author: GUDGEL, Judge.

text:
    Patricia Sue WOOSNAM, Appellant, v. Kenneth Ray WOOSNAM, Appellee.
    Court of Appeals of Kentucky.
    May 18, 1979.
    Rehearing Denied July 13, 1979.
    Discretionary Review Denied Oct. 23, 1979.
    Charles E. Moore, Moore & Moore, Ow-ensboro, for appellant.
    Robert M. Kirtley, Owensboro, for appel-lee.
    Before GUDGEL, WHITE and WINTER-SHEIMER, JJ.
   GUDGEL, Judge.

This is an appeal from a portion of a judgment entered in a divorce action. Appellant Patricia Woosnam claims the chancellor erred in his determination of the amount of nonmarital property to be restored to her. No other findings or rulings of the chancellor were preserved for review.

Patricia and Kenneth Ray Woosnam, ap-pellee, were married April 17,1970. At the date of their marriage Patricia owned a house and lot at 3414 Surrey Drive, Owens-boro, against which there was an existing mortgage indebtedness of $9,466.23. It had been purchased for $12,500.00. Kenneth moved into the house after their marriage and the parties resided there together.

Six years later, the Surrey Drive house was sold for $19,175.00, and the entire net proceeds from the sale, after payment of the balance of Patricia’s remaining mortgage indebtedness and expenses, were reinvested in another house at 2118 Carriage Drive. This property was purchased for $23,000.00. The parties resided together in this house until their separation on January 25, 1978. The chancellor found the Surrey Drive property had a fair market value of $13,300.00 on the date the parties married and the Carriage Drive property a fair market value of $37,500.00 shortly after their separation.

The chancellor determined that Patricia had a nonmarital interest in the Surrey Drive property of $3,833.77 on the date of marriage. This sum equals the net equity in the property on that date based on its value of $13,300.00 and a mortgage indebtedness of $9,466.23. He then determined that this sum equalled 28.8% of the property’s value at the date of marriage and awarded her as nonmarital property that percentage of its sales price of $19,175.00 or $5,587.20. The Carriage Drive house was ordered sold with the net proceeds to be applied first in satisfaction of Patricia’s claim for nonmarital property with the balance of the remaining equity to be divided equally as marital property. There was conflicting evidence regarding sums expended for permanent improvements made to both houses, but the chancellor made no findings as to the amount of these improvements and did not consider them in making his award.

Patricia’s sole contention on this appeal is that the chancellor erred in determining the amount of nonmarital property to be restored in her pursuant to KRS 403.190. She relies upon this Court’s decision in Robinson v. Robinson, Ky.App., 569 S.W.2d 178 (1978). In that case we held that if either spouse owns property subject to indebtedness prior to the marriage, the net equity in that property shall be considered nonmari-tal property at the time of separation in the proportion which the net equity at the date of marriage bears to the value of the property at the date of marriage. In making his award of nonmarital property, the chancellor determined in accordance with Robinson that Patricia was entitled to have restored to her 28.8 percent of the value of the Surrey Drive house as of the date of its sale. However, he further ruled that all of the increased value of the Carriage Drive house at the date the-parties separated was the result of “joint efforts” or “team efforts” and was thus marital property. We believe that the latter finding is clearly erroneous and reverse.

I

KRS 403.190(2)(b) specifically exempts as marital property any property acquired in exchange for property acquired before the marriage. Subsection (2)(e) of KRS 403.190 exempts as nonmarital property, property acquired before the marriage to the extent that the increase in value of the property did not result from the efforts of the parties during the marriage. These statutes mandate restoration to the spouse having a nonmarital interest in property owned at the date of marriage, the appreciated value of that same interest in any property acquired in exchange during the marriage, not attributable to the joint efforts of the parties. The only requirement is that the spouse prove that the nonmarital funds have been reinvested in the property acquired in exchange. Turley v. Turley, Ky.App., 562 S.W.2d 665 (1978).

In the case before us the evidence established beyond all doubt that Patricia’s nonmarital funds from the Surrey Drive property were reinvested in the Carriage Drive property.

The chancellor found, however, that the increase in the value of the Carriage Drive house between the date of its purchase and the date of the parties’ separation ($14,-500.00) was attributable to the “joint efforts” or “team efforts” of the parties. We can find no evidence in the record to support this finding. Kenneth argues that his expertise in the real estate market permitted the parties to purchase the Carriage Drive house at less than its market value, but introduced no evidence to establish a value at the date the parties acquired it higher than its purchase price. There was evidence the parties expended sums for permanent improvements, ordinarily attributable to joint efforts, but the chancellor made no findings as to the amount of these improvements. Accordingly, since we find no evidence to support the chancellor’s finding that the appreciated value of the Carriage Drive house was attributable to the “joint efforts” or “team efforts” of the parties, the judgment must be reversed.

Upon remand, the chancellor should first determine, using the formula in Robinson, the value of Patricia’s nonmarital interest in the Surrey Drive property at the date it was sold. Then, a new ratio should be determined with the value of Patricia’s non-marital interest in the Surrey Drive property being the numerator and the value or purchase price of the Carriage Drive property being its denominator. The new ratio should then be applied to the value of the Carriage Drive property at the date of separation to determine the value of Patricia’s nonmarital interest to be restored to her.

The method described above permits the spouse having a nonmarital interest in property at the date of marriage to realize additional appreciation in the value of that interest after reinvestment, in proportion to its value at the date of separation. To hold, as the chancellor did in this case, that the entire increase in value at separation is attributable to joint efforts of the parties, assumes none of the increased value can be attributed to inflationary factors, when in all probability most of the increased value is directly attributable to inflation. The whole rationale for the rule in Robinson is to award the spouse having a nonmarital interest in property his or her proportionate share of any increase in the value of that interest during the marriage.

II

This case is further complicated by the fact that there was evidence as to sums expended for permanent improvements made to both properties during the marriage. As noted previously, the chancellor made no findings as to the amount of these improvements, even though the sums expended for this purpose are properly attributable to the parties’ joint efforts and will constitute marital property. Angel v. Angel, Ky.App., 562 S.W.2d 661 (1978); Sharp v. Sharp, Ky., 491 S.W.2d 639 (1973). Accordingly, upon remand, the chancellor should make specific findings as to the value of these improvements.

A question then arises as to the method by which these improvements shall be taken into account in applying the ratios set out above in determining Patricia’s nonmarital interest in the Carriage Drive property. We believe the answer is obvious.

Since the portion of the sales price of the Surrey Drive property attributable to sums expended for permanent improvements constitutes marital property, their value should be deducted from the sales price prior to applying the proper ratio specified above. Likewise, the value of improvements made to the Carriage Drive house should be deducted from its value at the date of separation prior to applying the proper ratio.

The judgment appealed from is reversed and remanded for further proceedings consistent with this opinion.

All concur.


source: Caselaw Access Project

author: GANT, Judge.

license: Public Domain

text:
    Allen Ray THOMAS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 25, 1979.
    Discretionary Review Denied Oct. 23, 1979.

      Garis L. Pruitt, Ashland, for appellant.
    Robert F. Stephens, Atty. Gen., Nancy S. Marksberry, Asst. Atty. Gen., Frankfort, for appellee.
    Before GANT, HAYES and HOWARD, JJ.
   GANT, Judge.

Appellant was indicted for first-degree assault as the result of a knife attack on a man he saw driving his estranged wife to work in broad daylight. The jury convicted the appellant of third-degree assault, fixing his penalty at one year in jail and a fine of $500.00. The sole ground for reversal brought to this Court was the failure of the lower court to give an instruction on extreme emotional disturbance which, pursuant to KRS 508.040, might have reduced the offense to a Class B misdemeanor with a maximum sentence of 90 days.

All the evidence which might have justified an instruction on emotional disturbance was given by a fellow employee of the appellant who was accompanying the appellant on the day of the incident. This evidence, in the context of extreme emotional disturbance, was that the appellant, when meeting the vehicle in which the victim and the wife of the appellant were driving, made a U-turn in his truck, pursued the car at speeds of 70 miles per hour on a two-lane highway and city streets until he reached the downtown section of Ashland and then at 50 miles per hour, that appellant muttered threats against the victim during the chase, ran several red lights and drove recklessly, and that when the car stopped at the wife’s place of employment he pulled up behind the car, ran to the car and beat on the window with his fist. The appellant testified that he drove normally, ran no red lights, made no threats and merely tapped on the window. His sole defense was that of self-defense.

The position of the appellant is correct when he states that it is of no consequence which witnesses place into evidence the circumstances justifying an instruction on extreme emotional disturbance. Even though the appellant denies such mitigation or defense as drunkenness, insanity, extreme emotional disturbance, etc., if the evidence as a whole, from any source, warrants an instruction embodying such a defense or mitigation, that instruction must be given. Jewell v. Commonwealth, Ky., 549 S.W.2d 807, 812 (1977).

In order to be entitled to the instruction requested by appellant there must be two separate factors presented by the evidence. First, there must be evidence of extreme emotional disturbance. This can be deduced from the conduct of the defendant and not merely by his own testimony. See Jewell, supra. Indeed, under the Fifth Amendment privileges of the Constitution of the United States, the defendant need give no testimony.

Second, there must be a reasonable justification or excuse under the circumstances as the defendant believes them to be. It is in this requirement that appellant must fail. There is no evidence of any justification or excuse whatsoever, much less a reasonable one. The situation itself provides none. In the absence of other evidence, the mere fact that a woman is driving down a public road in broad daylight with a man other than her husband could hardly constitute justification or excuse for a knife attack upon the man. In the instant case the evidence was that the wife and appellant had been estranged for some time. There was no evidence of any reconciliation attempt — in fact, they were to meet that day to divide personal property. There was evidence that the appellant had another girlfriend. No evidence was introduced of any misconduct between the wife and the victim which was known to the appellant.

