference to handling such matters. He stated that some people had offered substantial sums if he would search out a baby, but that he had never participated in such efforts and had not and would not participate in the selling of babies. No other details or specifics as to these earlier transactions with out-of-state lawyers were given or inquired about.

It is urged that it would strain credulity to the utmost to believe that lawyers from distant states would seek out respondent in such matters “unless he had held himself out and became known as one who could place or find homes for children, and who assisted in causing their change of custody.” Consequently, says the Bar Committee, we should hold that respondent violated § 210.-211 and thereby violated certain canons contained in Rule 4. The master so recommended. However, it is our conclusion that, on the basis of this very general testimony, completely lacking in any details as to what respondent did in those instances, or who the attorneys were, or how they knew of respondent, we cannot hold that he thereby violated § 210.211 or canons relating to professional responsibility.

Respondent’s brief suggests that his actions in dealing with the Corbins at the hospital and subsequently may show poor taste and bad judgment on his part, but not professional misconduct. We agree. His conduct on those occasions is to be deplored. In addition, there was testimony by Mrs. Corbin that she was not told and did not know that respondent was to have been paid a fee by the adopting parents if the adoption had been consummated. Since it was not, no fee was received by respondent from the persons who proposed to adopt the baby, but obviously, it would have been improper for respondent to have received a fee in this matter from others than his clients, the Corbins, without their knowledge and approval.

Having concluded that the evidence is insufficient to sustain the charge that respondent violated § 210.211, it follows that it has not been shown that he has violated the canons specified in the information. Accordingly, the information is dismissed.

MORGAN, Acting C. J., HOLMAN, BARDGETT, HENLEY and DONNELLY, JJ., and SIMEONE, Special Judge, concur.

SEILER, C. J., not sitting.

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

      . All statutory references are to RSMo 1969 unless indicated otherwise.

      . Originally, Schaeffer advised Mrs. Corbin that his retainer fee would be $100, but it had not been paid. Schaeffer testified that in proceedings of this kind, he customarily was paid a fee by the adopting parents through Merritt at the conclusion of the adoption, the fee ranging from $300 to $500. Mrs. Corbin testified that she was not aware of this arrangement. Such fee was not paid Schaeffer in this case since the adoption did not occur.


author: DONNELLY, Judge. SEILER, Chief Justice

text:
    STATE of Missouri, Respondent, v. William John ROTHAUS, Appellant.
    No. 59113.
    Supreme Court of Missouri, En Banc.
    Dec. 8, 1975.

      J. Martin Hadican, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Scott A. Raisher, Asst. Atty. Gen., Jefferson City, for respondent.
   DONNELLY, Judge.

Appellant, William John Rothaus, was convicted in the Circuit Court of the City of St. Louis of obtaining a controlled substance by forgery of a prescription (§ 195.-170, RSMo 1969), and his punishment, under the provisions of the Habitual Criminal Act, was assessed at imprisonment for a term of three years. Following rendition of judgment and imposition of sentence, an appeal was perfected to the St. Louis District of the Court of Appeals. The case was transferred to this Court, after opinion, by order of this Court. We decide the case here the same as on original appeal. Mo.Const. Art. V, § 10.

According to the uncontradicted evidence, on July 3, 1972, appellant presented a prescription for dilaudid tablets to a pharmacist at Bushell Pharmacy in the City of St. Louis. The pharmacist sold 20 tablets to appellant. The signature of Dr. E. Y. Cow-dry appeared on the prescription. It was forged. Dr. Cowdry did not sign the prescription. He had never treated appellant.

Appellant’s only assignment of error is that the trial court “erred in failing to grant the defendant’s request for a mistrial during the closing argument on behalf of the state when the attorney for the state stated that only the defendant knew whether or not the prescription in question was forged, which statement was a comment upon the failure of the defendant to testify and thus violated defendant’s rights per Article I, Section 19 of the Constitution of Missouri and Amendments Five and Fourteen of the United States Constitution.”

The record on appeal reveals the following transpired at trial during closing argument:

