author: HIGGINS, Judge. BARDGETT, Chief Judge, WELLIVER, Judge,

text:
    STATE of Missouri, Respondent, v. Gerald H. LUMSDEN, Appellant.
    No. 61478.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1979.
    Rehearing Denied Dec. 6, 1979.

      Linda F. Dycus, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Michael El-bein, Asst. Atty. Gen., Jefferson City, for respondent.
   HIGGINS, Judge.

Appeal from judgment on conviction by a jury of robbery, first degree, transferred from the Court of Appeals, Eastern District, after opinion, to review principally whether the trial court abused its discretion in connection with defendant’s voir dire examination of the venire. Affirmed.

Appellant charges the information violated Rule 24.01 in that it did not show the statutory section which proscribes the charged conduct and the section which fixes punishment.

Present Rule 24.01 on which appellant relies became effective January 1, 1977. The information in question was filed July 30, 1975 at which time former Rule 24.01 was applicable. Former Rule 24.01 did not require, as does the present rule, that the information contain statute references for offense charged and punishment, and no prejudice appears from their absence in this case. State v. Deloch, 554 S.W.2d 559 (Mo.App.1977).

Appellant also charges the information is deficient in that it purports to charge defendant with first degree robbery but that he was actually tried for first degree armed robbery. He argues that because the information did not mention a weapon, he was tried, convicted, and sentenced for an offense not charged.

Defendant was charged, tried, convicted, and sentenced for robbery in the first degree under § 560.120 RSMo 1969. First degree robbery thus charged is committed by putting a victim in fear. The requisite element of fear was charged in the information, and defendant used a gun as his means of creating such fear. It is not necessary that the means of creating the fear be charged in the information. State v. Reed, 412 S.W.2d 187 (Mo.1967). Also, by reason of the foregoing, absence of a charge that a gun was used to create fear in the victim did not provide a ground of error in admission of the gun into evidence. State v. Crockett, 543 S.W.2d 314 (Mo.App.1976).

Appellant contends the evidence was insufficient to sustain a conviction. He argues that because the robber was shown to have worn a baseball hat, sunglasses, and bandages during the robbery, no positive identifications were made, and his conviction therefore rested on insufficient circumstantial evidence.

When a conviction rests on circumstantial evidence, facts and circumstances to establish guilt must be consistent with each other, consistent with guilt of the accused and inconsistent with any reasonable theory of his innocence; in such cases the evidence need not be conclusive of guilt, nor must the evidence demonstrate the impossibility of innocence. State v. Lee, 556 S.W.2d 25 (Mo. banc 1977).

Satisfaction of the foregoing requirement and sufficiency of evidence are demonstrated by evidence from which a jury reasonably could find that: On January 1,1975, at 6:30 a. m., a man wearing a baseball hat, overcoat, sunglasses and bandages over part of his face, entered Sambo’s Restaurant in St. Charles County. He pointed a pistol at a waitress-clerk, and ordered her to put money from the cash register into a paper bag. She did as directed, and put some $1,480 in five, ten, and twenty dollar bills into the bag. The robber took the bag and was observed by a number of witnesses to leave the restaurant, enter a white 1964 Chevrolet, drive to Interstate Highway 70, and proceed on that highway. Two restaurant employees followed the car and saw police who had been alerted to the robbery, stop it on the Missouri River bridge at St. Charles. Inside the car was a paper bag containing $1,480 in five, ten, and twenty dollar bills, the baseball hat, an automatic pistol, and white adhesive tape. The driver was wearing an overcoat of the same description as that worn by the robber at the holdup. He was not positively identified as the robber except he was said to match the robber’s general appearance. Defendant’s version of the circumstances, found incredible by the jury, was that he had been at Sambo’s but when he saw the robbery in progress he did not enter. Instead he returned to his car, but before he reached it, a man ran past him and entered the car. The man then left defendant’s car and jumped into another which had been driven nearby and that car left. Defendant then got in his car and left the area. He didn’t notice the bag of money in the front portion of his car and didn’t know how the gun got under his seat.

The principal question arises from appellant’s charges that the court’s rulings unduly restricted defendant’s voir dire examination.

Such ruling occurred when counsel attempted to question the panel on the term “reasonable doubt.”

