author: SHANGLER, Judge.

text:
    CITY OF JEFFERSON, Plantiff-Respondent, v. Mary J. SMITH et al., Defendants-Appellants.
    No. KCD 28090.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.

      Carson, Monaco, Coil & Riley, Michael P. Riley, Jefferson City, for defendants-appellants.
    Graham & Graham, Thomas D. Graham, Christopher Graham and James P. Dalton, City Atty., Jefferson City, for plaintiff-respondent.
    Before PRITCHARD, C. J., and SHAN-GLER, DIXON, SWOFFORD, WASSER-STROM, SOMERVILLE and TURNAGE, JJ.
   SHANGLER, Judge.

This appeal is from a declaratory judgment that the resolution adopted by the respondent City of Jefferson for the annexation of an unincorporated tract within the county was authorized under The Sawyers Act [§ 71.015, RSMo 1969]. The appellants are residents of the area subject to annexation.

The requirements for annexation under the Act are that a city which has resolved to extend its limits to include an unincorporated area of land must prove a declaratory judgment on a petition which pleads: (1) the area to be annexed; (2) that the annexation is reasonable and necessary to the proper development of the city; and (3) the ability of the city to furnish its municipal services to the unincorporated area within a reasonable time. The declaratory judgment was supported by findings of fact and conclusions of law on these statutory elements. The appellants contend the judgment was erroneous because of the failure of the court to find that the annexation was reasonable to them as well as to the city, and for other failures of proof.

The plaintiff city is of the third class located in Cole and Callaway Counties. It is shown to have a population of 34,530 and contains 12,999 acres within its present municipal boundaries. The annexation proposes to add 1332 acres to the western limits of the city and includes a corridor which tends to make the southwestern boundary more regular. At the time the annexation resolution was adopted, some seven hundred people lived in the area, including the occupants of one hundred and fifty apartments [the bulk of them on the Knipp tract in the southern part of the area for annexation], fifty-five single family homes in the northwest and west of the area, and thirty-three mobile homes in the southwest corridor. A cluster of commercial and office buildings are concentrated along North Ten Mile Drive in the northwest corner of the area. The annexation area stands astride of U. S. Highway 50 which bisects the area and intersects with North Ten Mile Drive near the Jefferson City Country Club. The club and a cemetery form the westernmost boundaries of the annexation. A large tract just north of the highway has been acquired by the General Growth Corporation for the development of an enclosed mall and other consumer amenities.

The city presently furnishes only limited services to the proposed adjunct of land. The mobile park corridor already receives municipal sewer service, and a trunk line is in place for use in the commercial hub on North Ten Mile Drive and will become operative by the installation of pumps promptly upon annexation. The rest of the area disposes of waste by lagoons and septic tanks. A county volunteer force fights fires, streets are maintained by the county and county police protect the area against crime. The land use is random and without regulation of zoning or building codes. The result has been a marked increase of traffic hazards along the North Ten Mile Drive commercial area.

The respondent City of Jefferson is shown to be solvent and otherwise fiscally responsible.' It is fully endowed with the capacity for every service a modern city has to offer and is able to extend them to the area which it seeks to include. Annexation would open the area to city fire and police protection, sewer disposal service, traffic control, street cleaning, zoning regulation and all the other amenities now furnished the city populace, including a varied park and recreation service.

The burden rests on the municipality to prove the three statutory elements established by § 71.015 for valid annexation of an unincorporated area. Annexation is a legislative function and the scope of judicial review in such matters is to determine whether the reasonableness of the municipal legislation is fairly debatable; if so, it is conclusive on the courts. Bourbon v. Miller, 420 S.W.2d 296, 300[1-4] (Mo.banc 1967); City of Odessa v. Carroll, 512 S.W.2d 862, 866[1, 2] (Mo.App.1974). In this determination, both the city and the residents of the proposed area are entitled to the benefit of the test of reasonableness. City of St. Ann v. Buschard, 356 S.W.2d 567, 575[7, 8] (Mo.App.1962).

The declaratory judgment of the circuit court sustained the annexation on specific findings that the statutory elements of proof had been met, among them, that the annexation was reasonable and necessary to the proper development of the city. The appellant contends that this conclusion truncates another essential finding—that the annexation is reasonable to the unincorporated area also—and thus does not validly declare an annexation under the statute.

In this regard, the provision of statute is only that the “annexation [be] reasonable and necessary to the proper development of the city”. The statute in terms requires no more. The case law, however, has developed aids to reach the ultimate issues intended by that section. Thus, this component of the statute is said to embody two closely related concepts and must be read discontinuously: first, “that the annexation is reasonable” and second, “that the annexation is necessary to the proper development of the city.” City of Olivette v. Graeler, 338 S.W.2d 827, 837[15, 16] (Mo.1967); City of Houston v. Duff, 338 S.W.2d 373, 381[6] (Mo.App.1960). This discloses the intention that the test of reasonableness must be met as to both the city and the proposed area. It is evident, therefore, that a judgment which declares annexation reasonable and necessary to the proper development of a city implies the included finding that the test of reasonableness was met as to both parties.

The proper inquiry is whether the evidence supports these ultimate requirements of the statute, as found by the court, and it is to this question of sufficiency that we deem appellants direct their contentions.

As the initial evidence of the unreasonableness of the municipal annexation, appellants contend that the only benefits the city will provide, which are not already enjoyed by the unincorporated area, will be sewer disposal service at an estimated cost to each resident of $1000 in taxes and curbs which will cost $500. This, they conclude, is an unreasonable basis for annexation. This contention, however, is tendentious and misleading. The evidence established that annexation would bring many benefits to them in addition to sewer service: traffic control, fire protection calculated to reduce their insurance rates, more intense police protection, zoning among other things. The appellants gave no evidence, so the inferences from the testimony of municipal witnesses went unchallenged. Gene Knipp, owner and developer of a large tract in the area, as well as a resident, stressed the importance of sewer installations to the growth of his housing development there. Joe De Long, a leader in the local chamber of commerce, explained how insufficient services had retarded commercial growth in the area, and that he had never been able to locate a business outside the police and fire protection zone of Jefferson City. Annexation and extension of city services, he concluded, would facilitate growth. A representative of the Insurance Services Office testified that city fire protection in the proposed area would improve such service and lower insurance rates. The benefits of such fire protection were confirmed by Cor-liss Jones, former president of the Jefferson City Country Club. The benefits of annexation, as told by Mr. Jones, would derive also from the city zoning and planning controls which would relieve the threat of incompatible business development near the country club.

The courts have articulated many tests to determine the reasonableness of an annexation, but not all of them need be met to justify a particular event. City of St. Joseph v. Hankinson, 312 S.W.2d 4 (Mo.1958). An inclusive standard for annexation is given in City of Cape Girardeau v. Armstrong, 417 S.W.2d 661 (Mo.App.1967), l.c. 676:

A case of reasonableness is made where it appears that the land annexed is so situated as to be adaptable to urban purposes and necessary or convenient to a reasonable exercise of the city government.

The contentions appellants make here that certain evidentiary components of reasonableness were not met, or that others shown were palpably for the benefit of the city alone, must be weighed against that paradigm. Our review under Rule 73.01 in such cases, however, no longer allows de novo assessment of the evidence [compare City of Houston v. Duff, supra, l.c. 375], but binds us to sustain the judgment of the trial court unless it lack substantial evidentiary support. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).

Accordingly, we shall assess these numerous contentions in composite for the ultimate determination of whether the test of reasonableness has been met.

The appellants argue next that there was a failure of proof that the proposed annexation was necessary to the growth of the city, that to the contrary, the evidence showed substantial undeveloped acreage within the municipal boundary. This argument supposes that 8000 unused acres remain to the city and is misleading. It was the testimony of the Director of Public Works that 3606 city acres were vacant, and of these, about 1650 acres were in larger tracts. In order to justify annexation, the city must show a need for residential, industrial and commercial sites within the proposed area and inability to meet this need without expansion. City of Mexico v. Salmons, 514 S.W.2d 102, 104 (Mo.App.1974). Commercial and industrial expansion of a city are important factors in the determination of reasonableness and necessity of an annexation. City of Rock Port v. Atchison County Coop. Ass’n, 432 S.W.2d 317, 325 (Mo.1968).

The evidence was clear that the need for areas suitable for commercial development was one of the most cogent reasons for the annexation. Although some tracts for such purposes were available within the city, there was a shortage of large areas of undeveloped land suitable for commercial development within the city. One such large enterprise was under way within the city—a Housing Authority Corps of Engineers joint undertaking—but space for that project was obtained through the removal of homes and businesses already standing. Real estate developer Knipp testified that the rugged profile of much of the city land—such as the tract he owned—prevented him from building his apartment complex within the city, so that he was compelled to locate his apartment complex as well as his business in the outlying area proposed for annexation. There was comparable evidence from witnesses De Long, Scott Cantine [who developed the municipal comprehensive plan] and others.

On the other hand, the record is replete with evidence of the suitability of the proposed area for commercial use and the municipal need of it. The General Growth Corporation purchased a large tract in the area for the development of a large shopping center. Several other businesses have already located there. The number of building permits issued within the city for commercial purposes indicates a constant commercial growth. The market survey which prompted General Growth Corporation to locate in the proposed area indicated a genuine need for commercial expansion within that trade area. This evidence supports the need for city extension to the land in question for that purpose.