“MR. MOSS: Fourth, that the defendant knew said prescription to be false, forged, and counterfeit. How does the defendant know that it’s false, forged and counterfeit? You arrive at that decision by circumstances, by looking at the surrounding facts. The only one who can actually say he knew is the defendant.
“MR. HADICAN: One moment, Your Honor, I want at this point to approach the bench, please.
“(Thereupon the following occurred out of the hearing of the jury:)
“MR. HADICAN: Your Honor, I want to object to the comment just made by the prosecutor in his closing argument, on the grounds it violates the fact the defendant did not take the stand and he has an absolute right, under the Supreme Court decision, not to. It’s highly prejudicial and for that reason, Your Honor, I would like the jury be instructed to disregard it and we would request a mistrial.
“MR. MOSS: I might point out to the Court that my remarks are, that the only one who could actually say that he knew it was false was the defendant. I didn’t say that he knew it was true or anything else.
“THE COURT: I will sustain the objection and I will instruct the jury to disregard the last statement of counsel. However, I don’t believe the comment was so prejudicial to warrant a mistrial and that request is denied.
“(Thereupon the trial was resumed before the jury as follows:)
“THE COURT: Ladies and gentlemen, who are instructed to disregard the last remark made by counsel for the State just prior to making of the objection.
“MR. MOSS: Ladies and gentlemen, how do we know? We know by the circumstances. We know that the man had to know he wasn’t a patient of Dr. Cow-dry’s. Dr. Cowdry said he never saw him. He had to know that Dr. Cowdry himself had never given him this prescription, had never prescribed it for him.”

The law is established in Missouri that when arguments made by the prosecutor do not contain direct and certain references to the failure of an accused to testify, an “appellate court will not interfere unless the record shows that the trial court abused its discretion to the prejudice of the appellant * * s but that arguments made by a prosecutor, wherein there are direct and certain references to failure of an accused to testify, constitute reversible error. State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582, 588 (1950); State v. Hutchinson, 458 S.W.2d 553, 555, 556 (Mo.1970); State v. Shuls, 329 Mo. 245, 44 S.W.2d 94 (1931).

Appellant cites State v. Shuls, supra, and State v. Lindner, 282 S.W.2d 547 (Mo.1955). The State cites State v. Haynes, 455 S.W.2d 504 (Mo.1970) and State v. Gregg, 399 S.W.2d 7 (Mo.1966).

In Shuls, the assistant prosecuting attorney said: “Who was there at the hold-up, gentlemen of the jury? There were three parties there and these two girls were the only ones that testified, and what did they say?” The Court referred to the argument as follows (44 S.W.2d, at page 97):

«* ⅜ ⅜ Tha-t it was in effect a pointed reference to the fact that defendant had not testified is too plain for controversy, and that it was so intended and necessarily so understood by the jury does not admit of doubt. The evidence showed clearly and without dispute that there were but three persons present or who witnessed the holdup, the two girls who testified and the defendant who did not. The attorney said that there were three present, ‘and these two girls were the only ones that testified.’ The reference to defendant’s failure to testify could not have been more obvious had he been called by name and the fact baldly stated that he had not taken the witness stand and denied the testimony of the girls.”

In Lindner, the Assistant Circuit Attorney during defendant’s attorney’s argument said: “I’m going to object to that remark and ask that counsel be reprimanded. I don’t know what this boy says. There is no evidence of any type by him in this case and I ask that the jury be instructed to disregard this remark.” The Court referred to these comments as follows (282 S.W.2d, at page 550):

“We think it is clear from the above-quoted portion of the record that the state’s attorney did in fact refer to the defendant’s failure to testify. We reasonably can give no other construction to his statement that: T don’t know what this boy says. There is no evidence of any type by him in this case * * *.’ ‘This boy’ admittedly referred to defendant. The two phrases construed together were tantamount in meaning to a statement that ‘this boy hasn’t said anything in this case.’ Except for a direct statement that ‘defendant has not testified’, we can conceive of no clearer way to express that idea than by the phraseology used in the instant ease.”

In Haynes, the prosecuting attorney said: “We haven’t proved that the defendant knew that Dickie Miller was at 322A Glascock Street on December 6,1966. We don’t know how he knew. We don’t know how he knew, but we know that if anybody in this courtroom knows this defendant does —.” The Court said (455 S.W.2d, at page 505):

“ * * * Undoubtedly, standing alone and without any curative action being taken by the court, the reference would amount to a comment upon appellant’s failure to testify and would be reversible error. * * * But here the court sustained the objection of appellant’s counsel to the argument, and offered to instruct the jury to disregard it * * *. The sustaining of the objection rendered the matter harmless. * * * The trial court observed the incident and any possible prejudicial effect that ⅛ might have had on the jury. * * * Under the circumstances, the trial court’s broad discretion in such matters will not be disturbed by this court.”

In Gregg, the prosecuting attorney said: “ * * * malice can be inferred from the facts; he intentionally shot him, and he has voiced here on different occasions that he shot him. One: T shot him down like a dirty dog.’ It wasn’t controverted. The defendant didn’t deny it; there was no evidence — .” The Court held (399 S.W.2d, at page 11) that if any juror construed the argument as a reference to defendant’s failure to testify, “under the particular situation here presented, the court’s instruction to disregard the statement was sufficient to cure the error.”