MR. HAZELWOOD: Now I anticipate that His Honor will give you certain instructions at the close of the case.
Mr. Schroeder has alluded to those instructions. The Court’s going to instruct you that if you believe beyond a reasonable doubt that Mr. Lumsden is guilty, that you will return a verdict of guilty; and we’ve all watched television and things of that nature, and I just want to go into this a little bit at this time. What does the term ‘beyond a reasonable doubt’ mean to you?
MR. SCHROEDER: I’m going to object, Your Honor. I don’t think that—
THE COURT: Sustained.
MR. HAZELWOOD: Do you have any preconceived notion as to what that term means?
VENIREMAN JOHNSON: Yes.
MR. HAZELWOOD: What is your notion?
MR. SCHROEDER: Your Honor, I object. That’s not relevant.
THE COURT: Sustained.
MR. HAZELWOOD: Do you understand that it means more than a—
MR. SCHROEDER: Your Honor, I object. I don’t think he can define reasonable doubt at this time.
MR. HAZELWOOD: If I can’t go into this, these jurors are never going to know what this means and Mr. Lumsden is going to be prejudiced if any of them have an erroreous view of it.
THE COURT: The objection is sustained.
MR. HAZELWOOD: Do you have a notion that it means a mere probability—
MR. SCHROEDER: The same objection, Your Honor.
THE COURT: Sustained.
MR. HAZELWOOD: Do you have any notion that it involves a certain percentage—
MR. SCHROEDER: May we approach the bench, Judge?
THE COURT: Yes, you may.
(The following discussion was held out of the presence of the jury at the bench.)
MR. SCHROEDER: I ask that the defendant’s attorney be admonished not to go into this matter any further.
THE COURT: At this time you cannot go into it further. You can in closing argument but not in voir dire.
MR. HAZELWOOD: Let’s try and change some laws because I think it is a terrible terrible prejudicial thing. If I wanted to ask one juror who feels it is mere probability of guilt, that is not the law.
THE COURT: At this time you are not arguing the case. Your objection is sustained.

Appellant contends the trial court erroneously prevented defense counsel from making a full and complete inquiry into the legal qualifications of the jurors.

The purpose of voir dire examination is to enable each party to participate in selection of a fair and impartial jury. To that end, a liberal latitude is allowed in the examination of the panel. State v. Brown, 547 S.W.2d 797 (Mo. banc 1977). Nevertheless, the examination of jurors as to their qualifications is conducted under the supervision of the trial court and the nature and extent of what questions counsel may ask are discretionary with the trial court and the exercise of that discretion will be disturbed on appeal only when the record shows a manifest abuse of that discretion. State v. Mudgett, 531 S.W.2d 275 (Mo. banc 1975) cert. denied 426 U.S. 910, 96 S.Ct. 2234, 48 L.Ed.2d 835.

In State v. Smith, 422 S.W.2d 50 (Mo. banc 1967), defense counsel attempted to question the members of the jury panel “as to whether any of them have any personal feelings for or against the rule * * * pertaining to reasonable doubt.” The request was denied by the trial court. This court agreed and held that the trial court had not abused its discretion by denying counsel’s request to inquire into the panel’s feelings regarding the reasonable doubt standard.

MAI-CR 2d 2.20 tells the jury the State’s burden is to prove guilt “beyond a reasonable doubt.” Notes on Use provide that “No other instruction may be given elaborating further upon or attempting to define the presumption of innocence or reasonable doubt.” This direction was affirmed, State v. Lasley, 583 S.W.2d 511, 514 (Mo. banc 1979):

The law in Missouri is well-settled that a judge may not comment upon the phrase “reasonable doubt” and the notes on the use of MAI-Cr 2.20 forbid a trial judge from giving any other instruction that elaborates on, or attempts to define “reasonable doubt.”

The pattern instruction, accompanying notes on use, and case law demonstrate a policy that reasonable doubt is not to be further defined by the court, let alone by a juror. The trial court’s ruling on the questions in this case seeking what reasonable doubt “means” to jurors conforms with this policy. In such circumstances, it may not be said that the trial court’s ruling so limiting that line of inquiry constituted a manifest abuse of discretion.

The second ruling charged as error on voir dire occurred when the court refused to allow defense counsel to question jury panelists on their residence and related biographical data previously provided counsel by the circuit clerk’s office. Appellant argues this was necessary to “individual communication with each juror.” Under the standard of State v. Mudgett, supra, the trial court’s refusal to allow counsel to ask panelists questions, the answers to which he already knew, was not an abuse of discretion. See also State v. Scott, 515 S.W.2d 524 (Mo.1974).