Where the situation itself provides no justification or excuse and no other evidence is presented which would give rise to a subjective determination of the situation which would furnish a justification or excuse, the court would be remiss in allowing speculation by the jury. The reasonableness of an excuse or justification must ordinarily be submitted to the jury. When there is no excuse or justification, there is nothing to submit. This case is readily distinguishable from the case of Ratliff v. Commonwealth, Ky., 567 S.W.2d 307 (1978), in which there was considerable evidence from outside sources such as psychiatrists concerning the emotional condition of the appellant.

The judgment is affirmed.

All concur.


author: LESTER, Judge.

text:
    Rodney SMITH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 25, 1979.
    Discretionary Review Denied Oct. 23, 1979.

      Jack Emory Farley, Public Advocate, C. Thomas Hectus, Asst. Public Advocate, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., John F. Zink, Asst. Atty. Gen., Frankfort, for appel-lee.
    Before HOGGE, LESTER and WIL-HOIT, JJ.
   LESTER, Judge.

Rodney Smith appeals his judgment of conviction for first-degree robbery which imposed a sentence of ten years imprisonment.

Appellant purchased an automobile tire from an operator of a service station, one Elroy Griffin, in McKinney, Kentucky, for the purchase price of $43.95. Some three months later, while traveling through Georgia, the tire blew out and appellant’s girlfriend, Virginia Popperwell, the driver at the time, pulled to the side of the road. Upon returning to McKinney, Smith took the faulty tire, still mounted on the rim, to Griffin in hopes of receiving an adjustment. Griffin removed the tire from the wheel and, upon inspection of the interior, made a determination that it had in fact ruptured but thereafter that someone had driven on it after it had flattened. The service station manager then called the tire distributor who advised that if the tire had only blown out, then Smith would be entitled to almost all of the purchase price, but since it had been “run flat”, he should only be refunded $22.50. Griffin related the contents of the discussion to appellant and gave him two ten dollar bills, two ones and two quarters. At this point, Smith grabbed the rim, became very angry, shoved the two quarters in Griffin’s mouth and threw the wheel to the floor and about the station several times. It is unclear who became physical in the first instance, but Griffin grabbed Smith around the torso, pinning his arms to the side of his body, and evicted him from the building. We cannot determine if appellant was thrown to the ground or merely slipped because of precipitation, but in any event, as he came up from the ground, he pulled a 380 automatic pistol from his pocket, cocked it so that a round was in the chamber, reentered the service station pointing the weapon at Griffin and demanded more money. Griffin complied by giving Smith an additional $22.00. Thereupon, appellant went outside, threw the rim several more times, once damaging an ice cream box, and stepped back inside the building at which time Griffin told him he would give him a new tire. Smith left for Danville.

Later the same day, appellant returned to the service station and without further incident, picked up a new tire, returned $22.00, left and went to his home where he was subsequently arrested. The next day, Smith’s brother returned the new tire to Griffin.

At the trial, appellant admitted his basic actions in connection with the incident, including the flourishing of the cocked weapon. However, his explanation for using the weapon at all was that while Griffin had his body pinned, an employee of the station, Foster Azbill, was pulling out his hair and that the gun was necessary for his self-defense. The court gave a self-defense instruction, but Smith’s prime contention is that it was error not to give an instruction to the effect that he was acting under a “claim of right to the property,” which is a defense to a prosecution for theft. KRS 514.020. In other words, since the commission of or the element of theft has been incorporated into the robbery statute then, Smith argues, so also should the defenses to theft be applicable.

The indictment herein was one for violation of KRS 515.020, which basically proscribes, for the purposes of this appeal, the use of a deadly weapon while in the course of committing a theft, and not theft by unlawful taking pursuant to KRS Chapter 514. The court declined the requested instruction, citing the commentary to the penal code under the robbery section to the effect:

There was some indication under former law that a person could not commit robbery if he forcibly took property from another under some claim of right. See Thompson v. Commonwealth, 13 Ky. 916, 18 S.W. 1022 (1892). It is intended in this chapter that a taking of property by force or threat of force against a person will constitute robbery even though the offender may have some claim to the property.

In its present form, KRS 515.020 is the same as the final draft thereof presented to the legislature. So also is the commentary identical. See Ky.Penal Code, Final Draft (LRC 1971), Commentary to § 1606 at 180.

We are aware that the penal code is to be liberally construed to effect the objects of the law, KRS 500.030, and that we may use the commentary as an aid in interpreting the code. KRS 500.100. Our present statute is of an entirely new type as compared to former KRS 433.140, and we must look to legislative intent. In spite of the language contained in the commentary to KRS 500.100 expressing the view that what the statutes say is the authoritative statement and the commentary is not, with the latter being only evidence of the considerations that went into the drafting of the statutes, the Supreme Court has written:

At the time the 1974 legislature enacted the penal code it had before it the commentary which explained the scope of this section. In the absence of the legislature having made any change in the language of the section we must conclusively presume that it assigned to it the meaning and effect attributed to the language by the 1971 commentary, (emphasis added). Kennedy v. Commonwealth, Ky., 544 S.W.2d 219, 221 (1977).

We are not unmindful of Professor Brickey’s view contained in her Kentucky Criminal Law at § 15.04 when she said:

However, both degrees of robbery are defined in terms of use or threat of force with intent to accomplish a theft during the course of committing a theft. If the elements of theft are incorporated into the offense of robbery, it would seem only logical that a defense which negates the requisite intent for commission of a theft offense would also be incorporated into the robbery provisions. It is a defense to a prosecution for theft that the defendant acted under a claim of right. The incorporation argument is compelling.

Professor Brickey goes on and comments that in order to eliminate the claim of right defense to robbery, the drafters of the Michigan Revised Criminal Code specifically so provided. See Michigan Proposed Revised Criminal Code (1967) § 3310, Commentary at 259-60. Since the Kentucky Penal Code goes to great lengths throughout its various sections to extensively define many of its terms and indulges in great detail on many subjects, we regard the failure to include the specific elimination of the claim of right defense in the robbery statute to be a serious omission on the part of the drafters, or maybe even the true intent of the legislature; but since the commentaries have been elevated almost to the dignity of a statutory enactment, we have no choice but to affirm the circuit court as to its denial of the requested instruction.

The nonexistence of a claim of right is not an element of theft, but rather the existence of such a claim is a defense to a charge of theft. The legislature has chosen to provide no such defense to a theft which constitutes a robbery.

We make one observation in regard to the objects to be accomplished by the theft and robbery laws. Assuming that we will always have thieves among us, we assume the legislature took the position that if one steals he would be guilty of a class A misdemeanor or a class D felony, but if one steals and uses a weapon in so doing, then the penalty will be far greater, thus reducing potential risks to the lives of victims.

Appellant’s attempt to equate the provision of KRS 501.070(1)(a) with his requested instruction upon the defense of "claim of right” to the money taken has no merit in light of what we have said above.

The final assignment of error concerns itself with the failure of the trial court to instruct the jury on wanton endangerment or menacing. The transcript of evidence and the record contain no objection as to this point and no offered instructions nor any motion, so the trial court had no opportunity to pass upon appellant’s position. The most succinct statement as to failure to preserve an instruction error is found in Hopper v. Commonwealth, Ky., 516 S.W.2d 855, 857 (1974):

Elimination of the possibility of this unreasonable delay in attacking the instructions is the very heart of the goal achieved by RCr 9.54(2), as amended. It is now the duty of the accused to assure himself that the jury is properly instructed at the time of submission. If the instructions do not meet with his approval, then he must timely offer other instructions or make known to the trial court his objection to those given, together with the grounds supporting his objection. Hopper failed to observe the mandate of RCr 9.54(2). Consequently, he did not preserve for appellate review any objection to the instructions given by the trial court.

See also Mason v. Commonwealth, Ky., 565 S.W.2d 140 (1978).

The judgment is affirmed.

All concur.


author: COOPER, Judge. LESTER, Judge,

text:
    Paul WRIGHT and Uninsured Employers’ Fund, Appellants, v. Ronald Alton FARDO and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    May 25, 1979.
    Discretionary Review Denied Oct. 23, 1979.

      A. J. Jolly, Newport, for appellant, Wright.
    Michael Richardson, Uninsured Employers’ Fund, Frankfort, for appellant, Uninsured Employers’ Fund.
    Kevin E. Quill, Newport, for appellee, Fardo.
    Before COOPER, LESTER and VANCE, JJ.
   COOPER, Judge.

Paul Wright, a full-time vocational instructor, contracted for various home improvement jobs in his spare time. Ronald Fardo, a full-time railroad employee, occasionally aided Wright in the performance of electrical work. On January 3, 1977, the Workmen’s Compensation Board awarded Fardo compensation for an injury he sustained while helping Wright wire two rooms. On September 23, 1977, the Campbell Circuit Court affirmed the Board’s finding of coverage. Wright, in this appeal, contends that he and Fardo were not in an employer-employee relationship within the meaning of the Workmen’s Compensation Act. Wright also argues that in the event we agree with the circuit court as to his status of an employer under the Act, that the Board and the court erroneously computed Fardo’s average weekly wage.

Paul Wright held a full-time position as a machinery vocational instructor at the Alexandria Vocational School twelve months a year. As a sideline, he took on home improvement jobs which involved carpentry, masonry and electrical work. Wright did not advertise nor maintain an office in connection with this sideline, but depended on word of mouth to inform the community that he engaged in this extra work. Wright required payment by. the hour for the' home improvement work, plus what he spent for materials. For these efforts, in addition to his teaching, he grossed $3,000.00 to $4,000.00 a year.