The need for that area for the residential expansion of the city is not as abundantly proved, but nevertheless fairly debatable. There remain numerous plots of land within the city available for residential development, but that condition does not preclude reasonableness of annexation. City of Ash Grove v. Davis, 418 S.W.2d 194, 205[12] (Mo.App.1967). The significant evidence on this issue was the spill over of the municipal population into the proposed area, about 700 persons who lived there and were employed within the city. These circumstances confirm the adaptability of this area to city uses and the presence of a community of interest between them. City of St. Joseph v. Hankinson, supra, l.c. 18.

The appellants argue further: that to annex merely to impose zoning or orderly development is not a valid purpose. The cases cited on this point—City of Butler v. Bock, 492 S.W.2d 160 (Mo.App.1973) and City of Odessa v. Carroll, 512 S.W.2d 862 (Mo.App.1974)—do not bear on this discussion because here neither considerations stand alone to justify annexation. The need for additional commercial and residential sites for municipal expansion has already been shown. The migration of city population into the proposed area accompanied by a commercial development calculated to attract city custom establishes a community of interest and justifies concern by the municipality that the development at its threshold will be orderly. The regulation of such growth by zoning, in these circumstances, would be of mutual benefit.

The next contention is that the municipal history of frequent annexations renders the present legislative action unreasonable. The courts have commented that “[annexation should be infrequent and the city should be permitted to make reasonable provision for the foreseeable future.” Rock Port v. Atchison County Coop. Ass’n, 432 S.W.2d 317, 325[2] (Mo.1968). This declaration is designed to encourage good planning and does not lay down a quantitative measure of reasonableness. Each case of annexation presents it own features for consideration and must be determined on the facts presented. City of St. Joseph v. Hankinson, supra, l.c. 17[13, 14].

The final point made on the reasonableness and necessity requirement for annexation is that the inclusion of Jefferson City Country Club and the cemetery in the proposed expansion utterly fails to meet this statutory test and thus the entire annexation fails. The cases cited are City of Rock Port v. Atchison County Coop. Ass'n and City of Bourbon v. Miller, supra. In those cases the city attempted to annex two or more geographically disparate areas by means of one annexation ordinance. In each, the court found that the city had failed to meet its burden of proof as to one entire tract, thus reversal was required. The case here is different. The appellants do not challenge the annexation of a separate tract, but of a small part of a large contiguous area. The country club occupies 176 acres, approximately 5% of the total annexation. A former president of the club, Corliss Jones, testified of the benefits jointure would bring to the club from police, fire, sewer service and zoning regulation. In fact, the Board of Directors of the club actively sought to be included in the proposed annexation and, it may be fairly assumed, that the consultations between the mayor and Jones which resulted from that overture, led to the requested consummation. The cemetery abuts a segment of the westernmost boundary of the proposed area and its inclusion results in a more regular city boundary. The city had an interest in protecting both the country club and cemetery because of the relationship between them and the Jefferson City community, and the reasonableness of their inclusion was at a minimum fairly debatable.

The final issue contends that the other critical statutory element was not met: that evidence did not show that the city could furnish normal municipal services to the annexed area. The proper test, however, is whether the city is able to furnish to the area services which ,the municipality presently provides its populace. City of St. Ann v. Buschard, 356 S.W.2d 567, 579 (Mo.App.1962). The city met its burden of proof on this issue. The modern sewage disposal plant owned and used by the city operated at less than two-thirds of capacity and was sufficient to serve the included area. The municipal capacity to serve the area by means of modern police and fire forces are amply shown. The diverse recreational services of the city would be immediately open to the area; planning and zoning services would extend to them, along with the protection of building codes. The city street department will add such new services as traffic control and street cleaning.

The finding of the trial court that Jefferson City has the ability to extend within a reasonable time after effective annexation its municipal services to the proposed area rests on substantial evidence and is sustained. Murphy v. Carron, supra.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: TURNAGE, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Thomas B. GORDON, Appellant.
    No. KCD 28173.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.
    Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Thomas B. Gordon was convicted of stealing a leather coat from Macy’s with a value of over $50.00. The court assessed punishment at five years imprisonment absent a sentence by the jury.

On this appeal Gordon principally urges reversal of his conviction on the grounds of an abuse of discretion in the failure of the court to excuse a venireman for cause. Reversed and remanded.

During the voir dire the following occurred:

MR. BLOEMKER (Defense Counsel): Are any of you right now, or have you in the past, been a member of any law enforcement agency, either civilian or military, the MPs, the Shore Patrol, Air Police, anything of that sort? Yes, sir.
VENIREMAN EDGAR: Edgar.
MR. BLOEMKER: Mr. Edgar.
VENIREMAN EDGAR: Twenty-one years in the Air Force and Army, base security officer, provost marshal,—
MR. BLOEMKER: All right.
VENIREMAN EDGAR: I was a police officer at Houston Lake.
MR. BLOEMKER: Okay, Mr. Edgar.
The three of you who answered yes to that question, let me pose one question specifically to just you. Do any of you think that your experience as a police officer, or military police officer or what not, could in any way affect the judgment that you might make in this case?
VENIREMAN McCLAIN: No.
MR. BLOEMKER: All of you feel that you could still give us a fair and impartial hearing?
VENIREMAN EDGAR: I think it might affect mine. I have other extenuating circumstances. I have other reasons, which hasn’t been asked.
MR. BLOEMKER: I beg your pardon, sir.
VENIREMAN EDGAR: I said I have another reason but the question hasn’t been asked.
MR. BLOEMKER: All right. But you feel that your experience as a police officer would have some effect on it also?
VENIREMAN EDGAR: Possibly.
MR. BLOEMKER: Well, maybe at this time I will just ask you what do you feel are the other reasons that might affect you?
VENIREMAN EDGAR: Well, my wife is with the Kansas City Police Department and we have close and intimate friends throughout the department.
MR. BLOEMKER: Mr. Edgar, do you think that you could give us a fair and impartial hearing in this case, or do you think that it would be impossible for you to do so?
VENIREMAN EDGAR: I would hope I eould, but there is some doubt.
MR. BLOEMKER: You have doubt in your mind?
VENIREMAN EDGAR: Yes.
THE COURT: Would you like to ask him some questions?
MR. HALL (Assistant Prosecuting Attorney): Yes.
Mr. Edgar, could you take all the evidence that comes from this stand, and weigh it and come to a just — go up to the jury room—
VENIREMAN EDGAR: I would hope so.
MR. HALL: —and come to a just verdict? You believe you could?
VENIREMAN EDGAR: I would hope so.
MR. HALL: Thank you very much, sir.

After further questions to the panel, counsel for both the State and Gordon announced they had no further voir dire examination. Thereupon the following occurred:

MR. BLOEMKER: I would request that
Mr. Edgar be struck for cause. I think he has indicated he does have doubt in his mind as to whether he could render a fair and impartial verdict in this case.
THE COURT: He was questioned on that.
MR. HALL: I believe he answered he hopes and believes he could.
MR. BLOEMKER: He said he hoped that he could, but he had doubt in his mind.
THE COURT: Do you want to question him further?
MR. HALL: I don’t think its necessary. He already stated that he could.
MR. BLOEMKER: I don’t believe that’s correct. I believe he stated he had doubt in his mind he could be a fair and impartial juror.
THE COURT: Why don’t you ask him then? I didn’t understand him to say that.
(The proceedings returned to open court)
MR. BLOEMKER: I would like to ask Mr. Edgar one further question, if I could. Mr. Edgar, we just want to clear something up. Do you have some doubt in your mind as to whether you can sit fairly and impartially in this case?
VENIREMAN EDGAR: I don’t really have doubt. I brought up the fact that the majority of my life being on the side of law enforcement, etc., etc., including the present, I wanted to make it known to both sides that this was the case. I have always tried to make a fair and impartial judgment of all the facts.
MR. BLOEMKER: Do you think that your association with law enforcement, both your own and your wife’s, would have any effect on the decision you might make in this case?
VENIREMAN EDGAR: I don’t think so.
MR. BLOEMKER: All right. Thank you.
VENIREMAN EDGAR: It should not.
(Counsel approached the bench and the following proceedings were had)
MR. BLOEMKER: That’s not the same answer he gave before, and I would still request that he be struck.
MR. HALL: Mr. Edgar has always said that there was some doubt. As he just stated, he just wanted to make it clear that he has this association. Of course any juror might have some doubt about his ability, but he said that he believes that he can give a fair and impartial verdict.
THE COURT: He stated it very firmly I thought. I will overrule the challenge for cause.

The rules for determining the question Gordon raises are well defined and stated in State v. Lovell, 506 S.W.2d 441, 443, 444 (Mo. banc 1974). These include the fact a defendant is entitled to a full panel of qualified jurors before he makes peremptory challenges and the court’s discretion in ruling upon challenges for cause will not be disturbed unless it is so manifestly against the record as to show an abuse of discretion. Further, the decision of the court “should rest upon the facts stated by the juror with reference to his state of mind and should not be allowed to depend upon the conclusions of the juror whether he could or would divest himself of a prejudice he admitted to exist in his mind.” Lovell at 444.

The State and Gordon have stipulated that Mr. Edgar was one of the panel submitted to the parties from which they made their strikes. It is further stipulated that Gordon used one of his peremptory strikes to remove Mr. Edgar from the panel.