Appellant also charges, as a subject of plain error, Rule 27.20(c), that he was denied a fair trial because he did not have effective assistance of counsel. He alleges counsel failed to advise him of his rights: (a) to challenge the psychiatric finding that defendant was competent to stand trial; (b) to put the doctor making that finding on the stand; (c) to have a sanity hearing out of the presence of the jury before trial on the charge. He also charges his counsel was remiss in failing to challenge the then existing jury selection process, since held unconstitutional in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

A contention of ineffective assistance of counsel at trial may be raised on direct appeal. State v. Cluck, 451 S.W.2d 103 (Mo.1970). However raised, defendant must show that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and that he was prejudiced thereby, Seales v. State, 580 S.W.2d 733 (Mo. banc 1979). The record in this case is not adequate for such determination and the matter is better left to proceedings directed to that purpose under Rule 27.26. State v. Blackwell, 459 S.W.2d 268 (Mo. banc 1970).

Judgment affirmed.

DONNELLY, RENDLEN and MORGAN, JJ., concur.

BARDGETT, C. J., and WELLIVER, J., dissent in separate dissenting opinions filed.

SEILER, J., dissents.

BARDGETT, Chief Judge,

dissenting.

I respectfully dissent and in so doing will utilize portions of the court of appeals opinion authored by Smith, J.

In my opinion the cause should be reversed and remanded for a new trial because the trial court erred in unduly restricting defendant’s voir dire examination to the prejudice of the defendant. The questioning of venireman Johnson is set forth in the principal opinion and need not be repeated here. Suffice it to say that it demonstrates that the prospective juror said that he did have a preconceived notion of what reasonable doubt means, after being informed that he would be instructed that to find the defendant guilty a juror must do so by a belief beyond a reasonable doubt. However, when the attorney for the defendant asked the prospective juror what that preconceived notion was, the court sustained the State’s objection to the question and defense counsel was prohibited from finding out what this preconceived notion actually was.

In State v. Brown, 547 S.W.2d 797 (Mo. banc 1977), this Court held at 799:

“The constitutional right to a trial by jury would be a mockery of justice if it did not guarantee a jury with open minds, freely able to follow the law as declared by the trial court. Faught v. St. Louis-San Francisco By. Co., 325 S.W.2d 776[1] (Mo.1959). Deeply ingrained in Missouri law lies the principle that ‘a liberal latitude is allowed in the examination of jurors on their voir dire .. The purpose of the examination by defendant of the panel on their voir dire is to develop, not only facts which might form the basis of a challenge for cause, but also such facts as might be useful to him in intelligently determining his peremptory challenges.’ State v. Granberry, 484 S.W.2d 295[4, 5] (Mo. banc 1972), citing a series of cases going back to the oft-cited case of State v. Mann, 83 Mo. 589 (1884). Specifically, a defendant has the right to discover whether prospective jurors have fixed opinions against applying the court-declared law of self-defense. Compare State v. Lassieur, 242 S.W. 900[2] (Mo.1922); State v. Dill, 282 S.W.2d 456[7-9] (Mo.1955).”

In State v. Miller, 207 S.W. 797, 798 (Mo.1918), the following was stated:

“The purpose of the examination by defendant of the panel on their voir dire is to develop, not only facts which might form the basis of a challenge for cause, but also such facts as might be useful to him in intelligently determining his peremptory challenges.”

For that reason a liberal latitude is allowed in the examination of jurors on voir dire. State v. Miller, supra; State v. Mann, 83 Mo. 589 (1884); State v. Granberry, 484 S.W.2d 295 (Mo. banc 1972); Littell v. Bi-State Transit Development Agency, 423 S.W.2d 34 (Mo.App.1967); State v. Coleman, 553 S.W.2d 885 (Mo.App.1977).

Littell, supra, quoted with approval from 31 Am.Jur. Jury § 139 (1958), as follows:

“Thus, reasonable latitude should be given parties in the examination of jurors to gain knowledge as to their mental attitude toward the issues to be tried for the purposes of aiding them in striking jurors, if they are not successful in challenging them for cause.” 423 S.W.2d 36-7. (Emphasis supplied.)