When Wright had an involved electrical project, he sometimes sought the aid of a helper. Wright generally called on Ronald Fardo for help, but Ronald’s brother, Ronald’s father and Johnny Haines had also worked with Wright. All that Fardo knew of electrical work he had learned from Wright.

Fardo had a full-time job with the Baltimore and Ohio Railroad as a car inspector. Fardo’s part-time work with Wright, which stretched over a ten year period, did not occur with regularity, with the exception of one summer, and even then Fardo did not work every day.

During the Christmas vacation of the vocational school, Wright undertook to wire two new rooms in a neighbor’s house. After a couple of days, Wright realized that he would need assistance so he got in touch with Fardo. Fardo appeared on the job site on December 28, 1974. Although the two did not discuss salary, Wright always paid Fardo five dollars an hour, the same hourly rate that Wright charged for his own services.

Wright and Fardo had worked on the installation for several hours when they started to run a by-pass for a water heater. Wright supplied Fardo with a wrench and told him to climb up on a ladder and hook the entrance cable into the wires coming from an outside pole. Wright then went into the basement to switch over from the old service box to the new service box so that they could make the change as quickly as possible. While Fardo proceeded to put in a split volt securing the entrance cable to the line wire, he made contact with the wrench to a live wire. Due to the ensuing shock, Fardo fell from the ladder and landed with his left leg twisted under him.

The Board found that Fardo had suffered a 20% permanent compensable disability arising out of his employment by Wright. The Board used KRS 342.140(5) to compute Fardo’s average weekly wage. KRS 342.-140(5) states that,

[w]hen the employe is working under concurrent contracts with two (2) or more employers and the defendant employer has knowledge of such employment prior to the injury, his wages from all such employers shall be considered as if earned from the employer liable for compensation.

Applying this formula, the Board determined that twenty-seven dollars was Far-do’s average weekly wage for his part-time work, which the Board added to $240.00, Fardo’s average weekly wage at the Baltimore & Ohio Railway Company. The Board awarded Fardo compensation for his total disability from December 28, 1974 to October 9, 1975.

The Campbell Circuit Court modified the Board’s award by excluding Fardo’s average weekly wage as a railroad employee, on the basis that KRS 342.650(4) exempted coverage of the disability of railroad employees. The court further changed the Board’s award by computing Fardo’ average weekly wage while employed by Wright as if Fardo had worked a full five day week at five dollars an hour which came to an average weekly wage of $200.00.

Fardo supports the existence of a covered employer-employee relationship by pointing out that the Act does not specifically exclude employment pf the sort involved here by a person such as Wright, and by contending that a consideration of the factors set out in Ratliff v. Redmon, Ky., 396 S.W.2d 320 (1965), weighs in favor of Fardo as an employee rather than as an independent contractor.

KRS 242.630 gives the coverage of employers; KRS 342.640 lists the coverage of employees; and KRS 342.650 contains those employees exempt from coverage. The wording in the coverage sections has a broad sweep. KRS 342.630(1) mandatorily makes subject to the chapter “[a]ny person, other than one engaged solely in agriculture, that has in this state one or more employes subject to this chapter.” In KRS 342.640(1), the employees subject to the chapter encompasses,

[ejvery person, including a minor, whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, express or implied, and all helpers and assistants of employes whether paid by the employer or employe, if employed with the knowledge, actual or constructive, of the employer.

KRS 342.650 on the other hand provides for a few narrow exceptions not relevant here. However, despite the apparent inclusiveness of the language of coverage and exclusion, the Supreme Court in Fields v. Twin City Drive-In, Ky., 534 S.W.2d 457 (1976), exempted the independent contractor from responsibility under the Act, because despite the far reaching language of the coverage sections, the legislature did not indicate an intention to depart from the traditional notion that an independent contractor did not come within the definition of employee.

The statutes lend no support to Wright’s claim that he did not engage in an employment situation encompassed by the Act. Numerous states have eliminated coverage of casual employment by legislation. Larson, in his treatise, Workmen’s Compensation Law § 51.11 (1978), points out that these states have built in the casual employment exception for administrative reasons “[s]ince the keeping of accounts and payroll records, the systematic provision of insurance, and the proof of past earnings all assume regular and sustained employment.” Wright has made an argument for noncov-erage similar to the rationale behind the casual employment statutes. The Kentucky Workmen’s Compensation Act does not contain a provision for exclusion of casual employment. With the 1973 revision of the Act, the legislature repealed the minimum number of employees requirement and extended application of the Act to an employer with one employee. If a trend can be gleaned from the General Assembly’s inaction and action, the progression has proceeded in favor of inclusion of more work relationships within the ambit of the Act.

Wright forcefully asserts policy reasons as to why the Act should not cover a person who works a sideline and who occasionally asks another, also regularly employed elsewhere, for assistance on a specific task. Wright urges that if coverage extends to this type of arrangement, it will curtail social intercourse between neighbors and deprive an individual negligently injured of his common law tort remedies. Wright also emphasizes the practical problems of obtaining insurance and passing the cost of the insurance on to the consumer. While Wright has enumerated factors which admittedly militate against coverage, these well taken points better address themselves to why the legislature should amend the Act than to how we should decide this case in light of the language of the current law. As Justice Lukowsky commented in his concurring opinion in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, 285 (1978),

[t]he people of this Commonwealth, acting through their duly elected legislators, have the right to select an illogical, expensive or even foolish menu of workmen’s compensation. This court is not a maitre d’hotel with power to change the menu on other than constitutional grounds.

KRS 342.630 and KRS 342.640 contain the sole expression of the employment relationship necessary for application of the Act apart from the exceptions, not relevant to coverage here, listed in KRS 342.650. KRS 342.630 and KRS 342.640 offer little in the way of explanation. Basically KRS 342.630 defines an employer as one who has an employee while KRS 352.640 defines an employee as one who works for an employer under a contract of hire. These statutes do not reach the independent contractor or the joint venturer because from the inception of workmen’s compensation laws, the independent contractor and the joint venturer have been recognized as statuses outside of the employer-employee relationship embraced by the Workmen’s Compensation Act. See Fields, supra.

Wright, however, urges that Crush v. Kaelin, Ky., 419 S.W.2d 142 (1967), stands for the proposition that we can determine coverage of workmen’s compensation by analyzing whether the spirit of the Act encompasses each employment. In Crush, supra, Crush hired Kaelin, a regular employee of a building contractor, to build a vacation cottage on a lot Crush owned. Kaelin sought out two other carpenters employed by his contracting firm to help with the work. The three carpenters worked in their off-time and Crush paid them by the hour. Crush, a salesman, did not have carpentry experience. Kaelin received an injury while laboring for Crush, and the suit which followed raised the issue of the applicability of the Workmen’s Compensation Act. The Court acknowledged that the breadth of the employer definition section then in effect, KRS 342.005, could arguably include Crush, but the Court concluded that “the social objectives of workmen’s compensation in shifting the risk of injury from the workman to the employer, and thence to the consuming public” did not reach “the domain of an employer’s private household affairs.” Crush, supra, at 145. Although we appreciate that Wright has asked that we look to the social impact of determining him an employer under the Act, still the result he requests intrudes into the province of the legislature. Crush, supra, rested on the premise that apart from technical distinctions, Crush was a consumer, not a producer. Once again, the court had firm ground on which to stand, because even though it took into account the policy behind workmen’s compensation, a precept thereof is that the employer carry on a business that provides the occasion for the employee’s injury. Larson, supra § 50.21. Crush did not have a cottage construction business. In the case before us, Wright engaged in a trade, although not on a full-time basis. We know of no judicial exception to coverage of workmen’s compensation brought on by the infrequency of the employer’s business or by the difficulty of obtaining workmen’s compensation insurance at a rate profitable to the business. So, within the present statutory and judicial framework, Fardo was Wright’s employee unless Fardo meets the criteria of an independent contractor or joint venturer.

It does not take a thorough inquiry into the circumstances of this case to detect that Fardo neither meets the test of an independent contractor nor of a joint ven-turer. Wright had taught Fardo the electric wiring trade by instructing him on the job. Wright procured the home improvement jobs. He only decided whether he needed Fardo’s aid after he had begun an electrical project. Although Fardo received the same hourly rate as Wright, Wright determined whether Fardo working at all. When Fardo did work for Wright, Fardo functioned to enable Wright to finish a wiring job too big for Wright to handle by himself. Fardo served as a helper to Wright and followed Wright’s instructions. We can draw no other inference than that Fardo was an employee of Wright on the day of the accident. Chambers v. Wooten’s IGA Foodliner, Ky., 436 S.W.2d 265 (1969); Wallins Creek Lumber Co. v. Blanton, 228 Ky. 649, 15 S.W.2d 465 (1929).

We have decided that coverage exists by following the plain wording of the coverage sections of the Act and the reasoning of the case law which pertains to coverage. However, our inclination may have been against coverage if coverage depended upon exact application of a particular provision of KRS 342.140 concerning the computation of compensation. The trouble that we have in connecting coverage to a method of compensation lies in the directive of KRS 342.-140 that the compensation computation have as its basis the employee’s average weekly wage. The employment relationship of Fardo to Wright did not occur weekly nor did Fardo or Wright have an expectation that they would work together any less sporadically than they actually did. KRS 342.140 operates on the assumption that the employment either has continued over a period of weeks or that the employer and employee contemplated that the employment would durate for a number of weeks. Yet, the specific purpose of KRS 342.140 deals with the computation of compensation, not coverage of the Act. Therefore, we must apply the coverage sections which require that Wright incur the responsibility of compensation for the occupational disability of his injured employee, Fardo. Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, 283 (1978).