Mr. Edgar was undoubtedly trying to answer the questions concerning his state of mind as truthfully as he could. He stated his life had been spent on the side of law enforcement. By reason of this, and his wife’s current employment with the police department, he has close and intimate friends throughout the department. It is not surprising that Mr. Edgar expressed the feeling his experience would affect the judgment he would exercise in hearing this case. Neither is it unexpected that he expressed doubt that he could give both sides a fair and impartial hearing.

While Mr. Edgar, at the end of his voir dire, did state he did not think his association with law enforcement would affect his decision, a review of his entire examination reveals a clearly expressed doubt that he could accord Gordon a fair and impartial trial.

The evidence in this case vividly illustrates the reason it is vital to have a completely unbiased jury. Gordon was seen taking the coat in question by a store security officer, but when apprehended, he was wearing the coat which did not display any of the normal store tags. Gordon’s half-sister testified she had purchased the coat from Macy’s a short time earlier and had given it to him as a Christmas present. In this situation the jury was directly confronted with a choice of believing the security officer or the half-sister.

With the state of mind shown to exist in Mr. Edgar, it is reasonable to conclude he would have had difficulty in impartially resolving this conflict. This demonstrates an abuse of discretion in refusing to strike Mr. Edgar for cause. In any event, while the evidence here clearly shows the need for impartial jurors, this court concludes the court abused its discretion in refusing to strike Mr. Edgar based on his entire examination and without regard to the evidence he would have heard had he served. State v. DeClue, 400 S.W.2d 50 (Mo.1966).

As is frequently stated in cases of this nature, this in no wise impugns Mr. Edgar for his honesty or his candor in answering questions. It simply once again focuses attention on a troublesome aspect of the trial of a criminal case. Here, Mr. Edgar undoubtedly gave as fair and honest answers as he possibly could, but the conclusion must follow from the answers he gave that in fact he was influenced by his law enforcement service and association and would let this influence his judgment in sitting as a juror in this case.

Gordon also urges the court erred in admitting evidence of the retail price at which Macy’s would sell the coat. The test of value in a stealing case is the market value of the property taken at the time and place of the offense. 52A C.J.S. Larceny § 118, p. 618. Evidence of the retail price of property is admissible to show its market value. State v. Sorrell, 95 Ariz. 220, 388 P.2d 429 (1964), Lauder v. State, 233 Md. 142, 195 A.2d 610 (1963).

There was no error in admitting the retail price of the coat.

The judgment is reversed and the cause is remanded.

All concur.


text:
    STATE of Missouri, Respondent, v. Harrison BARNES, Appellant.
    No. KCD 28248.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.
    John E. Craig, Levy & Craig, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Harrison Barnes was convicted of robbery first degree, Section 560.120, RSMo 1969. The jury was unable to agree upon the punishment and the court imposed sentence of 25 years confinement.

On this appeal Barnes urges the singular point that the court erred in admitting evidence of in-court identification of Barnes because it was based upon an unfair and unconstitutional pre-trial lineup. Barnes did not file a pretrial motion to suppress evidence of identification and made no objection to evidence of identification when this was introduced at trial.

Barnes was charged with robbing the Bellerive Hotel. Barnes accosted the clerk working behind the desk with a knife and forced him into the manager’s office where Barnes tied the clerk to a chair. For a while Barnes stayed behind the desk and was there observed by three people staying in the hotel as they came in. The three guests, along with the clerk, all testified they had ample opportunity to observe Barnes. The clerk especially had a close-up view of Barnes as he was being tied in the chair.

All of the witnesses testified Barnes was not wearing any sort of mask, but did wear sunglasses.

After the clerk and two hotel guests had testified as to their identification of Barnes based on their observation of him at the scene, Barnes, for the first time, filed a motion to dismiss the charges on grounds of a suggestive lineup. The substance of the motion was that Barnes was in a lineup as the "only person with an “afro” hairdo.

The facts in this case are so similar to the facts in State v. Young, 534 S.W.2d 585 (Mo.App.1976) and State v. Holland, 534 S.W.2d 590 (Mo.App.1976) as to make it unnecessary to repeat the well established rules set out in those cases.

Suffice it to say by the failure to file a pretrial motion to suppress, and failure to object to identification evidence at the time it was introduced, Barnes has waived all of his objections to the lineup. However, even examining the merits of Barnes’ complaint, it is obvious the test referred to in Holland is met and that in the totality of the circumstances here, the identification procedure was not prejudicial. There was an independent basis for the identification on the part of all four witnesses who identified Barnes. In addition, all four witnesses who identified Barnes did so in a positive manner in the courtroom.

On the basis of the rules set out in Young and Holland, the judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Michael Harrison BARNES, Appellant.
    No. KCD 28434.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.

      John E. Craig, Levy & Craig, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Michael Harrison Barnes was convicted of robbery first degree, Section 560.12,0, RSMo 1969, but the jury was unable to agree upon punishment. The court imposed a sentence of five years to run consecutively with the sentence imposed in State v. Barnes, Mo.App., 543 S.W.2d 556, decided concurrently herewith.

The sole point raised on this appeal is error in overruling the motion in Limine. That motion was as follows:

MOTION IN LIMINE
“The above-captioned cause has been set down for trial on the merits on October 13, 1975.
“According to the pleadings, such trial will involve a determination on the issues of whether the defendant committed an armed robbery of Marie Nielsen and Carl Nielson who were in charge of monies of the TraveLodge at 921 Cherry, Kansas City, Missouri.
“Defendant is informed and believes, and hence alleges, that at said trial the State through witnesses will attempt to introduce evidence, make reference to, or otherwise leave the jury with the impression that the defendant had plead guilty or been adjudged guilty or been charged with any felonies.
“It is immaterial to and unnecessary for the disposition of said cause whether defendant has plead guilty or been adjudged guilty of any prior felonies, and any evidence, reference, or impression leading the jury to believe that such is the fact will be highly prejudicial to defendant.
“WHEREFORE, defendant requests that the Court order the State to not introduce evidence, make reference to, or otherwise leave the jury with the impression that the defendant has plead guilty, or been adjudged guilty, or been charged with any felonies.”

The court overruled this motion. In a discussion prior to the commencement of trial, Barnes’ counsel told the court Barnes had been convicted twice before and there was another charge pending in the same court at the time as this trial was to start. Counsel further stated there were possibly six or seven more charges that could be filed. He stated some or all of the people who were going to testify against Barnes knew of the other crimes and it would be irrelevant and prejudicial for such other crimes to be mentioned. The court then stated the mention of other crimes was to be avoided and the assistant prosecuting attorney readily agreed. In fact, the prosecutor stated the only way prior convictions would be brought up would be if Mr. Barnes took the witness stand. The trial proceeded and concluded without Mr. Barnes taking the stand or presenting any other evidence. No complaint is made, nor is any justified, that any evidence of any other crimes with which Mr. Barnes had either been charged or convicted was mentioned.

On this appeal Barnes states the question presented is whether a judgment of conviction may be shown while the conviction is under review in an appellate court. In his brief Barnes states he had one conviction of robbery in the first degree which had become final and one conviction which was under appeal, the case decided concurrently herewith. Barnes now urges the court erred in overruling his Motion in Limine because the court refused to rule that the conviction still pending on appeal could not be used to impeach Barnes.

Barnes cites State v. Blevins, 425 S.W.2d 155 (Mo.1968) for its holding that a conviction still pending on appeal may not be used for impeachment purposes when the defendant takes the stand.

Barnes is correct in his analysis of Blevins. However, Barnes did not raise any question in the trial court as to the use of a conviction on appeal. There was nothing in the motion filed to prohibit the use of such conviction, nor was there anything stated in the colloquy prior to trial that Barnes’ counsel had in mind trying to prevent the State from using a conviction on appeal for impeachment purposes.

“A litigant may not shift or broaden his trial objection on appeal.” State v. Adams, 531 S.W.2d 763[3, 4] (Mo.App.1975). Here, the objection Barnes raised at trial is not the objection he seeks to raise on this appeal. In fact the objection he raised at trial was agreed to by the trial court and there is no question that any evidence of Barnes’ conviction or other charges were used in any way against him.

The judgment is affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. Leo Darryl GRAHAM, Appellant.
    No. 28332.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.
    Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J, and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from conviction by a jury of robbery, first degree. The question is the sufficiency of evidence. Affirmed.

The sufficiency of evidence to support a guilty verdict is determined by taking as true all evidence tending to prove guilt, whether circumstantial or direct, together with all favorable inferences that it can reasonably support, disregarding contrary evidence and inferences. State v. Reed, 453 S.W.2d 946 (Mo.1970). So tested, the evidence, stated as follows, demonstrates a submissible case of robbery, first degree, of Ralph T. Coe by Leo D. Graham.

On January 17, 1975, at approximately 6:00 p. m., Ralph T. Coe arrived at his residence at 4511 Holmes, Kansas City, Jackson County, Missouri. Upon opening the screen door on his side door, he was confronted by a gun barrel pointed at him. Two men and a woman were in his home; the taller man was holding the gun. The intruders directed him to walk to his automobile where he was “spread-eagled” over the trunk, searched and deprived of his wallet containing $5.00. He was further directed to climb into the trunk of the automobile and, upon his refusal, was dragged, screaming for help, into his house where he was struck several times with a pistol held by his assailants. The house was lighted, and the victim faced his assailant for a minute and a half. When his neighbor, Julian W. Rymar, arrived in response to the call for help, the assailant put his gun to Mr. Coe’s head and took him outside where, as a result of further threats, he ran, ultimately escaping to Mr. Rymar’s house. Upon arrival of the police, Mr. Coe was injured and bleeding, and his shock and discomfort affected his ability to recount the incidents of the robbery and to describe the assailants. He subsequently described the assailant who held the gun as having “a kind of shovel-shaped face, afro hair, * * large drooping eyes * * * totally expressionless.” Four days after the robbery he was shown photographs of ten persons and he identified his robber from a picture of defendant. On the way to a line-up, he saw a man and a woman in the police garage and recognized the man, defendant, as his assailant. He also identified defendant as his assailant at a line-up, and made an in-court identification of defendant as his robber.