The State asserts that the rule announced in State v. Smith, 422 S.W.2d 50 (Mo. banc 1967), applies and that the court’s restriction on the questioning was proper. The rule announced in Smith is that the individual views of the veniremen concerning the law is “immaterial unless so unyielding as to preclude them from following the law under the court’s instructions.” Id. at 68. Parenthetically, it is observed that here the parties could not know if the venireman’s notion was “unyielding” or not because of the court’s ruling. In any event, inherent in the rule announced in Smith is the supposition that the jury will be instructed on the law. MAI-CR 2d 2.20 is a mandatory burden-of-proof instruction. It contains a reference to “reasonable doubt” but does not attempt to define the term. The Notes on Use to that instruction state:

“3. No other instruction may be given elaborating further upon or attempting to define the presumption of innocence or reasonable doubt.” (Emphasis supplied.)

Three of the six instructions given to the jury at the close of the evidence contain reference to “reasonable doubt”. The doctrine that a defendant must be found guilty “beyond a reasonable doubt” is the cornerstone and hallmark of the criminal law in this country. Since under the criminal procedure of this State no definition of this phrase is permitted, it is apparent that the jury is left to its own interpretation or definition of what is meant by “reasonable doubt”. They must apply a subjective standard without guidelines from the court. Under those circumstances, the potential juror’s preconceived opinions about the meaning of the legal phrase is not immaterial at all; it goes to the very heart of his qualification to serve.

At a minimum, therefore, counsel, either prosecution or defense, should be able to inquire whether the veniremen have such a preconceived opinion and if so what that opinion is. This is not to say that counsel has a right to utilize voir dire to define the phrase, to argue the meaning of the phrase, or to require each venireman to define the phrase. The court retains great discretion in determining the phrasing and the extent of the questioning that will be permitted.

Here, however, the questioning of the venire panel had elicited the information that one venireman had a preconceived notion of the meaning of the term “reasonable doubt”. In my opinion, it was error not to permit counsel to find out what that preconceived notion was in order to intelligently determine the qualifications of that venireman — both for the purpose of challenging for cause and to exercise peremptory challenges.

I believe the principal opinion misses the mark when it disposes of the point in part by the observation that reasonable doubt is not to be further defined by the court in the instructions. The purpose of the voir dire was not to define “reasonable doubt” but was to find out what this particular juror had as his preconceived notion concerning that matter. It may well be that this court ought to formulate a definition of reasonable doubt instead of allowing it to be whatever the jurors seem to think it is. Regardless of that, it is simply an obvious fact that a juror’s “preconceived notion” of reasonable doubt might very well be so extreme as to permit defense counsel to challenge the juror for cause, or at least to afford defense counsel the basis upon which to exercise his peremptory challenges. Whether the court instructs upon the subject or not is beside the point.

Would the juror have responded by saying that if at the conclusion of the evidence he thinks the defendant is probably guilty, then that is sufficient? Or might the juror have responded that if there was even the slightest doubt in his mind concerning guilt he would acquit? It is not fruitful to speculate on what a juror would say because voir dire examinations produce such varied and unexpected responses that speculating on the matter has little chance of becoming an accurate prediction. As it stands here, however, one of the veniremen had a preconceived notion as to what a very important aspect in the trial of a criminal case meant, and defense counsel was prevented from having that information available to him in connection with either the challenge for cause or the peremptory challenge.

The reasoning of State v. Brown, supra, applies to this case as do the other cases that have been cited supra and in my opinion requires that the judgment be reversed and the cause remanded for a new trial.

WELLIVER, Judge,

dissenting.

I respectfully dissent from the result and holding of the principal opinion that a defendant may not question a juror on voir dire concerning the juror’s definition of “reasonable doubt” for any purpose. Also, I respectfully disagree with the views of Bardgett, C. J., expressed in his dissenting opinion filed herein that a defendant may question a juror on voir dire concerning the juror’s definition of “reasonable doubt” for the purposes of formulating both challenges for cause and peremptory challenges.

While I agree that a party cannot use a juror’s preconceived definition of “reasonable doubt” as a basis for challenging a juror for cause, I believe that a defendant may question a juror concerning his definition of “reasonable doubt” for the purpose of formulating peremptory challenges. This is not a case in which the trial court refused questions that would serve neither the purpose of gathering information to support a challenge for cause nor the purpose of gathering information that might lead to a peremptory challenge. The trial court in this case refused to permit questions which would elicit information that might help the defendant identify those jurors he may desire to remove by peremptory challenge. I consider the trial court’s action in sustaining objections to these questions an abuse of discretion. I would reverse.