Here, the Assistant Circuit Attorney said: “How does the defendant know that [the prescription is] false, forged and counterfeit? You arrive at that decision by circumstances, by looking at the surrounding facts. The only one who can actually say he knew is the defendant.” As in Gregg, we do not think the argument would reasonably be construed as a reference to the failure of appellant to testify. The Assistant Circuit Attorney was referring to the Fourth paragraph of Instruction No. 3, which required the jury to find beyond a reasonable doubt, in order to convict, “that defendant then and there knew said prescription to be false, forged and counterfeit * * It would appear that the Assistant Circuit Attorney was attempting to persuade the jury that it must make such determination from circumstantial evidence, “by looking at the surrounding facts.” However, if any juror did construe the argument as a reference to the failure of appellant to testify, we believe the trial court’s instruction to disregard the statement was sufficient to cure the error. The trial court was of the opinion that the argument was not so prejudicial as to warrant a mistrial. The assertion was raised again by appellant in his motion for new trial, was again considered by the trial court, and was overruled.

We have evaluated the entire record and do not believe the “trial court abused its discretion to the prejudice of appellant.” State v. Tiedt, supra.

The judgment is affirmed.

HOLMAN, HENLEY and FINCH, JJ., concur.

SEILER, C. J., dissents in separate dissenting opinion filed.

MORGAN and BARDGETT, JJ., dissent and concur in separate dissenting opinion of SEILER, C. J.

SEILER, Chief Justice

(dissenting).

I respectfully dissent. The principal opinion suggests that all the state was trying to do by the first paragraph of the closing argument was to persuade the jury it must make the determination about whether the defendant knew the prescription was counterfeit from circumstantial evidence, “by circumstances, by looking at the surrounding facts.” But this was only the first step in the prosecutor’s devious argument. He was raising in the minds of the jurors the question, why must we do it that way? This he immediately answered. Because the only one who can actually say he knew is the defendant, said the prosecutor. Should we assume the jurors were so obtuse that they did not say to themselves, “That’s right, we can’t find out that way because he did not testify?” There are more ways of calling to a jury’s attention the failure of the defendant to testify than actually blurting out, “Look, he did not testify.” We have said that juries are “ . . . composed of ordinarily intelligent persons who should be credited with having common sense and an average understanding of our language.” Wims v. Bi-State Development Agency, 484 S.W.2d 323, 325 (Mo. banc 1972).

The principal opinion says that even if the jury did so understand, no matter because the court instructed the jury to disregard the reference. I respectfully disagree. To borrow the view expressed by the late Judge Jerome Frank, in United States v. Antonelli Fireworks Co., 155 F.2d 631, 648-49 (2d Cir. 1946), to call the error harmless is giving the defendant a “juryless” trial and “founded on a record other than that which the jury considered; for the judges are able to and do disregard the improper matter, but it is impossible to know that the jury did.”

I believe the court of appeals, St. Louis district, was correct in reversing and remanding this case on the stated ground that the prosecutor, in his closing argument, commented on defendant’s failure to testify. In part, the court of appeals, per Stewart, J., said as follows:

“The Fifth Amendment to the Constitution of the United States, which is practically identical with Article 1, Sec. 19 of the Missouri Constitution, provides in part: ‘ ... no person . . . shall be compelled, in any criminal case to be witness against himself . . . ’ These constitutional provisions have been held to prohibit both State and Federal prosecutors from commenting upon the defendant’s failure to testify . . . Rule 26.08(a) and Sec. 546.270 also furnish the accused with the same protection.

“To constitute a violation of the prohibition the prosecutor must make a direct and certain reference to the failure of the accused to testify . . . Crucial to this determination is whether the prosecutor made use of the words ‘defendant’ or ‘accused’ and ‘testify’ and, thus, called to the jury’s attention the accused’s failure to testify . . .

“ . . . We view the statement of the prosecutor within the framework of the facts before the jury. Only three persons could have testified: the pharmacist who filled the prescription; the doctor whose name appeared on the prescription; and the defendant who presented the prescription. Defendant was the only person who could give direct evidence as to whether ‘ . defendant then and there knew the prescription to be false, forged and counterfeit

“Within this framework we look at the statement which makes use of the words ‘say’ and ‘defendant’ which are synonymous with ‘testify’ and ‘accused’. The statement in this case meets the ‘ultimate test’ because the ‘jury’s attention was called to the fact that the accused did not testify’ .

“We empathize with the trial court where, as in this ease, a trial has progressed well into the closing argument and the court is faced with the request for a mistrial. However, we cannot treat lightly the constitutional rights of an accused. The very purpose of the statute and the rule is to keep ‘absolutely from the jury any reference to the constitutional right . against self-incrimination.’ .

“ . . . The remark was a direct reference to defendant’s failure to testify, and was prejudicial.

“The argument in this case is not a form of argument to be indulged as against the rule and the constitutional statutory rights of an accused.”

I would discharge this transfer as improvidently granted and let stand the opinion of the court of appeals.