Also on January 17, 1975, around 6:00 p. m., Julian W. Rymar became suspicious of a pickup truck, occupied by a black woman, parked in front of his home at 4501 Holmes. He copied the license number on the truck and its ownership was subsequently traced to a Champlin filling station and U-Haul rental operator at 7th and Washington, Kansas City, Kansas. He heard Mr. Coe call for help, obtained his .45 Colt automatic pistol, and told his wife to call the police. He went out front and noted that the pickup had been driven to the front of Mr. Coe’s home; the woman driver was hidden, slumped down in the seat. Mr. Rymar broke the turn signal light lens on the left front of the truck and yelled to Mr. Coe’s assailants that he had them “covered.” They directed him to drop his gun and he gave it to the black woman, after which Mr. Coe was released to run, and the assailants ran to the truck and left. The police arrived at Mr. Rymar’s home around 6:10 p. m. He gave a description of the woman to Detective Zoulek. On January 21, 1975, he identified a black woman in the police garage as the female assailant. He retracted this identification following a line-up the following day in juvenile court. He subsequently identified one Venita Armor at a line-up in Kansas City, Kansas, as the black female who was in the pickup truck in front of his and Mr. Coe’s homes on January 17, 1975.

On January 17, 1975, at 6:40 p. m., Police Officer Kenneth M. Fleming saw a man and a woman, previously described in a police dispatch as the assailants in an armed robbery, in a Wyandotte County (Kansas) cab at 5th and Troost. He and a fellow officer pursued the cab, lost it temporarily when it turned left on Lydia, and ultimately stopped it at 7th and Lydia. The female gave her name as Venita Armor; the male was identified as the defendant. Both were wearing clothing matching that purportedly worn by the robbery suspects. The officers failed to confirm the parties as the robbers and released them. Further investigation resulted in recovery of Mr. Rymar’s .45 Colt at 5th and Lydia.

Detective Zoulek responded to the robbery report and interviewed Mr. Rymar, Mr. Coe, and neighbors across the street. He found Mr. Coe in an emotional state and did not question him long. He did get descriptions of the taller male and the female suspects, mainly of their heights and clothing. He also obtained a description of the pickup truck. On January 21, 1975, Detective Zoulek located the pickup truck at a U-Haul rental service at a Champlin filling station at 7th and Washington, Kansas City, Kansas. According to Len Bowlin, operator of the U-Haul and Champlin services, the pickup had been leased January 17, 1975.

Robert Hatton, driver of the Wyandotte County cab which was stopped by Officer Fleming on January 17, 1975, at 7th and Lydia, Kansas City, Missouri, had picked up the occupants ten to twenty minutes earlier at a Champlin station at 7th and Washington, Kansas City, Kansas.

Specifically, appellant complains of the identification testimony and of the quality of the circumstantial evidence.

Appellant asserts that “[t]he inconsistencies in the descriptions of the assailants by the State’s witness [Ralph Coe] merits close scrutiny by the Court.” He argues that Mr. Coe’s description of his assailant, the opportunity to see him, his inability to describe events immediately following the robbery, and Mr. Rymar’s description of the darkness rendered suspect Mr. Coe’s identification of defendant.

Mr. Coe was positive in his identification of defendant from photographs, lineup, and at trial. The description of the clothing worn by the assailants, obtained from him following the robbery, fit the description of the parties found in the taxicab subsequent to the robbery. He candidly admitted a difficulty, due to his injuries and shock, in reciting events immediately following the robbery, but made his identifications upon reflection without discrepancies. Mr. Coe’s testimony alone was sufficient to support a conviction of robbery, first degree, State v. Bass, 484 S.W.2d 250 (Mo.1972); and inconsistencies and weaknesses, if any, were for the jury, State v. Watson, 511 S.W.2d 890 (Mo.App.1974).

Appellant contends that the circumstantial evidence introduced to substantiate Coe’s identification did not eradicate the believability of defendant’s alibi defense, asserting that “[w]hen the prosecution proves its case by circumstantial evidence, all inferences of guilt must be consistent with each other and inconsistent with any reasonable hypothesis of innocence. State v. Sallee, 436 S.W.2d 246, 249 (Mo.1969).”

Suffice to say that because this verdict can stand on the testimony of Mr. Coe, there was direct evidence in support of the verdict, and the circumstantial evidence rule cited by appellant has no application. Finnegan v. United States, 204 F.2d 105 (8th Cir. 1953), cert. den. 346 U.S. 821, 74 S.Ct. 36, 98 L.Ed. 347, reh. den. 346 U.S. 880, 74 S.Ct. 118, 98 L.Ed. 387. Neither is it necessary to evaluate the alibi defense because it may be disregarded in determining the submissibility of the State’s case. State v. Reed, supra.

Judgment affirmed.

All concur.


author: PRITCHARD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Charles L. SPENCER, Appellant.
    No. KCD 28471.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.

      MeMullin, Wilson & Schwarz, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

In a trial to the court without a jury appellant was found guilty of the crime of carrying a concealed weapon (§ 564.610 RSMo 1969), and was sentenced to two years imprisonment in the Department of Corrections.

The sole issue appellant presents here is the sufficiency of the evidence to sustain the conviction.

The events leading up to appellant’s arrest on the charge began shortly after midnight on September 18, 1975. At that time Patrolman David Ray was sitting in his police car talking to another patrolman who was in another police car. Two cars then pulled into the lot, one of them with the horn honking to attract the officers. One car stopped and appellant got out and advised the officers that the person in the second car had a shotgun and was chasing him. That person was immediately taken into custody, frisked, and the car was searched, but no weapon other than a pool cue was found.

Shirley Savage was in the car with appellant. She informed Patrolman Wayne Smith that appellant had abducted her from her home at gun point, and had threatened to kill her. She told the officer that appellant had a gun underneath the driver’s seat of the car. Upon search the officer found a loaded 9 millimeter gun under the driver’s seat near the door. The officer could not see the gun when he opened the car door, but found it when he knelt down and felt underneath the seat. Appellant was then arrested, and upon questioning, first denied that he knew anything about the gun, but later told Officer Smith that he had the gun for his protection.

At trial Shirley testified that what she told the officer was false, but she admitted telling him that appellant had the gun, and testified that she was angry with appellant at the time she lied to the officers. She further testified that the gun was hers and that she had placed it under the seat when appellant got out of his car. Shirley had not told the police that the gun was hers before trial. Appellant testified that he did not know that Shirley had the gun in the car and that he did not put the gun under the seat.

Under State v. Achter, 514 S.W.2d 825, 827[3-7] (Mo.App.1974); and State v. Jordan, 495 S.W.2d 717, 720[5] (Mo.App.1973), the evidence was certainly sufficient for the court to find appellant’s guilt because under those cases the elements of the offense were shown: (a) the carrying of a dangerous or deadly weapon; (b) concealed on or about the person; and (c) along with an intent to conceal. The gun here was under the seat where appellant had been sitting, in such close proximity to him so as to be within his easy reach and convenient control. The officer’s testimony of finding the weapon shows that it was not discernible by ordinary observation, and the “demonstrated concealment” supplies by presumption the necessary intent. Achter and Jordan supra. Appellant’s admission that the gun was for his protection is here an important fact for the court to consider in resolving the matter of the credibility of the witnesses, which is its function. State v. Small, 423 S.W.2d 750, 751[1, 2] (Mo.1968); State v. Hall, 525 S.W.2d 364, 364[1-3] (Mo.App.1975).

The judgment is affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. Doyle E. WILLIAMS, Appellant.
    No. KCD 28504.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.
    Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment of conviction and five-year sentence upon verdict of jury finding Doyle E. Williams guilty of carrying a concealed weapon. § 564.610, RSMo 1969.

On the afternoon of June 17, 1975, two Kansas City police officers on routine patrol in an unmarked vehicle saw an automobile “run” a traffic signal at 39th and The Pa-seo. They pursued the vehicle and, using red lights and a siren, pulled it to the curb. The officers approached the vehicle, a Lincoln Continental with three persons in it, later identified as Jerome Wright, the driver, Edward Nimrod, the front seat passenger and owner of the auto, and appellant Doyle E. Williams, a passenger in the rear seat.

When the officers reached the car, Officer Moss on the driver’s side asked for the driver’s license. His attention was drawn to Williams because he noticed a fur piece which had been in the rear window as they approached was draped over Williams’s leg. Officer Bass, on the other side of the auto, asked Williams what was under the fur. Williams raised it and Moss saw the butt of a gun sticking out from under Williams’s leg. He ordered Williams from the car, got the gun and placed Williams under arrest for carrying a concealed weapon. The weapon, a loaded .32 caliber handgun, was seized and offered in evidence at Williams’s trial.