The precise questions to which objections were sustained in this case were: “What does the term ‘beyond a reasonable doubt’ mean to you?” “What is your [preconceived] notion [as to what the term ‘reasonable doubt’ means]?” “Do you have a notion that [‘reasonable doubt’] means a mere probability — ?” The issue presented is whether questions on voir dire that seek to determine a juror’s definition of “reasonable doubt” could further either of the two purposes of voir dire examinations: (a) that of gathering information to support a challenge of the juror for cause, or (b) that of gathering information that might lead to a peremptory challenge of the juror. “The purpose of the examination by defendant of the panel on their voir dire is to develop, not only facts which might form the basis of a challenge for cause, but also such facts as might be useful to him in intelligently determining his peremptory challenges.” State v. Brown, 547 S.W.2d 797, 799 (Mo. banc 1977); State v. Granberry, 484 S.W.2d 295, 299 (Mo. banc 1972) (citing cases); State v. Mann, 83 Mo. 589, 599 (1884).

The principal opinion speaks of the public policy of this state as it is expressed in MAI-CR 2.20 and State v. Lasley, 583 S.W.2d 511, 514 (Mo. banc 1979). The principal opinion states that Missouri’s instructions, rules and case law express a policy “that reasonable doubt is not to be further defined by the court, let alone by a juror.” The policy reflected in MAI-CR 2.20 is the policy against complicating instructions unnecessarily and confusing jurors. The proscription against defining “reasonable doubt” in jury instructions is based on the belief that the terms cannot be usefully defined in other terms.

The Notes on Use to MAI-CR 2.20 do not disapprove a juror’s having a preconceived notion of the meaning of “reasonable doubt” — it depends on it. The proscription against defining “reasonable doubt” assumes that jurors, as speakers of the language, know the ordinary usage of the terms, and could not be aided by a court’s reformulation of the standard in other terms. No formulation in more basic terms is possible. The phrase “reasonable doubt” is itself so irreducibly basic that definition in terms of something else could not enlighten but would only confuse. Forbidding a jury instruction defining “reasonable doubt” not only avoids confusing the jury, it prevents the court from being drawn into unsolvable disputes about the prejudicial effect of deviations from a standard definition of that phrase.

The belief that “reasonable doubt” cannot be usefully defined also underlies the court’s reluctance to attempt to judge the adequacy of the definition of “reasonable doubt” in contexts other than that of jury instructions. If information concerning a juror’s definition of “reasonable doubt” could form the basis of a challenge for cause, this Court could not long postpone questions concerning the adequacy of the juror’s definition of “reasonable doubt”. There are four possibilities to consider. To rule that it is not error to deny or that it is error to grant a challenge for cause of a juror based on the juror’s preconceived definition of “reasonable doubt” is to determine that the juror’s definition was adequate; to rule that it is not error to grant or that it is error to deny a challenge for cause of a juror based on the juror’s definition of “reasonable doubt” would be to disapprove the juror’s definition. Making each of these judgments would require the Court to establish a standard definition of “reasonable doubt” against which to compare a juror’s definition to determine whether it is so extreme as to be prejudicial. Positing such a standard definition and weighing the prejudicial impact of a juror’s deviation from it would draw the Court back into the complexity and confusion that the Notes on Use to MAI-CR 2.20 were designed to avoid. I believe that the wisest course is to avoid passing on the adequacy of a juror’s preconceived notion of “reasonable doubt” altogether. Because permitting a juror to be challenged for cause based on the juror’s definition of “reasonable doubt” would require the courts to formulate a model definition of “reasonable doubt”, and because courts are no better able to avoid confusion than are jurors when they undertake to define “reasonable doubt” in terms of something else, I do not believe that a challenge of a juror for cause should ever be granted solely on the basis of the juror’s preconceived definition of “reasonable doubt”. This is not to say that a challenge of a juror for cause could not be based on answers indicating an unwillingness to obey the court’s instructions on, e. g., the state’s burden of proof, or an answers that provide other evidence of bias.