Larson, in his treatise on workmen’s compensation, discusses the problem of setting the wage basis for an employee with a full-time job who gets injured while performing in another isolated employment. Larson proposes that such an employee’s compensation should reflect his future loss of earnings in his regular employment. Of course, the context in which Larson views the situation takes for granted that an insurance company will bear the cost of compensation and in turn spread the loss to the industry. Larson has not envisioned absorption of the cost of compensation by an employer who, by the very nature of his business, could not practically incorporate the expense of insurance coverage into the price he charged for the services of his business. Larson, supra, § 60.21. It probably would never even dawn on this employer that his occupation required workmen’s compensation. However, we need not address the question of whether Fardo’s salary with the railroad should be included in determining his average weekly wage, because we agree with the circuit court that his pay as an employee of the railroad does not enter into the calculation. KRS 342.-650(4) exempts railroad employees from coverage of the Act. Although Holman Enterprise Tobacco Warehouse v. Carter, Ky., 536 S.W.2d 461 (1976), involved a somewhat different aggregation question, the Court at p. 463 cited the following quotation from 99 C.J.S. Workmen’s Compensation § 294 with approval:

Employments not within act, or not insured. In case of concurrent employments, each employment considered must be such as would come within the scope of the act; and where in his employment by one employer the employee is not covered by compensation insurance, his salary therein will not be included with his salary in another employment with another employer, in which he is covered by such insurance, in determining the basis of the payment of compensation for an injury in the latter employment.

Thus, KRS 342.140(5), the concurrent employment section, does not take effect under the authority of Holman Enterprise Tobacco Warehouse, supra.

While the court below correctly ruled KRS 342.650(4) applicable, it erred in computing Fardo’s average weekly wage as if he worked for Wright full-time at $5.00 an hour. As we have already noted, Fardo had no reason to anticipate that he would work for Wright other than intermittently. Furthermore, Fardo knew by actual experience that he would work for Wright erratically. It appears to us that the facts which transpired and not a fiction should form the basis for arriving at Far-do’s average weekly wage. Fardo’s average weekly wage should be calculated by following KRS 342.140(l)(d) which states that,

the average weekly wage shall be the wage most favorable to the employe computed by dividing by thirteen (13) the wages (not including overtime or premium pay) of said employe earned in the employ of the employer in the first, second, third, or forth period of thirteen (13) consecutive calendar weeks in the fifty-two (52) weeks immediately preceding the injury.

The judgment is affirmed in part and reversed and remanded in part with directions that the circuit court return the case to the Board for the purpose of awarding compensation after it determines the average weekly wage according to KRS 342.140(l)(d).

VANCE, J., concurs.

LESTER, J., dissents.

LESTER, Judge,

dissenting.

I would agree with my brothers as to the method of computation of workmen’s compensation which they invoked in this appeal if I agreed that the “after hours handy man”, “the occasional employer” or merely the “odd job entrepreneur” was within the contemplation of the legislature when it enacted KRS 342.640(1) without an exclusion pertaining to the above type of worker. In Fields v. Twin City Drive-In, Ky., 534 S.W.2d 457 (1976), the Supreme Court summarily removed independent contractors from coverage under the Workmen’s Compensation Act and I would do the same with regard to an employee such as Ronald Far-do.

This Court directed counsel to furnish evidence as to whether workmen’s compensation insurance coverage could be had for an employee such as the appellee herein. The documents presented to this Court indicated that a minimum of $500 per year would be the premium and if placed in the Assigned Risk Plan, there would be a surcharge of 8%. To emphasize the difficulty of acquiring such coverage, I quote the Assistant Deputy Commissioner, Property and Casualty Division, Department of Insurance, to the effect that:

I find it hard to conceive of an insurance company writing a policy when they do not know who the employees will be, what their remuneration will be, nor what the hazardness of the employment will be.

I further invite attention to KRS 342.790 which provides that the Attorney General can institute an action against any “employer” who falls within the provisions of the Workmen’s Compensation Law and fails to acquire proper insurance when the Uninsured Employers’ Fund has had to pay a claim. Under the facts of another case, it is conceivable that an employer such as Wright could be cast into the role of a bankrupt when we recall that compensation must be paid during the term of disability.

I do not believe the legislature intended to include the casual worker of the part-time employer and therefore, I respectfully dissent.


author: HOWERTON, Judge.

text:
    Clyde WATKINS, Jr., Appellant, v. Talbert TURNER, Jailer, Breathitt County, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Aug. 17, 1979.
    As Modified Sept. 7, 1979.
    Jack Emory Farley, Public Advocate, Com. of Ky., William M. Radigan, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Nancy S. Marksberry, Asst. Atty. Gen., Frankfort, for appellee.
    Before HOGGE, HOWERTON and VANCE, JJ.
   HOWERTON, Judge.

Watkins, a hopeless incompetent, incapable of standing trial in the foreseeable future, appeals from an order denying his petition for a writ of habeas corpus. Both parties now agree that it was error to deny the petition. We therefore reverse the judgment of the Breathitt Circuit Court and remand the case to it for further proceedings as required by KRS 504.040(5)(c).

Watkins was indicted for murder on March 21, 1977. He was examined at the Comprehensive Care Center in Jackson, Kentucky, and found to be incompetent to stand trial. Watkins was transferred to the Forensic Psychiatry Unit at Central State Hospital in Louisville which recommended that Watkins be hospitalized at Eastern State Hospital on a 360-day commitment. Watkins was released from Eastern State Hospital in July 1978, and returned to the Breathitt County Jail. A jury found Watkins incompetent to stand trial and recommended additional treatment in November 1978, but the hospital refused to readmit him. Watkins did spend 10 additional days at the Forensic Psychiatry Unit in December 1978, where it was determined that his condition had deteriorated. No other commitment proceedings have been initiated against Watkins, and he remains incarcerated in Breathitt County.

KRS 504.040 was amended (effective June 17, 1978) to conform to the “reasonable time” requirement established in Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). An incompetent may not be held indefinitely without a trial and the opportunity to clear himself. The changes in the statute are procedural and afford additional due process and equal protection for incompetents. KRS 504.-040(5)(c) now provides:

If the court finds the defendant incompetent to stand trial and further finds that there is not a substantial probability of defendant attaining competency to stand trial in the foreseeable future and further finds that there are reasonable grounds to believe that the defendant will cause injury to himself or others if not immediately restrained, the court shall order the dismissal of the proceedings against the defendant and the release of the defendant from custody; provided such order of dismissal and release shall provide that the effective date thereof be stayed for a period of not more than ten (10) days to allow proceedings to be initiated against the defendant for examination and possible detention pursuant to the provisions of KRS Chapter 202A or 202B.

The record indicates that the trial judge has found Watkins to be a dangerous and violent man, and if released, there is a strong probability that he will engage in other violent crimes. It is therefore proper and necessary for the trial court to proceed according to the statute and initiate proceedings for a permanent-type commitment of Watkins to a state mental institution.

Watkins’ petition also requested a dismissal of the indictment. The issue was raised in the briefs on this appeal, but the question has not been fully considered by the trial court or by counsel for both parties. We therefore decline to decide this issue at this time.

The decision of the Breathitt Circuit Court is reversed, and the case is remanded for further proceedings consistent with this opinion.

All concur.


text:
    TRIMBLE COUNTY FISCAL COURT, Dallas Moore, Magistrate, Orvile Smith, Magistrate, Ivan Louden, Magistrate, and Morris Garrett, Magistrate, Appellants, v. TRIMBLE COUNTY BOARD OF HEALTH, Clyde Greenwood, County Judge, and Robert Moore, County Court Clerk, Appellees.
    Court of Appeals of Kentucky.
    Sept. 14, 1979.

      James F. Thomas, Newcastle, Bobby K. True, Bedford, for appellants.
    E. Irene P. Long, Bedford, for appellee Trimble County Bd. of Health.
    Hamilton, McClellan, Croley & Fendley, Bruce R. Hamilton, LaGrange, for appellee Clyde E. Greenwood.
    Before HOGGE, HOWERTON and VANCE, JJ.
   HOWERTON, Judge.

Dallas Moore, Orvile Smith, Ivan Louden, and Morris Garrett are magistrates in Trim-ble County, Kentucky; and, together with the county judge, they constitute the fiscal court. The magistrates appeal from a writ of mandamus issued by the Trimble Circuit Court ordering them to set a health tax rate of four (4) cents per $100 assessed property value. The rate had been established and requested by the Trimble County Board of Health, pursuant to KRS 212.725. The judgment also directed the appellee, Robert Moore, as county court clerk, to prepare the 1978 tax bills with the four-cent levy. Moore has not appealed from that judgment. The action was dismissed as to the appellee, County Judge Clyde Greenwood. As a member of the Board of Health and as chairman of the fiscal court, he supported the four-cent levy. Finally, the magistrates were ordered to personally pay the cost of this action which had been initiated against all of the parties herein by the plaintiff-appellee, Trimble County Board of Health.

On April 14, 1978, the Board of Health determined that the previous levy of 3.1 cents was insufficient to produce the revenue required to meet the public health needs in the county. A resolution was unanimously passed imposing a health tax rate of four cents, the maximum allowed by law. Only four of the seven members were present at the meeting. The resolution was approved by the Kentucky Department for Human Resources on May 1, 1978. The resolution was copied on a printed form for such purposes, and the document was signed by each of the four members who had approved its passage as well as the appropriate officer for the Department for Human Resources. However, the certification had not been completed by the Board secretary at the time the document was forwarded to the fiscal court.

The fiscal court met on September 28, September 30, and October 9, 1978, and each time the magistrates refused to set a rate higher than 3.1 cents. The Board of Health filed this action on October 21,1978.

The magistrates have presented several allegations of error. We will not attempt to list each of them, but we will consider all of them in the order in which they were argued.