The other men were ordered out of the car and when Officer Moss went to the passenger side of the Lincoln, he saw the grips of a weapon under the passenger side of the front seat. The weapon, a .22 caliber High Standard nine-shot handgun, fully loaded, was seized and Nimrod placed under arrest for carrying a concealed weapon. Both Williams and Nimrod told the officer that they knew nothing about the weapons.

At Williams’s trial, the officer testified to the finding of the weapons and both were introduced in' evidence, the one in the front seat over objection of defense counsel.

Williams testified in his own behalf that he was going home after having been looking for a job. He was waiting for a bus when Wright and Nimrod offered him a ride home. He got in the back seat, saw no weapon and knew nothing about the weapon which the officer claimed to have found when the auto was stopped by the police. Nimrod was called as a witness by the defendant. He declined to answer any question about the ownership of the weapons, relying upon the privilege against self-incrimination.

The jury returned a verdict of guilty and fixed the punishment at five years’ imprisonment.

On this appeal, three rulings of the trial court on evidentiary matters are attacked as erroneous. One point advanced by appellant is meritorious. The other two relate to matters which need not recur on a new trial, so they will not be dealt with here.

Appellant’s meritorious point is based upon the admission into evidence of the weapon found in the front seat of the automobile. He contends that such evidence was “irrelevant, constituted proof of other crimes, was not connected to appellant and was introduced for the sole purpose of inflaming and prejudicing the jury against appellant.”

The state correctly points out that this contention is not to be determined by the holding of the case of State v. Holbert, 416 S.W.2d 129 (Mo.1967), relied upon by appellant, where the evidence of the possession by the defendant in a concealed weapon charge of other concealed wéapons was held violative of the rule prohibiting evidence of other offenses. Holbert involved evidence of other offenses by the defendant on trial, not the situation here. See State v. Jones, 523 S.W.2d 152, 155[5, 6] (Mo.App.1975).

What is involved here is basically the question of the relevancy of the evidence that Nimrod also possessed a concealed weapon, and more particularly the demonstrative evidence to that effect involving the introduction into evidence and display to the jury of the second weapon.

The state advances no particular ground of relevance of the second weapon. At the trial, the prosecutor offered it on the theory that “the physical evidence found at the scene of the arrest of both of them are (sic) inseparable, actually; and, I feel that it would be prejudicial to the State not to be permitted to show the presence of the other gun.” On this appeal the position of the state is stated a bit more precisely as upholding the evidence of the second weapon “as proof of the circumstances of appellant’s offense” and of the circumstances surrounding his arrest.

The state relies upon the case of State v. Scanlan, 308 Mo. 683, 273 S.W. 1062 (1925). That case involved a concealed weapon charge against a defendant riding in the front seat of an automobile. Three weapons were found upon the seat. Over the objection of defense counsel based upon relevancy, the arresting officer was permitted to testify that there were also three revolvers on the floor of the back seat of the automobile in which there were four other passengers. The admission of such evidence was assigned as error on appeal. The Supreme Court held that there was no error in the admission of the evidence of the guns in the rear seat. The court stated (273 S.W. 1064):

“* * * Of course, defendant could not be held criminally responsible for the acts of his companions, in the absence of proof of a conspiracy; but it is always proper to show the facts and circumstances surrounding and attending the alleged criminal act of a defendant on trial on the theory that such facts constitute part of the res ges-tae.”

Insofar as the opinion in that case shows, the weapons in the rear seat were not placed in evidence and the objected to testimony was the single reference to their presence in the automobile. In this case, both officers testified to the finding of both weapons, the second weapon was placed in evidence, along with testimony that it was fully loaded when the officer discovered it, Nimrod was cross-examined about the ownership of the second weapon, and finally its presence was referred to in the prosecutor’s closing argument. Thus the fact of the second weapon was kept before the jury throughout the trial and there was not merely an incidental reference to it. See State v. Walker, 490 S.W.2d 332 (Mo.App.1973).

The inherently prejudicial nature of demonstrative evidence of weapons not connected either with the defendant or with the offense for which he is tried has been frequently recognized. Thus, in State v. Wynne, 353 Mo. 276, 182 S.W.2d 294 (1944), prejudicial error was found where the state used a weapon as a part of a demonstration and there was no evidence that the defendant had or used a weapon of the type employed in the demonstration. In that case the court observed: “The objection to the introduction of weapons or other demonstrative evidence, especially when not connected with the defendant or his crime, on the ground of unfair prejudice is based on sound psychological and philosophical principles.” 182 S.W.2d 300. In State v. Smith, 357 Mo. 467, 209 S.W.2d 138 (1948), where the defendant was charged with burglary and stealing, the introduction into evidence of revolvers owned by the defendant and found in his wife’s purse at the time of his arrest, sometime after the offense charged, was held reversible error. The court there pointed out that the state in no manner connected the weapons with the offense charged and concluded: “That the introduction in evidence, before this mixed jury, of these lethal weapons, under the circumstances, was erroneous and prejudicial is self-evident.” 209 S.W.2d 142.

In State v. Lindner, 282 S.W.2d 547 (Mo.1955), revolvers found inside a store in which the defendant, charged with burglary, was arrested and not belonging to the owner, were held admissible on the burglary charge as evidence of the intent with which the breaking and entering were done. With respect to the weapons themselves as evidence, the court noted (282 S.W.2d 552):

“* * * We are of the opinion that the testimony that the revolvers were found was relevant, under the particular facts of this case, on the question of intent, and that the weapons were sufficiently connected with the defendant and the crime charged to themselves become relevant and to possess some slight probative value as evidence. State v. Wynne, 353 Mo. 276, 287, 182 S.W.2d 294, 299[6] [7]; State v. Miller, [364] Mo. [320], 261 S.W.2d 103, 106[4]; Cf. State v. Smith, supra, 209 S.W.2d 141[7]. We may observe, however, that the prejudice naturally resulting from a display of firearms may often outweigh any relevant value as evidence the weapons themselves might have. The real relevant and material facts relating to the revolvers were that the revolvers were found and where and when they were found. It is difficult to see how an examination of those weapons by the jury would materially assist the jurors in determining any issue in the case. State v. Wynne, supra, 182 S.W.2d 299[6].”

In this case, the appellant’s offense was completed when he had one weapon on or about his person intentionally concealed. The fact that Nimrod in the front seat also had a concealed weapon has no logical connection with the proof of the offense with which appellant was charged. All of the evidence required to prove appellant’s offense was possessed by the officers before they turned their attention to Nimrod and found the gun in the front seat. The state did not attempt to limit its proof to those facts and obviously sought the benefit of the evidence pertaining to Nimrod’s weapon and persistently drew such evidence to the jury’s attention.

Given the absence of any logical connection with the offense charged and the inherently prejudicial nature of the demonstrative evidence of the second weapon, the trial court’s overruling the appellant’s objection to such evidence was erroneous.

Reversed and remanded.

All concur.


text:
    STATE of Missouri, Respondent, v. Kenneth S. PETERSON, Appellant.
    No. 28295.
    Missouri Court of Appeals, Kansas City District.
    Nov. 4, 1976.
    Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

A jury in the Jackson County Circuit Court found Kenneth S. Peterson guilty of robbery in the first degree with a deadly weapon. The jury could not agree upon punishment and the court fixed the sentence at 50 years’ imprisonment. The defendant appeals from the ensuing judgment.

Shortly before noon on November 29, 1974, three black males entered the Altman Jewelry Store, located on 11th Street between Main and Walnut in Kansas City. They announced a holdup. One of them, subsequently identified by an Altman employee as appellant Kenneth S. Peterson, was carrying a revolver with which he smashed a display case containing diamonds. He removed rings and other items from the case and the three left the store.

A man going to lunch had seen a green Cadillac stop at 11th and Walnut. Three black men got out of the auto and a woman drove it away. He next saw the men in Altman’s and saw that a holdup was in progress and called police. Another man with the first man saw the three blacks leave Altman’s and go toward Macy’s on Main Street.

A customer in Macy’s saw a black man running through Macy’s. He dropped two or three rings which were found to have come from Altman’s. A Macy employee saw a young black man come out of the Macy Baltimore entrance and get into a green Cadillac double parked on Baltimore near 11th Street. He saw a second Negro male carrying a paper sack that appeared to contain a riser used in jewelry display cases. This man also got into the Cadillac. A third black man, running from the loading dock area of Macy’s on Baltimore, was almost struck by the driver of an automobile.

Patrolman Raymen Kerfoot of the Kansas City Police Department was on traffic patrol duty in downtown Kansas City. At approximately 11:50 A.M. he heard the police dispatcher radio call of a holdup in progress at Altman’s. The call said that three black males in a green Cadillac were involved and that the vehicle might be in the vicinity of 10th and 11th and Baltimore. Kerfoot went to 10th and Baltimore and saw a green Cadillac parked at around 1009 Baltimore. He saw three persons in the car as he approached. One got out and ran south on Baltimore. Kerfoot ordered the occupants out of the auto. When he did so a shot was fired from the vehicle, striking Kerfoot. The vehicle then left.

A man on his way to lunch had seen Kerfoot approach the Cadillac. He said Kerfoot sort of stuck his head in the car, started to draw his service revolver, and then “was literally blown right up against this wall.” The man noted the license number of the Cadillac and reported it to police. Police found that the license had been issued for a Cadillac owned by appellant.

On December 15, 1974, a green Cadillac bearing the license number and owned by appellant was discovered by police at 1424 Armour Road, North Kansas City. The vehicle was taken to police headquarters and searched. Among items found in the automobile were two rings identified as having been taken from Altman’s. Analysis of sweepings from the car showed the presence of glass fragments which matched the glass of the counter top at Altman’s broken in the robbery.

On his trial, appellant denied participating in the robbery and offered alibi evidence. He also produced evidence that he had left his Cadillac at a service station at around 10:00 A.M. the day of the robbery and that the owner of the station had noticed around 2:00 P.M. that the auto was missing and reported to police that it had been stolen.

■ On this appeal the sole contention of appellant is that evidence presented by the state of the assault upon Officer Kerfoot was erroneously admitted because it constituted proof of another offense, was irrelevant to the charge against appellant, and was highly prejudicial.

The prosecutor did refer to the Kerfoot shooting in his opening statement and closing argument. Officer Kerfoot testified to it. The bystander who reported the license number to the police also testified to his observation. Two women in the auto which almost struck the black man near Macy’s saw the shooting and testified to it. An officer who came to Kerfoot’s assistance testified to seeing him lying in the street after he had been shot.

All of this evidence was admitted over appellant’s objection that it constituted evidence of another offense. In this court he argues that the evidence dealing with the assault upon Kerfoot did not tend to establish that he participated in the robbery and therefore it was error to have admitted it. Appellant acknowledges that evidence of the commission of a crime separate and distinct from that for which a defendant is on trial is not for that reason inadmissible when it has a legitimate tendency to establish the guilt of the defendant of the charge for which he is being tried. State v. Garner, 530 S.W.2d 420, 423[5] (Mo.App.1975). His charge of error is based upon the erroneous assumption that the evidence of the assault upon Kerfoot did not link appellant to the robbery.

As appellant contends, none of the persons who testified to the assault upon Kerfoot could identify the assailant. None identified appellant as being with the assailant or in the Cadillac. However, the circumstances above recited, shown by the state’s evidence, were sufficient to link the green Cadillac at which the officer was shot to the robbery. When the ownership of the vehicle was then traced to appellant, the evidence bolstered the identification testimony of the one eyewitness who identified appellant from having seen him at the jewelry store. If the evidence logically supported the state’s theory of guilt, the fact that it incidentally showed another offense is no reason for its exclusion. Being relevant, no objection can be based upon a claim that the evidence was prejudicial. The state was not required to “nicely sift and separate the evidence” of another offense but had the right to show the facts of the continuous occurrence inextricably linked with the robbery for which appellant was on trial. State v. Mangercino, 325 Mo. 794, 30 S.W.2d 763, 765[5] (1930); State v. Childers, 313 S.W.2d 728, 733[10] (Mo.1958); State v. Jasper, 521 S.W.2d 182, 183-184[1] (Mo.App.1975). Those cases and the rule there applied control this case rather than cases such as State v. Holbert, 416 S.W.2d 129 (Mo.1967) and State v. Lee, 486 S.W.2d 412 (Mo.1972), cited by appellant. In those cases the evidence involving other offenses did not logically aid in proof of the charge on trial and its admission was held error. As has been demonstrated, the evidence here objected to was part of a chain of continuous circumstances, linking appellant to the robbery. Such fact also distinguishes this case from that of State v. Williams, 543 S.W.2d 563 (Mo.App.1976), decided concurrently with this case.

Judgment affirmed.

All concur.


author: HOGAN, Judge.

text:
    Wilma ROSS et al., Petitioners-Respondents, v. CONCO QUARRY, INC., and Graystone Quarry Company, Defendants-Appellants, and George W. Reed and J. Dan Woodall, as Judges of the Greene County Court, Defendants.
    No. 9754.
    Missouri Court of Appeals, Springfield District.
    Nov. 3, 1976.

      W. Ray Daniel, B. H. Clampett, Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for defendants-appellants.
    John R. Lewis, Bruce K. Kirby, Kirby, Lewis, Cohick & Franks, Springfield, for petitioners-respondents.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   HOGAN, Judge.

By order dated June 5, 1973, the County Court of Greene County vacated a segment of a public road referred to here as Old Melville or Graystone Road. A hearing was held, but no stenographic record of the hearing was made. Upon petition for review filed pursuant to Rule 100 (Chapter 536, RSMo1969, V.A.M.S.) the Circuit Court of Greene County, over the appellants’ objection that the court had no jurisdiction, remanded the cause for the preparation of a record. See In re Village of Lone Jack, 419 S.W.2d 87, 90[3] (Mo. banc 1967). Thereafter on December 11, 1973, the county court heard evidence, received exhibits and on January 16, 1974, again vacated the same part of the same road. On January 25 the remonstrants filed a notice of appeal in the circuit court, purportedly in compliance with § 49.230, and on January 28 filed a petition for review of the second order of vacation. The circuit court set aside the second order of vacation on the ground that it was not supported by competent and substantial evidence on the whole record. Cone o and Graystone Quarries, which were permitted to intervene in the first circuit court proceeding pursuant to Rule 100.04(c), now appeal from the judgment setting aside the second order of vacation.

The appeal has been meticulously briefed and argued in this court on two points. The first point made by appellants presents a question of statutory construction. Summarized, the appellants’ principal contention is that because the respondents did not file the notice of appeal required by § 49.-230 following the first order of vacation and because compliance with § 49.230 was mandatory and jurisdictional, therefore: 1) all acts and events subsequent to the first order of vacation, i.e., the remand to the county court, the second hearing, the second order of vacation, the second review proceeding and the review itself were nullities, and in consequence, 2) the first order of vacation is a valid and subsisting order in all respects, and the circuit court erred in purporting to exercise jurisdiction over the subject matter. Respondents counter with several arguments. They say that neither § 49.230 nor Rule 100.04 (§ 536.110) provides an exclusive method for review of a valid administrative order, and further argue that the circuit court always has jurisdiction to review and remand a void order. The respondents further maintain that absolute compliance with § 49.230 was not mandatory because § 228.120(2) provides the specific procedure to be used in seeking review of an order vacating a public road pursuant to § 228.110.

A preliminary word about the first order of vacation and the first review proceeding in the circuit court seems appropriate. The county court’s record shows on its face that the court issued its first order without obtaining a report from the county highway engineer, as required by § 228.070. Therefore, the first order was absolutely void. Morris v. Karr, 342 Mo. 179, 183-184, 114 S.W.2d 962, 964-965[3][4] (1938); Burrows v. County Court of Carter County, 308 S.W.2d 299, 301[1] (Mo.App.1957); Tummons v. Stokes, 274 S.W. 528, 529[2] (Mo.App.1925), cert. quashed, State ex rel. Tummons v. Cox, 313 Mo. 672, 680, 282 S.W. 694, 695-696[5] (banc 1926). Whether one considers § 49.230 or § 228.120(2) as prescribing the proper or exclusive method of procedure, the circuit court’s jurisdiction was appellate, not original jurisdiction. § 478.-070(4); and see State ex rel. Board of Registration for the Healing Arts v. Elliott, 387 S.W.2d 489, 492-493[2, 3] (Mo. banc 1965). In this state, appellate courts acquire no jurisdiction on appeal from a void order except jurisdiction to determine the invalidity of the order or judgment appealed from and dismiss the appeal. Kansas City Sanitary Co. v. Laclede County, 307 Mo. 10, 14-15, 269 S.W. 395, 397[2][3] (banc 1925); In re Moore's Estate, 354 Mo. 240, 249, 189 S.W.2d 229, 234-235[6] (1945); Morris v. Karr, supra, 342 Mo. at 184, 114 S.W.2d at 965[4]. Inasmuch as the county court’s first order was void on its face, the circuit court might properly have dismissed the appeal or petition for review of the first order, but it could do no more. The circuit court did not dismiss the petition for review; it expressly and in terms assumed jurisdiction and remanded the case, which was in itself an exercise of appellate judicial authority. See Durwood v. Dubinsky, 361 S.W.2d 779, 783[1] (Mo.1962). We therefore conclude that to the time the county court commenced the hearing which led to the second order of vacation the whole proceeding was a nullity.

Nevertheless, it was not necessary to begin completely anew. We grant that a court of general jurisdiction, having exhausted its adjudicative function and having entered a final judgment, cannot thereafter vacate the first judgment by entering another. State ex rel. Berbiglia v. Randall, 423 S.W.2d 765, 769[5] (Mo. banc 1968). In this case, however, the county court had never validly exercised its authority up to the time the second hearing was begun. Its action in resuming the hearing, receiving further evidence and entering a new order undoubtedly had the effect of vacating and abrogating the first, void order, St. Louis County v. Menke, 95 S.W.2d 818, 820 (Mo.App.1936), and in our view the county court was at liberty to consider the petition for vacation as if the first, void order had never been entered. The record clearly shows that the respondents did not comply with the requirements of § 49.230 after the second order of vacation was entered and therefore the procedural question remains the same: Does § 49.230 prescribe the mandatory and exclusive procedure to be followed in seeking review of an order of a county court vacating a public road? If so, it may be granted that strict compliance with the prescribed procedure is mandatory and jurisdictional. Brogoto v. Wiggins, 458 S.W.2d 317, 318-319[2, 3] (Mo.1970); American Hog Co. v. County of Clinton, 495 S.W.2d 123, 127[7] (Mo.App.1973); In re City of Duquesne, 313 S.W.2d 65, 69[6] (Mo.App.1958).