First, we find no reversible error in the trial court’s refusal to permit the magistrates to depose the members of the Health Board. Even if we determined it would be proper for the magistrates to delve into the motives and factual reasons for the decision to raise the rate to the maximum amount of four cents, we cannot say that the trial judge abused his discretion in denying the request. CR 26 and CR 30. The court had ample reasons to deny the request on the grounds of relevancy, timeliness, delay in the proceedings, expense, and because the information desired was either public record, stipulated, or offered to be provided by the Board of Health at the court hearing, which was already scheduled.

The magistrates next complain that the trial court had no authority to order the county court clerk to place a four-cent health tax rate on the tax bills, since they had not approved the rate. The clerk was made a party and indicated that he would prepare the tax bills according to directions received from the circuit court. KRS 68.-100 provides for tax levies to be adopted by the fiscal court, but if the trial court has the authority to require the fiscal court to levy the health tax rate, and we conclude that it does, then requiring the clerk to prepare the bills merely recognizes that what has been ordered to be done will be done.

The magistrates argue that the court costs should have been assessed against the fiscal court rather than against them individually, citing Hogan v. Glasscock, Ky., 324 S.W.2d 815 (1959). Hogan was an action by taxpayers to recover school funds expended for attorney fees and court costs in an action against the school board members. The case holds that the members have implied authority to employ an attorney and expend school funds to defend such actions. If the action does not concern individual responsibilities or malfeasance, a defense is necessary to accomplish the purpose for which the board was created.

In this case, the action was to require the members to perform a duty required by KRS 212.725. The court determined that the magistrates had failed to carry out. their statutory duty, and the record is void of any reason for their refusal to act. The validity of the Board’s resolution was never questioned until after the suit was filed. Good faith by the magistrates is certainly questionable due to their refusal to follow the advice of the county attorney, and because of their publication of a newspaper ad designed to create a public controversy with the tax increase.

We find a genuine distinction between the situation in Hogan, supra, and in this case. We cannot say that the trial judge abused his discretion in requiring the magistrates to pay the cost. KRS 453.040 and CR 54.04. See also, Mooney v. Denhardt, Judge, 144 Ky. 263, 137 S.W. 1059 (1911), authorizing the imposition of costs against a public official, and see Board of Aldermen of City of Ashland v. Hunt, 284 Ky. 720, 145 S.W.2d 814 (1940), concerning the effect of good faith.

The magistrates’ most troublesome and serious allegation is that it was error for the trial court to issue the mandamus against them. The argument is not based on the appropriateness of mandamus or the power of the court. Instead, they attack the validity and enforceability of the Board’s resolution on three grounds. First, they argue that the resolution was not “duly certified” as is required by KRS 212.-725. Secondly, they contend that the resolution was premature, since it was considered and passed before the Department of Revenue certified the total amount of assessments for Trimble County in 1978. Finally, they allege that the resolution was not properly adopted by a majority of the members of the Board of Health.

KRS 212.725 provides that the Board of Health shall determine the health needs in the county, and if adequate funds are not otherwise appropriated, it shall establish a tax rate to meet the financial requirements. The Department for Human Resources must approve such action by a health board, and when such is done, a certified copy of the resolution is forwarded to the fiscal court which is then required to include the rate in the county’s tax levy, along with levies for school districts, fire districts, and other taxing jurisdictions. The appropriate part of the statute reads, “The fiscal court shall upon receipt of a duly certified copy of said resolution include in the next county ad valorem tax levy said public health tax . . . (Emphasis added.)

The resolution was passed on April 14, 1978. The four members present and voting signed the copy of the resolution. No official certification was added to any circulated copy until October 21, 1978, when the petition for mandamus was filed. The resolution was approved by the Department for Human Resources on May 1, 1978, and a copy of the form was mailed to Judge Greenwood on May 5, with directions to forward it to the fiscal court. The trial judge made no finding as to when the county court clerk received the copy on behalf of the fiscal court, but he did find that it was received prior to the time of the meetings when the tax rates would be adopted.

Failure to “duly certify” can be a fatal error. In Miracle v. Commonwealth, Department of Highways, Ky., 467 S.W.2d 757 (1971), an appeal to the circuit court was dismissed in a condemnation proceeding for failure to file a “certified” copy of the county court’s judgment. The method for perfecting the appeal was statutory, and strict compliance was necessary when the issue was properly raised. Certification was necessary for the court to acquire jurisdiction, and the certification would show the order book and page number and that the judgment had been officially entered in the records and signed by the county judge.

Miracle can be distinguished from this case, however, just as it was distinguished from Ennis v. Adkins, 274 Ky. 121, 118 S.W.2d 175 (1938). The need for “certification” in Ennis was to assure the sheriff of the authenticity of an order. Jurisdiction was not involved. An “attested” copy of a court order was delivered to the sheriff for publication. The court found the argument that the copy was not “certified” to be frivolous, and concluded that the attested copy satisfied the requirement of the statute which specified a certification.

We conclude that authenticity is all that was intended or required by the legislature when it adopted KRS 212.725. No one to this day has questioned the fact that the resolution was authentic. The magistrates merely took it upon themselves to determine an appropriate health tax rate. The omission of the certification could have been corrected at any time, if the county attorney, or anyone, had notified the Board of the deficiency. The Board should have been notified, if anyone intended to object to the resolution on the basis that it was not “duly certified.” Adding strength to this point is the case of Holmes v. Hume, Ky., 424 S.W.2d 824 (1968). Holmes involved a mandamus to compel a fiscal court to levy a library tax. It was decided that a fiscal court cannot arbitrarily deny or ignore a petition filed with it, and if technical deficiencies are found to exist, the court is obligated to inform those who filed the petition. The mandamus was issued, and the case was affirmed.

The magistrates’ argument concerning the lack of certification can be rejected on the basis of estoppel or waiver. The requirement for certification is for proof of authenticity rather than a jurisdictional necessity. Authenticity has not been questioned, the document is in fact genuine, and the lack of certification could have been corrected with reasonable notification. We will not support the objection under these circumstances at this time.

The magistrates’ argument that the resolution was adopted prematurely is based on KRS 133.185, which provides that no tax rate shall be determined before the county assessment is certified by the Department of Revenue. The point might have had some merit, since no new resolution was passed by the Board setting or ratifying the rate after the assessments were certified in September. We decline to consider the issue, however, since it was not presented to the trial court. It cannot be raised for the first time on this appeal.

The final argument challenging the validity of the resolution is that it was not legally adopted by a majority of the Board members. The Board has seven members. The resolution was voted on by four people. The allegation is that one of the voters was no longer a member.

Virginia Harmon, a voting member, became a trustee for the City of Bedford in January, 1978. The office is incompatible with membership on the Board of Health. KRS 61.080. KRS 61.090 provides that “the acceptance by one in office of another office or employment incompatible with the one he holds shall operate to vacate first.” The magistrates argue that Mrs. Harmon vacated her position, and the resolution was never legally passed.

We conclude, however, that Mrs. Harmon did not automatically forfeit and vacate her Board membership, and that at the very least, she was a de facto member and was entitled to perform her duties while in possession of the office.

KRS 61.090 does not function automatically to oust one from office. If the office is not voluntarily vacated or abandoned, some notification and ouster proceedings are necessary. Commonwealth ex rel. Steller v. Livingston, 171 Ky. 52, 186 S.W. 916 (1916); Board of Education of Wurtland Independent School District v. Stevens, 261 Ky. 475, 88 S.W.2d 3 (1935); and Commonwealth ex rel. Breckinridge v. Winstead, Ky., 430 S.W.2d 647 (1968). Mrs. Harmon was never notified of a problem of incompatibility, and no ouster proceedings were ever initiated against her. She completed her term as a Board member without other complications.

Mrs. Harmon was at least a de facto officer, and her vote and presence were properly counted. Livingston, supra, and Winstead, supra. See also, Petrey v. City of Hazard, Ky., 346 S.W.2d 534 (1961). A de facto officer is “one who is in the actual possession and administration of the office, under some colorable or apparent authority, although his title to the same ... is in reality invalid, or at least formally questioned.” Black’s Law Dictionary, 1235 (4th ed. 1951). The purpose of the creation of a de facto officer is to prevent invalidation of all official acts which occur while the officer is holding an office. If a de facto officer cannot constitute a quorum or perform official duties, then such appears to negate the purpose of such office.

The magistrates cite Board of Education of McCreary County v. Nevels, Ky.App., 551 S.W.2d 15 (1977), as authority for their contention that the vote of a de facto officer may not be counted. Nevels is distinguishable in several ways, and it is inapplicable to this case. Two votes by the same de facto school board member were considered. At the time of the first vote, which was to renew Nevels’ contract as superintendent, an election contest had been initiated involving the member, Vina Brown. It was determined that their vote was not essential to the contract renewal. The opinion also concluded, however, that if her vote had been needed, and since the election contest was pending and the de facto member, Mrs. Brown, ultimately lost, Nevels’ renewed position as superintendent would have been no better than de facto. Mrs. Brown’s second vote, which was to appoint Nevels as secretary of the Board, was needed but disallowed. At that time, the election contest had been decided, although the mandate had not been issued. The court also reasoned that the vote was not on an urgent matter, and it was taken primarily to defeat the desires of the duly-elected school board members.

For the foregoing reasons, the judgment of the Trimble Circuit Court is affirmed.

All concur.


text:
    William Carl ROBERTS, Appellant, v. Barbara Ann ROBERTS, Appellee.
    Court of Appeals of Kentucky.
    Sept. 14, 1979.

      Norman R. Lemme, Pike, Lemme & Conway, Shepherdsville, for appellant.
    Thomas L. Waller, Taylor, Waller & Wooldridge, Shepherdsville, for appellee.
    Before HOWARD, HOWERTON and WINTERSHEIMER, JJ.
   HOWERTON, Judge.