For a number of reasons, we do not believe § 49.230 was legislatively intended to provide such an exclusive procedure. Section 49.230 was enacted by the 70th General Assembly in 1959, Laws of Mo.1959, S.B. 65, pp. 4-5. In material part, it reads (emphasis supplied):

“Appeals from the decisions, findings and orders of county courts of a quasi-judicial nature affecting private rights shall be made within ten days from the date of the decision, findings or order by filing notice of appeal with the county court. . . . The circuit court shall proceed to hear and determine the case in the manner provided by section 536.140, RSMo. Appeal from the decision on review may be taken by the county court or other aggrieved party as in civil cases.’’

Perhaps it can be said that an order of a county court vacating a public road, or part of a public road, is a quasi-judicial order. Duenke v. St. Louis County, 358 Mo. 91, 98, 213 S.W.2d 492, 496[6] (1948); Kelley v. Waymeyer, 356 Mo. 1043, 1046, 204 S.W.2d 744, 745[1] (1947). But while we are conversant with the authorities which give the phrase “private right” a broad definition in the context of administrative rulings, e. g., State ex rel. State Highway Commission v. Weinstein, 322 S.W.2d 778, 783[2-4] (Mo. banc 1959); Smith v. Missouri State Highway Commission, 488 S.W.2d 230, 234-235 (Mo.App.1972), we do not believe the order of vacation affected the quarries’ “private rights”. One of the appellants’ principal concerns here is their expenditure in repairing parts of the road damaged by their heavy equipment. According to Mr. Innes, employed by Gray-stone, the quarries use the segment of the road involved in their commercial operations. Heavy vehicles used by the quarries and their customers cause damage to the road, and the quarries have spent more than $10,000 repairing that damage in the 15 years preceding the county court’s second hearing. Mr. Innes testified that the appellants “have seal-coated the road numerous times, we have repaired pot holes, we call them ... we have resurfaced at least a quarter mile of the road and [have made] other numerous repairs.” At one point during the hearing the appellants offered to construct a sort of alternate route, at their expense, to replace the section of road to be vacated. We are in no doubt that the cost of repairing and maintaining the road is a matter of legitimate, even pressing concern to the quarries, and we do not suggest that an order of vacation would be invalid merely because it operated to their benefit; we do suggest that the damage suffered by the appellants because of the existence of the road differs from that suffered by the public only as a matter of degree, and that their voluntary expenditure gives them no “private right” to have the road vacated.

We do not, however, place our decision on the ground that no “private rights” were affected, although we believe that to be the case. In our view, the basic fallacy of the appellants’ position appears upon consideration of the history and language of § 228.-120(2), with which the respondents fully complied. Present § 228.120(2) was enacted by the General Assembly in 1949, Laws of Mo.1949, p. 558, and in its original form read (our emphasis):

“Section 8477.
3. Any order of the county court establishing or vacating a public road shall be subject to judicial review to the same extent and in the manner prescribed by an act of the 63rd general assembly found at Laws of Missouri, 1945, page 1054, approved March 20, 1946.”

The last sentence of the act refers to the original Administrative Procedure and Review Act, later codified as Chapter 536, RSMo 1949, and the statute, as codified, reads “in the manner prescribed by chapter 536, RSMo 1949.” In our opinion, it is this statute, § 228.120(2), not § 49.230, which prescribes the procedure to be followed in obtaining review of an order of a county court vacating a public road. Following the principle that statutes must be construed by considering their manifest purpose, historically considered, as well as the language used, Gladstone Special Road Dist. v. County Court of Clay County, 365 Mo. 1097, 1103, 293 S.W.2d 351, 355[4] (1956); Union Electric Co. v. Morris, 359 Mo. 564, 569, 222 S.W.2d 767, 770[2] (1949); and see 2A Sutherland, Statutory Construction, § 45.10, pp. 32-33 (4th ed. 1973), we conclude that between 1872 and 1921 the General Assembly, albeit by fits and starts, developed a complete and exclusive procedure for taking appeals from orders of the county court establishing or vacating public roads which was not expressly or impliedly repealed by the enactment of § 49.230 in 1959.

Statutes dealing with the establishment, vacation and alteration of public roads by county courts have been in existence at least since 1835, and the provisions of the “road law”, i. e., those statutes dealing with the establishment, vacation or change of a public road have been regarded as distinct and discrete even when encoded with other statutes. State ex rel. United Rys. Co. of St. Louis v. Wiethaupt, 238 Mo. 155, 167, 142 S.W. 323, 325 (banc 1911).

Appeals from orders establishing or vacating public roads were allowed beginning in 1872, Laws of Mo.1872, p. 139, §§ 50 and 71, but the right of appeal was limited; an appeal would lie from an order opening, changing or vacating a public road, but not from an order refusing to do so. State ex rel. United Rys. Co. of St. Louis v. Wiethaupt, supra, 238 Mo. at 166, 142 S.W. at 325; Aldridge v. Spears, 101 Mo. 400, 405, 14 S.W. 118, 119 (1890). Moreover, the 1877 and 1887 revisions of the road law omitted any equivalent of § 50 of the Laws of 1872, which had provided a procedure for appeal in road law cases, so that in 1908, the right to appeal was limited and the procedure for taking an appeal was governed by the general statute regulating appeals from county and probate courts. Sidwell v. Jett, 213 Mo. 601, 608-609, 112 S.W. 56, 58[3] (1908).

In 1909 a comprehensive revision of the road law was undertaken. Laws of Mo. 1909, p. 727. The right to appeal was extended to either party, petitioner or remonstrant, and an incomplete appeal procedure was established. Laws of Mo.1909 at 731-732, codified as § 10440, RSMo 1909. Nevertheless, the appeals provisions were not yet complete, because § 10440, RSMo 1909, provided no method for taking an appeal and no specific means of transferring an appeal to the circuit court. Our Supreme Court therefore held that § 10440 merely limited the general right of appeal conferred by § 4091, RSMo 1909. Clark v. Kilbride, 282 Mo. 101, 106, 220 S.W. 880, 881[2] (1921).

In 1917, the road law was once again revised. Laws of Mo.1917, p. 442. A specific procedure was established for taking appeals from orders of a county court establishing a public road, Laws of Mo.1917 at 448, codified as § 10629, RSMo 1919, but the 1917 revisions made no specific provisions for appeal from an order vacating a public road. However, in 1921, Laws of Mo.1921, pp. 594-595, the General Assembly reestablished the right of appeal from an order vacating a public road as part of the road law. In terms, and as material here, the act of 1921 provided (our emphasis):

“In all cases wherein it is sought to vacate a public road for any purpose by petition as now provided by law, there shall exist the right of appeal from the ordering [sic] and judgment so vacating any public road, from the county court to the circuit court by any party in interest in common as remonstrators, or as an individual affected thereby in any manner, by adopting the same procedure provided for appeals to the circuit court from a judgment of [the] county court in establishing a new road. .
“No notice of appeal in any road matter from [a] judgment establishing or vacating the same shall be necessary in any case.”

So by 1921, the statutes providing for appeals in cases involving the establishment or vacation of public roads had progressed from an incomplete statute restricting the right of appeal to those aggrieved by affirmative action to a scheme providing a special, exclusive statutory procedure for taking appeals from orders of a county court establishing or vacating a public road. The exclusive nature of the statutory procedure set up in 1917 and 1921 was recognized by our Supreme Court in Reynolds v. Potts, 305 Mo. 1, 264 S.W. 663 (1924). In that case appellants sought to appeal from an order of the Lincoln County Court establishing a public road under two general statutes, then §§ 2436 and 2584, RSMo 1919, governing appeals from the judgments and orders of a county court. Our Supreme Court noted that the statutes regulating appeals in public road cases had not been complied with, and held, 305 Mo. at 6-7, 264 S.W. at 664, that the statutory procedure for removal of a public road case from the county court to the circuit court necessarily excluded the application of any other method of transfer of the case to the circuit court. The court continued, 305 Mo. at 7, 264 S.W. at 664 (our emphasis):

“Even under a section less restrictive in terms this court held that the road law, in the matter of opening and vacating public roads, ‘makes its own provisions in respect of appeals and allows them in specified cases. The clear and necessary inference is that appeals are denied from all other orders in these road matters.’ ”

The statutory appeals procedure completed by the enactment of S.B. 107 in 1921, Laws of Mo.1921, pp. 594-595, was carried through the 1929 and 1939 revisions without change. In 1936, this court recognized the exclusivity of the appeals provisions of the road law in Wilson v. Wynn, 94 S.W.2d 961, 965[2] (Mo.App.1936). So, it may be seen that during the 28 years preceding the enactment of present § 228.120(2) the legislative history of the statutes and the case law indicate that the appeals provisions were intended to be complete and exclusive. A further question, then, is whether the enactment of § 228.120(2) indicated any change in legislative intent.

As indicated, § 228.120(2) was enacted in 1949. The act of which § 228.120(2) was a part, Laws of Mo.1949, p. 551, repealed several sections of the road law and enacted new statutes in lieu thereof. Sections 8475-8478, 8483 and 8484, RSMo 1939, were repealed and replaced by nine new sections dealing with the same subject matter, later codified as §§ 228.040-228.100, 228.120 and 228.130. The effect of the 1949 act was to split § 8475, RSMo 1939, into six new sections (§§ 228.040-228.090) which are virtually identical to § 8475, RSMo 1939. The two most important changes made by the 1949 act were changes in the provisions for condemnation and the provisions for appellate review of orders establishing or vacating a public road. The act eliminated detailed provisions for condemnation proceedings by enacting a new section, now § 228.-100, referring to the chapter on that subject. See revisor’s historical note to § 228.-040, and see County of Greene v. Hammons, 389 S.W.2d 843, 846 (Mo.1965). Also eliminated, as noted, were the detailed provisions for review.

These changes in the condemnation and judicial review provisions were made because the constitution of 1945, unlike the constitution of 1875, divested county courts of their judicial function. County of Greene v. Hammons, supra, 389 S.W.2d at 845; Rippeto v. Thompson, 358 Mo. 721, 726, 216 S.W.2d 505, 508[5] (1949). We believe, as the court did in County of Greene v. Hammons, supra, 389 S.W.2d at 846, that the General Assembly’s intent is persuasively indicated by the emergency clause which appears in Laws of Mo.1949, p. 554, § 2:

“Whereas the adoption of the Constitution of 1945 has placed a grave doubt upon the constitutionality of the present statutory procedure relating to the establishment and vacation of public roads, and because the establishment and vacation of such roads are of vital importance to the citizens of this state, this act is necessary for the immediate preservation of the public peace, health, and safety

In amending the appeals provisions, the General Assembly must be presumed to have been familiar with the construction placed upon the former act and the new statute must be construed in light of the defect it sought to remedy and of the usages, circumstances and conditions existing at the time the change was made. Darrah v. Foster, 355 S.W.2d 24, 31[12] (Mo.1962). Given the express declaration of purpose made by the General Assembly, and its presumed knowledge that the appeals sections of the road law had for 25 years been held mandatory and exclusive, we cannot hold that the General Assembly intended anything more than to alter the appeals or review provisions of the road law so as to bring them into compliance with Mo.Const. Art. V, § 22.

We reject appellants’ contention that the General Assembly intended to apply only the “scope of review” provision of Rule 100.07 (§ 536.140). As heretofore indicated, the language of § 228.120(2) must be considered in determining legislative intent. Note that the statute expressly refers to any order, and to chapter 536 and not merely to one section in that chapter, as does § 49.230. Some significance must be attached to the fact that § 228.120(2) provides the order shall be reviewed to the same extent and in the manner prescribed by Rule 100 (Chapter 536). We are unwilling to accept the appellants’ suggestion that the language of § 228.120(2) is mere legislative pleonasm; one of the commonplace rules of statutory construction is that some significance and effect must be given every word, phrase, sentence and part thereof, if possible. State ex rel. Wright v. Carter, 319 S.W.2d 596, 600[6] (Mo. banc 1958); Stewart v. Johnson, 398 S.W.2d 850, 853[4] (Mo.1966). In our opinion the phrase “to the same extent” refers to the scope of review and the phrase “in the manner” refers to the procedure for obtaining review.

We are further of the opinion that the appellants’ argument is fundamentally unsound because they would have a general statute, § 49.230, impliedly repeal a special statute, § 228.120(2), even though the two are not irreconcilably inconsistent or necessarily repugnant, and even though there is no indication of legislative intent that § 49.-230 should so operate.

Section 49.230 was enacted 10 years after § 228.120. The title of the act of which present § 49.230 is a part, Laws of Mo.1959, S.B. 65, p. 1, indicates that the act deals generally with county courts and county buildings. The immediate precursor of § 49.230 was § 2490, RSMo 1939 — § 2584 in the 1919 revision — the very statute held inapplicable to appeals in road cases in Reynolds v. Potts, supra, 305 Mo. at 6-7, 264 S.W. at 664. When § 49.230 was enacted in 1959, § 228.120(2) had, by express reference, provided an explicit, detailed procedure to be followed in seeking review of orders establishing or vacating public roads. As we have noted, § 228.120(2) replaced a special and exclusive statute governing appeals in road law cases. It is familiar doctrine that when the general act is later, the existing special statute will be regarded as maintaining an exception to the terms of the general statute, unless the special statute is repealed in express words or by necessary implication. State ex rel. City of Springfield v. Smith, 344 Mo. 150, 154-155, 125 S.W.2d 883, 885[5-8] (banc 1939); Tevis v. Foley, 325 Mo. 1050, 1054, 30 S.W.2d 68, 69[3-5] (1930). Section 49.230 neither expressly nor by necessary implication repeals § 228.120(2), and we hold that appeals from orders of a county court vacating a public road are governed by § 228.120(2). The respondents’ application for review was timely filed January 28, 1974, and the circuit court acquired jurisdiction of the second vacation proceeding. We find it unnecessary to decide whether there could conceivably be a case in which §§ 49.230 and 228.120(2) might reasonably be construed as providing alternate methods of seeking review.

The merits of the action require less discussion than the jurisdictional question. The circuit court set the county court’s order aside on the ground that the order was not supported by competent and substantial evidence upon the whole record. We must agree. Section 228.110 authorizes a county court to vacate a public road or part of a public road upon finding that the road or part thereof is “useless, and the repairing of the same an unreasonable burden upon the district or districts.” Factually, this case is similar in many respects to Burrows v. County Court of Carter County, supra, 308 S.W.2d 299, decided by this court in 1957. As the court then carefully pointed out, 308 S.W.2d at 304-305:

“Of course, the term ‘useless,’ as employed in the statute, should not be given an arbitrary and absurd interpretation, and the uselessness contemplated and required to permit vacation must be a practical, not an absolute, uselessness. Consult In re Trask, 45 Misc. 244, 92 N.Y.S. 156, 157-158(3); In re Howland, 58 Misc. 124, 108 N.Y.S. 1122, 1123. But, ‘useless’ is not here synonymous with ‘unnecessary’ or ‘unrequired’ [In re Coe, 19 Misc. 549, 44 N.Y.S. 910, 912(4)], and we perceive no reason why it should not be accorded its usual, ordinary and accepted meaning, i. e., ‘having, or being of, no use; unserviceable; producing no good end; answering no desired purpose.’ Webster’s New International Dictionary (2nd Ed.), p. 2807. See also Application of Baldwin, 218 Minn. 11, 15 N.W.2d 184, 187(4). It is said generally that whether a public road should be vacated usually depends upon whether it is of public utility . . and our Supreme Court has indicated that a finding of the ground for vacation . . .is, in effect, a finding ‘of no public utility.’ ”

The evidence, very briefly summarized, shows that another route would be available to the members of the public who use the vacated segment of road, but the petitioners’ evidence in itself shows that the road was being used a good deal at the time the county court held its second hearing. A traffic count made at various times by a registered engineer indicated that between 6:00 a. m. and midnight on November 2, 1973, 396 vehicles used the vacated segment of road; on November 3, 168 vehicles were counted. On Sunday, November 4, 68 vehicles used the road; on Saturday, December 1, 99 vehicles were counted and on Sunday, 67 vehicles used the road. The petitioners had evidence from the county highway engineer which indicates that the quarries operate on both sides of the road, and that their use of heavy equipment damages the roadbed. This witness testified on cross-examination that he had made no study as to how long the road had been in existence, had made no traffic count, and had no knowledge of the cost of maintenance, which was being borne by the quarries rather than Greene County or a road district. One of the appellants’ employees, Mr. Innes, testified as we have indicated: the quarries have spent more than $10,000 maintaining the road over a fifteen-year period, but the greater part of this repair has been made necessary by the quarries’ use of the road in their commercial operations. As the circuit court observed in its memorandum, the petitioners’ evidence disclosed: a) that the segment of road sought to be vacated is used continuously and extensively; b) nothing concerning any expenditure of public funds on the segment of road which was vacated. The remonstrants’ evidence was all to the effect that usual, everyday use of the road was being made by residents of Greene County every day, and that closing the road would be a serious inconvenience to the traveling public.

The county court seems to have based its decision in some measure upon a finding that travel over the vacated segment of the road is dangerous. Perhaps it is, and we are in no doubt of the county court’s good faith in ordering the vacation. We must agree, however, that the two statutory conditions, i. e., a total lack of utility and unreasonable public expenditure, are not established by the record. Accordingly, the judgment is affirmed.

All concur.

      . All references to statutes and rules are to RSMo1969, V.A.M.S., and V.A.M.R., except where otherwise noted.

      . Cf. Howe v. Callaway, 119 Mo.App. 251, 258-260, 95 S.W. 974, 976 (1906), and see Stahl Soap Corp. v. City of New York, 5 N.Y.2d 200, 182 N.Y.S.2d 808, 156 N.E.2d 443, 445[4] (1959); City of Stillwater v. Lovell, 159 Okl. 214, 15 P.2d 12, 16[1, 2] (1932); City of Rock Hill v. Cothran, 209 S.C. 357, 40 S.E.2d 239, 243[3] (1946); 39 Am.Jur.2d Highways, Streets, and Bridges § 145, at 518 (1968).

      . RSMo 1835, p. 544, § 24, read: “Any twelve householders of a township or townships, may make application to the county court, by petition signed by them, for the vacation of any road or highway as useless, and the repairing thereof an unreasonable burthen . . There was no statutory appeal. Section 27 provided that “[t]he judgment of the court shall be conclusive in the premises.”

      . As §§ 7831 and 7837, RSMo 1929, and §§ 8477 and 8483, RSMo 1939.