William Carl Roberts appeals from so much of the judgment of the Bullitt Circuit Court dissolving his marriage with Barbara Ann Roberts as valued their residence at $35,000.00 and their pet business at $15,-000.00. He argues that the true values of the residence and business are $30,900.00 and $5,000.00, respectively. The issue to be decided involves the sufficiency of the evidence necessary to sustain a valuation of marital property in divorce proceedings.

At the outset, we can conclude that there was no error in the valuation of the marital residence. The property was purchased approximately three months before the parties separated. The price was $30,-900.00. William testified that $2,600.00 was spent to improve the property, and Barbara Ann testified that the amount was closer to $4,000.00. We believe there was ample, competent proof for the trial judge to conclude that the enhanced and inflated value of the property was $35,000.00. The finding was not clearly erroneous, and there was no abuse of discretion by Judge Sanders. CR 52.

The value of the business, however, presents a more difficult problem. Two recent opinions have been rendered by this Court involving property valuations in marriage dissolutions. William cites Robinson v. Robinson, Ky.App., 569 S.W.2d 178 (1978), to support his theory; and, Barbara Ann cites Turley v. Turley, Ky.App., 562 S.W.2d 665 (1978), to defend her view.

In Robinson, supra, this Court concluded that it was error for the trial court to place a value on marital property when the only evidence consisted of testimony by the owners without any proof of their qualifications to evaluate their property, and a property assessment exhibit without any explanation. The opinion reads, at page 180:

There was simply no way in which the trial court in this action could accurately fix the value of the property which was the subject of the action with the total lack of evidence here. If the parties come to the end of their proof with grossly insufficient evidence on the value of the property involved, the trial court should either order this proof to be obtained, appoint his own experts to furnish this value, at the cost of the parties, or direct that the property be sold.

This Court in Turley, supra, affirmed the judgment of the trial court, even though the proof was “scanty.” Mr. Turley testified as to the value of a lot and mobile home, but Mrs. Turley offered no evidence whatever as to the value. The Turley opinion reads, at 667:

. [W]e cannot find that the value assigned by the trial court was clearly erroneous. In the absence of any other evidence in the record, the trial judge was entitled to draw on his own experience and knowledge. Certainly, we cannot say that the value assigned was excessive when the complaining party offered no evidence respecting the principal asset owned by the parties.

In Turley, supra, the Court applied the principle that a party should not complain when she offers no proof of value, and when there is some basis for the competency of the proof offered by the joint owner of the property. The basis for the decision in Robinson, supra, was that the witnesses indicated no competency to testify as to the value of their property, and a bare exhibit of a property assessment had no probative value. It should be clear that Robinson does not prohibit a property owner from setting a value on his own property. Our law definitely permits it. Beggs v. Beggs, Ky., 479 S.W.2d 598 (1972). There must be some qualification for giving an opinion, however. Mere ownership does not qualify a party to establish a true value. Commonwealth, Department of Highways v. Fister, Ky., 373 S.W.2d 720 (1963).

The facts in this case can be distinguished from both Robinson, supra, and Turley, supra. Each contesting spouse testified, and each had personal knowledge of the business and was competent to testify as to its value. Although it is obvious from the record that William had a more thorough knowledge of the business, its assets and its continuing operation, Barbara Ann had worked in the business before the separation, and she, too, was familiar with the value of the assets, the market, and the earnings from the business.

The business was known as “Best Pets,” and it entailed the breeding, raising, and eventual sale of small animals such as rats, gerbils, hamsters, and guinea pigs, together with their related paraphernalia. William testified that Best Pets was worth $10,000.00 at the date of the parties’ separation. Barbara Ann maintained that at all times, the value was $25,000.00. At the time of the hearing, however, William testified that the value of the business was $5,000.00, and Barbara Ann indirectly valued the inventory of the business at approximately $5,000.00. The inventory had been reduced substantially by William in order to discharge various debts.

The evidence was conflicting as to the amount of assets which had been displaced from the business, and the record is replete with testimony from both sides as to how many cages and animals had been removed. This confusing conflict, together with a consideration of what debts have been satisfied by a reduction in inventory, allowed the trial judge some latitude in fixing a value. The testimony of the parties also revealed that the previous year’s gross sales had been $19,000.00, while the business suffered a net loss of $2,000.00. Barbara Ann, therefore, valued the losing business at $6,000.00 over its gross sales.

The trial judge determined that the value of the business was $15,000.00 for purposes of dividing the property. We find nothing in the record or the specific findings of fact to support that value, but it is nevertheless within the range of the competent testimony. We cannot say that the determination is either clearly erroneous or an abuse of discretion.

We affirm the judgment of the circuit court. CR 52.01.

All concur.


author: WILHOIT, Judge.

text:
    Jimmy Ray JOHNSON, Petitioner, v. Clay M. BISHOP, Judge, Leslie Circuit Court, Respondent. Willie NAPIER, Jr., Petitioner, v. Clay M. BISHOP, Judge, Leslie Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Sept. 21, 1979.
    Nora K. McCormick, Asst. Public Advocate, Winchester, for petitioner Jimmy Ray Johnson.
    William M. Nixon, Asst. Public Advocate, London, for petitioner William Napier, Jr.
    Jack Emory Farley, Public Advocate, Commonwealth of Kentucky, Frankfort, for both petitioners.
    Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for respondent.
    Before GUDGEL, WHITE and WIL-HOIT, JJ.
   OPINION AND ORDER

WILHOIT, Judge.

This case is before the Court on petition of Jimmy Ray Johnson and Willie Napier, Jr., to prohibit the judge of the Leslie Circuit Court from ordering each of them to trial on a charge of robbery in the first degree. The petitioners contend that the circuit court has no jurisdiction to proceed against them because they were both under the age of eighteen at the time the alleged offense was committed. The offense with which the petitioners are charged was alleged to have been committed on January 7, 1978. At that time both were seventeen years of age. On January 25, 1978, juvenile petitions were filed in the Leslie District Court, charging each, among other things, with armed robbery under KRS 515.020, a Class B felony. The record discloses that that same day Napier was brought before the juvenile session of the court, advised of his rights, and returned to jail. Johnson was also advised of his rights, and on a later date his case was continued because he did not have counsel. Apparently, no further action was taken by the juvenile court, and it is clear that no transfer hearing was held, nor was an order entered transferring these cases to the circuit court as provided for in KRS 208.170.

On May 12, 1978, Napier, and, on July 9, 1978, Johnson became eighteen years of age. On July 13, 1978, both were indicted by the Leslie County Grand Jury for first-degree robbery. They were tried in the circuit court, but that trial resulted in a mistrial. A second trial was set for July 26, 1979. Prior to that trial, petitioners moved to quash the indictment and to dismiss the charges with prejudice. Their motion was denied. They then petitioned this Court for a stay of the trial and a writ of prohibition. The stay was granted, and we now grant the writ.

Of critical importance to our determination of this case is the amendment to KRS 208.020(1) which became effective June 17, 1978. This subsection, as amended, reads as follows:

(1) The juvenile session of the district court of each county shall have exclusive jurisdiction in proceedings concerning any child living, or found within the county who has not reached his eighteenth birthday or of any person who at the time of committing a public offense was under the age of eighteen (18) years .. (emphasis added)

Prior to its amendment, this statute vested exclusive jurisdiction in the juvenile court only as to proceedings against an offender which were instituted before his eighteenth birthday. Lowry v. Commonwealth, Ky., 424 S.W.2d 841 (1968). The amendment was obviously intended to, and plainly does, go a step farther and vests jurisdiction in the juvenile court over proceedings against an offender of any age who at the time of committing the offense charged was under the age of eighteen.

We agree with the respondent that this statutory amendment should be given no retroactive application; however, its application as of its effective date leads to a conclusion contrary to that urged by him. Had the Leslie Circuit Court acquired jurisdiction of this matter prior to the effective date of the amendment, we do not believe that the statute then would have operated to divest that court of its jurisdiction. But, such was not the case because on June 17, 1978, no indictment against either of the petitioners had been returned in the circuit court'. From that time on, the juvenile court was vested with exclusive jurisdiction of a proceeding against an individual charged with a public offense committed before his eighteenth birthday.

Even though the petitioners did not raise this question before or during their trial in the circuit court, they cannot be deemed to have waived the question and thereby to have conferred jurisdiction of the cause on the circuit court. That court had no jurisdiction of the subject matter, and subject matter jurisdiction may not be conferred by waiver, or even consent, while a question as to such jurisdiction generally may be raised at any time. Duncan v. O’Nan, Ky., 451 S.W.2d 626 (1970).

Inasmuch as the Leslie Circuit Court lacked jurisdiction to hear this kind.of case, the writ applied for should be granted. Miller v. Anderson, Ky., 519 S.W.2d 826 (1975).

Nothing in our decision here should be interpreted as precluding the juvenile session of the Leslie District Court from proceeding to hold transfer hearings as to the petitioners in accordance with KRS 208.170. It appears to us that the legislative intent upon amending KRS 208.020(1) must surely have been that the transfer hearing provisions apply under the circumstances in this case. If this were not so, then as a practical matter, the courts would be powerless to punish or aid in the rehabilitation of offenders in situations such as this. See KRS 208.200. Manifestly, this was not the intent of the General Assembly.

We do not believe the circuit court erred in refusing to dismiss with prejudice the charges against the petitioners. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966).

It is ORDERED that the respondent is prohibited from further proceedings against the petitioners on Indictment No. 78-CR— F-0045 of the Leslie Circuit Court.

All concur.

      . Ch. 350, § 2, 1978 Ky. Acts 998. (The 1978 legislative session was adjourned March 18, 1978; thus this amendment became effective June 17, 1978, under Section 55 of the Kentucky Constitution, not July 17, 1978, as supposed by the respondent.)


author: CRIST, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Thomas Burton WOODWARD, Defendant-Appellant.
    No. 39837.
    Missouri Court of Appeals, Eastern District, Division Four.
    July 3, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.

      Brett & Erdel, Bradford A. Brett, Mexico, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Kristie Green, Asst. Attys. Gen., Jefferson City, Cynthia 0. Macpherson, Pros. Atty., Audrain County, Mexico, for plaintiff-respondent.
   CRIST, Judge.

Illegal sale of a Controlled Substance, LSD.

The defendant was convicted by a jury in Audrain County Circuit Court on November 2, 1973 of the illegal sale of LSD. On February 2, 1974, he was sentenced to ten years in the penitentiary. Nine days later he filed his notice of appeal. His appeal was dismissed on September 10, 1975 for failure timely to perfect. His sentence was vacated on October 21,1977. He was resen-tenced to ten years in the penitentiary on November 7, 1977. He immediately filed a notice of appeal and duly perfected his appeal to this court. We affirm.

On March 13, 1973, an undercover narcotics agent (a state trooper) allegedly induced defendant to sell LSD to him through a third person. Although defendant alleges the state failed to prove that he acted with the third person to sell to the agent, the state clearly made a submissible case. Accordingly, the facts will be set out hereinafter only as needed in conjunction with specific points relied on. First, defendant strongly contends that he is entitled to a new trial by reason of the admission into evidence of his video-taped confession.

Defendant was arrested on May 17, 1973. He was questioned by the police. Part of the questioning was recorded by a Sony TV camera and tape. Before questioning, he was given a Miranda-type warning. He was informed of his right to have counsel present and to have counsel furnished if he could not afford one. He was not informed that counsel would be furnished to him before questioning if he could not afford one for the purpose of having counsel present at such questioning. No inquiry was made as to whether he was indigent. This first recorded conversation did not contain any admission, but only denials of being involved in the sale of the LSD. About two hours later he was shown an incriminating recording of an interrogation of the third person involved in the alleged sale of LSD. No further Miranda warnings were given. Another tape was then made in which defendant indicated involvement with the crime charged. Shortly thereafter, defendant employed two lawyers to represent him in the defense of his case. Defendant first alleges that the Miranda warning he received prior to the first interrogation was defective and that no fresh warning was given prior to the second interrogation.

As noted above, defendant was not advised that counsel would be furnished to him before any questioning for the purpose of having counsel present at such questioning. This omission was not fatal. Defendant was not an indigent, as witnessed by his employment of counsel. The purpose of advising a defendant of his right to have counsel appointed prior to questioning if the defendant cannot afford counsel is to protect the indigent. The defendant did not require this protection. State v. Bingham, 470 S.W.2d 540, 542-543 (Mo.1971). Further, with regard to the second interrogation, Miranda warnings need not be given each time the accused is questioned. Miller v. United States, 396 F.2d 492 (8th Cir. 1968), cert. den., 393 U.S. 1031, 89 S.Ct. 643, 21 L.Ed.2d 574 (1969).

Defendant contends his right to remain silent was violated by continued questioning after his negative response to the question “[Do you have] anything else [you want] to tell us?” The defendant’s negative response merely indicated that he had no additional information to volunteer. It did not indicate he wished to cut off questioning. The taped statement of the third party was a significant new development in the case and the police were fully justified in showing it to the defendant to give him the opportunity to respond to the new evidence. He further alleges that he was denied the right to use the telephone until after all interrogation was completed and that the evidence does not show that he had knowingly and intelligently waived his rights. These allegations are refuted by the record, viewed in the light most favorable to the state. Cf.: State v. Garrett, 510 S.W.2d 853, 855 (Mo.App.1974) (evidence in suppression hearing viewed favorably to state).

Defendant also complains that the court did not conduct a fair hearing to determine whether or not his statements were voluntarily made. We rule this point against the defendant. The hearing below on the issue of voluntariness was sufficient. The state made a prima facie showing of voluntariness. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); State v. Thomas, 522 S.W.2d 74, 76 (Mo.App.1975). Defendant complains that the court failed to specifically order that the confession was voluntary. However, we believe the trial court’s ultimate conclusion of voluntariness is ascertainable from the record. State v. Monteer, 467 S.W.2d 48, 52 (Mo. banc 1971); State v. Quinn, 461 S.W.2d 812, 816 (Mo.1970).

Defendant further contends that the trial court erred in admitting his videotaped statement because it was the fruit of an illegal arrest. He claims the trooper did not know sufficient facts to authorize a warrant for defendant’s arrest and that § 544.020, RSMo 1969, under which the warrant was issued, was unconstitutional. Defendant failed to raise the constitutional question below and it cannot be raised for the first time on appeal. State v. Byrne, 503 S.W.2d 693, 695-696 (Mo. banc 1973).

With reference to the issue of probable cause, the trooper was a part of and witnessed a scenario which clearly provided a basis for a finding of probable cause to warrant arrest. The trooper was integrally involved in negotiating the deal with the defendant through the third party who relayed their messages and conveyed the LSD across a street on either side of which the trooper and the defendant were situated in their respective cars. Based on such circumstances, the arrest was not illegal. State v. Greenhaw, 553 S.W.2d 318, 324-325 (Mo.App.1977).

Defendant also complains that he was prejudiced for the reason that parts of the transcript are missing. Specifically, he complains about the arraignment. He alleged no error either before trial, or in his motion for new trial, in regard to his arraignment. Since he went to trial without objection, a failure of the record to show arraignment would not be reversible error. State v. Patton, 364 Mo. 1044, 271 S.W.2d 560, 561 (1954).

He also asserts error in the fact that voir dire was not transcribed. Defendant alleged error in his motion for new trial in regard to voir dire on the ground that defense counsel’s inquiry of each member of the jury panel as to whether each believed that because the defendant was charged, he must be guilty of something, was improperly restricted by the trial court. No request appears for the transcription of voir dire. There was no objection of the lack of recording. He cannot now complain. State v. Gordon, 527 S.W.2d 6, 10 (Mo.App.1975).

Defendant further complains about the absence of the tapes of the video-taped statements. At the time of the hearing on the motion to suppress, the prosecuting attorney indicated that the reporter need not take down the audio portions of the video tapes because the tapes themselves were available. At the time the tapes were played to the jury, they likewise were not recorded. In his motion for «new trial, defendant alleged the video-taped interrogations should not have been admitted and that the jury saw portions of the tapes that had actually been excluded, but no objection was made as to the lack of a record. The tapes are now lost. By the reason that this case was tried in 1973, the original appeal was dismissed in 1975, and defendant failed to request a transcript subsequent to the trial, the 5-year lapse between trial and this appeal indicates no invidious discrimination against the defendant. Franklin v. State, 455 S.W.2d 479, 481 (Mo.1970). The burden was on defendant to prepare and file a transcript which incorporated the proceedings showing the alleged trial error. Jackson v. State, 514 S.W.2d 532, 533 (Mo.1974); State v. Harlin, 556 S.W.2d 42, 44 (Mo. banc 1977). The defendant has failed to show wherein and why any of the omitted matters were prejudicial and sufficient for reversal. We rule this point against defendant.

Defendant complains that the trial court erred in admitting the LSD as an exhibit because of lack of proof in showing a sufficient chain of custody. The aforementioned third party received the LSD from defendant and handed it to the trooper. According to the third party, the package was wrapped in a cigarette pack cellophane. The third party carried it in his hand from defendant to the trooper. The trooper testified that the third party came back from defendant’s car and handed him a foil wrapper which he placed in his coat pocket. Shortly thereafter the trooper opened and looked inside the package, which contained ten small white tablets. This package was then taken to Jefferson City and placed in the trooper’s evidence locker. The trooper identified the exhibit as the substance received from the third party. This was a sufficient chain of custody. State v. Turner, 543 S.W.2d 270, 272 (Mo.App.1976).

Defendant complains that the trial court prejudiced the jury against the defendant and inferred the guilt of the defendant by orally reprimanding and criticizing defense counsel and by overruling defendant’s motion for a judgment of acquittal. The question for this court is whether the action of the trial court so prejudiced the jury as to deny the defendant a fair trial. State v. Jones, 558 S.W.2d 242, 246 (Mo.App.1977). In dealing with this issue, precedent is of little value, and each case is decided on its own facts. State v. Wren, 486 S.W.2d 447, 448 (Mo.1972). The defendant has complained of numerous instances of alleged misconduct, the worst of which appear to be commenting on questions asked of witnesses and insisting that the defense counsel not repeat the witnesses’ statements so often, however, none of the conduct of which defendant complains rendered his trial unfair. This point is ruled against defendant.

Defendant complains he suffered manifest injustice as a result of several questions the prosecutor asked during the course of the trial which, the defendant contends, placed his character in issue. The questions asked related to the defendant’s personal use of LSD and whether the defendant willingly sold the drugs to the state trooper. Only one question was allowed to be answered and it bore on the issue of entrapment, which, at the time the question was asked, was apparently in issue; objections were sustained to the other questions. Whether the trial court should have declared a mistrial sua sponte was a matter within its sound discretion. The record does not show an abuse of discretion. State v. Robinson, 345 Mo. 897, 130 S.W.2d 530, 532 (1939).

Defendant complains that the state’s opening statement was argumentative in form in that it was presented as a series of facts rather than an assertion of what the state expected to prove. These matters are within the control of the trial court. State v. Masters, 530 S.W.2d 28, 30 (Mo.App.1975). The trial court, and the state also to some extent, pointed out that the opening statement was a prediction of what the evidence would show. It would have been preferable for the state to make the nature of the opening statement clearer, but we find that the defendant was not prejudiced.

Defendant complains about the statements of the prosecuting attorney in closing argument making reference to the fabrication of a defense. The record does not show that the trial court abused its discretion. The statements of the prosecuting attorney were fair comment as shown by the evidence. In any event, there was no objection and this point has not been preserved for review. State v. Bankhead, 536 S.W.2d 172, 173 (Mo.App.1976).

Defendant also complains the court should have granted a mistrial when the prosecutor stated in his closing argument that the jury had to do something about drug sellers. The argument came in without objection. While defendant asked for a mistrial at the close of the argument, the objection came too late. State v. Whites, 538 S.W.2d 70, 73 (Mo.App.1976). In any event, the closing argument was proper because it was based on a plea for law enforcement. The trial court has wide latitude in permitting argument of counsel. State v. Jones, 384 S.W.2d 554, 560 (Mo.1964); State v. Taylor, 508 S.W.2d 506, 514 (Mo.App.1974).

Defendant finally complains that the verdict-directing instruction improperly stated the elements of the charge in that the following elements were omitted: (1) common intent to act together; (2) knowledge of the nature of the substance; and (3) intent to distribute the substance; and that this instruction conflicted with its converse. This point was not preserved for review and defendant accordingly contends these errors resulted in manifest injustice under the plain error doctrine. We disagree. The verdict-directing instruction required for a guilty verdict that the jury find the defendant “acted knowingly with [the above-mentioned third party] to commit the offense of the sale of lysergic acid diethylamide (LSD)” and that “while they were so acting one of them sold [the LSD] to [the trooper].” This instruction supplies the elements defendant contends are absent sufficient to withstand attack as plain error. State v. Lemon, 504 S.W.2d 676, 683-84 (Mo.App.1973).

The alleged conflict between the verdict-directing instruction, which was offered by the state, and its converse, which was offered by the defendant, arose from the difference in phrasing between the instruction quoted above and the converse which required for a not guilty verdict that the jury find the defendant did not “act knowingly with [the above-mentioned third party] with common intent to commit the offense charged.” This difference in phrasing did not amount to a conflict in the instructions and thus did not result in plain error.

The judgment is affirmed.

DOWD, P. J., and SATZ, J., concur.


author: SMITH, Judge.

text:
    STATE of Missouri, Respondent, v. Odell BLACKMON (a/k/a Blackman).
    No. 39922.
    Missouri Court of Appeals, Eastern District, Division One.
    July 3, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Vincent S. Moody, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   SMITH, Judge.

Defendant appeals from his conviction by a jury of first degree murder, robbery, assault with intent to kill with malice, and armed criminal action. The court sentenced defendant to consecutive terms of life imprisonment, twenty years, thirty-five years and five years. On appeal defendant challenges only the conviction for murder.

The evidence at trial was largely circumstantial but would support a finding that defendant and Willie Cordell robbed the Beneficial Finance Company on Grand Avenue in St. Louis with a gun and that during the course of the robbery defendant shot and wounded an off-duty policeman, Chris Day. The evidence also supports a finding that during the course of the robbery Willie Cordell was shot and that he died shortly thereafter from the wound.

Specifically, as to the death of Willie Cordell, the evidence most favorable to the State is as hereinafter set forth. After two masked men had entered the finance company they ordered several employees to a restroom area in the front of the office. Day was in the office to obtain assistance with his income tax. Cordell came to the area where Day and another employee were located and indicated a hold-up. Day observed that Cordell was not apparently armed, and Day rose to his feet and drew his pistol. Cordell then grabbed Day and the two men fell to the floor locked in combat. Cordell yelled at the other robber, who was armed, that Day had a gun and that the other robber should “shoot him.” The other robber, identified through circumstantial evidence as defendant, came to the area of the struggle and from a standing position above the combatants fired two different series of “several” shots down toward Cordell and Day. Three bullets struck Day. One, removed surgically thereafter, was a .32 caliber. Day fired three shots — one at defendant, one at Cordell, and one into the floor. He did not know whether he hit Cordell. Day’s gun was a .38 caliber. The combatants disengaged when defendant struck Day several times with a gun and Cordell and defendant fled with the proceeds of the robbery.

The robbers escaped by car to an area several blocks away. A police officer, searching for them on foot, located Cordell lying in a back yard bleeding from the chest. Cordell died from the chest wound. Near Cordell’s wounded body was a .32 caliber casing and a spent bullet “less than .38 caliber”. The medical evidence was that a bullet entered the right upper back of Cordell and exited through the right nipple. The trajectory through the body was neither ascending nor descending. Defendant s testimony, and that of his witnesses, supported an alibi defense — that he was not present and did not participate in the robbery.

Defendant was charged with causing the death of Cordell during the perpetration of a robbery in violation of Sec. 559.007 RSMo 1975. The court’s verdict directing instruction on the murder was MAI-CR 6.19 and required the jury to find that “defendant caused the death of Willie Cordell by shooting him ” during the course of the robbery. It is defendant’s contention that thé emphasized portion of the instruction was unsupported by the evidence and it was therefore error to give the instruction.

On May 17, 1979 the Supreme Court held in State v. Moore, 580 S.W.2d 747 (Mo. banc 1979) that where a person is killed during the course of a felony the felony-murder rule is applicable whether the fatal shot is delivered by the defendant, a co-participant, a victim or a bystander, unless there has been an independent intervening act. In so doing the Court overruled State v. Majors, 237 S.W. 486 (Mo.1922) which had held that the felony-murder rule did not apply unless the fatal shot was delivered by the defendant or a co-participant. In view of State v. Moore the phrase “by shooting him” introduced into the instruction an additional element unnecessary to establish the guilt of defendant. Under Moore, it is immaterial whether Cordell was shot by defendant or by Day as long as he was killed in the course of the robbery under foreseeable circumstances.

Defendant has called our attention to the Dayton cases—State v. Dayton, 535 S.W.2d 469 (Mo.App.1976) and State v. Dayton, 535 S.W.2d 479 (Mo.App.1976)—to support his contention that even if the instruction contained an unnecessary element the instruction was still unsupported by the evidence as to that element and therefore prejudi-cially confusing. In the Dayton cases the defendants were charged as both principals and aiders and abettors of gross sodomitic conduct involving two boys. The evidence for the state clearly established the conduct, the participation therein by four individuals including the defendants but there was no evidence as to which of the participants actually inserted his penis into one boy’s mouth. The instructions on that crime included one on aiding and abetting but the verdict directing instruction required the jury to find that defendant, “either alone or acting in concert with others, inserted his penis into the mouth of G.D.” In the first Dayton case the court held that such an instruction was not based upon substantial evidence, allowed conjecture and “corrupted” the submission requiring reversal. No specific finding of prejudice was made. In the second Dayton case (involving a brother of the first Dayton defendant) the court found also that prejudice existed because a question from the jury indicated confusion because of the inconsistency between the verdict director and the aiding and abetting instruction. While it is possible to distinguish the Dayton cases and the one at bar we are not convinced that the distinctions are meaningful to the principles necessary to resolution of the problem before us.

Defendant points to a question from the jury in this case as also indicating confusion. We believe the question posed by the jury here related to transferred intent — i. e. if defendant shot at Day and hit Cordell was he guilty — rather than the question of which individual actually shot Cordell.

In contrast to the Dayton cases is State v. Adams, 339 Mo. 926, 98 S.W.2d 632 (1936), also involving felony-murder. There the killing occurred while the defendant and his compatriots were attempting to escape from a burglary. The trial court instructed the jury that defendant could be convicted of felony-murder if at the time of the killing the jury found that the defendant was still engaged in the asportation of the stolen property. In fact, the only evidence was that the defendant and his compatriots had abandoned the stolen property at the time of the escape. The court stated that asportation is not an element of burglary and does not therefore serve to prolong the crime. The court held, however, that aspor-tation was not required as the escape was a part of the res gestae of the burglary and as such supported a conviction for felony-murder. The court then held that the instruction requiring a finding of asportation was erroneous but was not prejudicial because it added an unnecessary element and so was beneficial to defendant.

In neither the first Dayton nor the Adams cases is there any extensive discussion of why the inclusion of an additional but unnecessary element in the verdict director is prejudicial or non-prejudicial, other than a conclusion that it “corrupts” the submission in one case or is beneficial to defendant in the other. Second Dayton found prejudice in the confusion reflected in the jury’s question, yet again made no analysis of why a defendant is prejudiced when a finding of guilt based upon all properly submitted elements would still be proper regardless of the evidence supporting an unnecessary element. Unless it may be presumed or inferred that the jury’s affirmative finding of an unnecessary but unproved element per se demonstrates misconduct or confusion as to the other elements, we are unable to find prejudice in this situation. We are not willing to so presume or infer. Here all elements necessary to a jury finding of guilt of felony-murder were submitted to the jury which must have affirmatively found each such element. The additional submitted element was unnecessary to establish the crime and whether supported by evidence or not, could not have prejudiced defendant. If the instruction was erroneous it was not prejudicially so.

We also conclude there was evidence upon which the jury could have found that defendant shot Cordell. Several facts support this submission: (1) defendant fired several shots toward two men locked in combat; (2) not all of those shots struck Day; (3) the shot that killed Cordell entered his back and inferentially was not likely to have come from an individual with whom he was wrestling; (4) the path of the bullet was level which is consistent with a shot fired by a person standing above Cor-dell shooting down as defendant was; (5) a spent bullet, not from Day’s gun, was found near the body of Cordell raising an inference that it was carried to that location in the clothing or body of Cordell and dropped out as Cordell was fleeing. The evidence was sufficient to support the instruction and the verdict rendered thereunder. State v. Adams, supra [1].

Judgment affirmed.

WEIER, C. J., and SNYDER, P. J., concur.

      . “What is the definition of 1st degree murder? If a person is accidentally killed while someone is attempting to shoot another, does this mean that the ‘killer’ is guilty of 1st degree murder? Is premeditation necessarily involved?”