The challenge for cause is not the only device by which a defendant can participate in the selection of his jury, however. The right to use peremptory challenges is granted by statute. § 546.180, RSMo 1978. The second purpose of voir dire is to permit a defendant to make informed peremptory challenges. The questions which the defendant sought to ask in this case could have furthered this second purpose. The trial court’s refusal of questions on voir dire relating to preconceived notions as to the meaning of “reasonable doubt” went well beyond recognition of the futility of attempting to define a legal standard for reasonable doubt. This refusal amounted to a denial that such questions could elicit information that would be useful to a defendant in identifying jurors that he would want to include in his peremptory challenges. I think that such a limitation violates the principle that broad examination is permitted in voir dire. “Since bias often lies deep within the minds of prospective jurors, counsel should be allowed a wide latitude to expose that bias.” Brown, 547 S.W.2d at 799.

Conceivably, a very tall or very fat person charged with a crime might want to determine whether prospective jurors were hostile toward tall people or fat people. A defendant with shifty eyes and a heavy beard might desire to use his peremptory challenges to remove prospective jurors who harbor latent prejudices against people with shifty eyes or heavy beards. It would not be appropriate for a trial judge to so limit a defendant’s inquiry on voir dire that he could not elicit information about such prejudices, even though such petty biases might not support a challenge for cause. Accordingly, if a defendant wishes to use the peremptory challenge device to remove a prospective juror who entertains a notion of “reasonable doubt” that the defendant believes might decrease his chances of winning a verdict, he should be permitted to do so. A defendant should not be hampered in his inquiry into a juror’s preconceived notion of “reasonable doubt” for the purpose of informing himself whether he should challenge the juror peremptorily.

The right of a defendant to inquire as to a juror’s preconceived notion of the meaning of the phrase “reasonable doubt” for the purpose of making peremptory jury challenges requires that the judgment be reversed and the cause remanded for a new trial.

      . Thjs statement, coming at a pivotal point in the principal opinion, is somewhat opaque. If this statement means that the policy against defining “reasonable doubt” in jury instructions also forbids a juror to come to the courtroom with a preconceived definition of “reasonable doubt,” articulated or intuitive, I must disagree. It is because jurors are presumed to have an understanding of the phrase that a definitional instruction is considered unnecessary.

      . The policy underlying the rule against submitting a definition of “reasonable doubt” in jury instructions is evidenced in the authorities collected in Richardson, “Charge not Evidence, Presumption of Innocence; Burden of Proof; Reasonable Doubt” part III, p. 12, The Missouri Bar Committee Comments on Missouri Approved Criminal Instructions (1974):
      [0]ur courts have on several occasions held that it is impossible satisfactorily to define “reasonable doubt” and that attempts to do so are more likely to confuse than to enlighten. “In the nature of things it must be left largely to the trier of the facts. Reasonable doubt is reasonable doubt and that is about all that can be said in regard to it.” State v. Talmage, 107 Mo. 543, 17 S.W. 990 (1891). “The attempts of the courts to make the definition of ‘reasonable doubt’ by paraphrases more intelligible to juries are futile. We may change the form of the instruction, but we do not, and indeed cannot, remove the difficulty. As soon as a person formulates a definition in the clearest and most prespica-cious language he is master of, he has at once an irresistible desire to define the definition, and the more verbose the definition is the more ambiguous it is, as a rule.” State v. Wells, 111 Mo. 533, 20 S.W. 232 (1892). “It is difficult to explain simple terms like ‘reasonable doubt’ so as to make them plainer. 1 Bish.Crim.Proc., section 1094. Every attempt to explain them renders an explanation of the explanation necessary.” State v. Robinson, 117 Mo. 649, 23 S.W. 1066 (1893). “Every man who has sufficient intelligence to sit upon a jury in a trial of a felony case knows the meaning of ‘reasonable doubt’, and definitions of it tend to confuse rather than enlighten.” State v. Bond, 191 Mo. 555, 90 S.W. 830 (1905). “It is doubtful, as this court has repeatedly held, whether the defining of reasonable doubt tends toward clarity or the reverse thereof, it is just a little like the gilding of fine gold.” State v. Shaffer, 253 Mo. 320, 161 S.W. 805 (1913). See also State v. Wells, Mo., 305 S.W.2d 457 (1957); State v. Lafferty, Mo., 416 S.W.2d 157 (1967); State v. Davis, 482 S.W.2d 486 (Mo. 1973), concurring opinion of Judge Seiler.
      None of these cases hold that a juror may not define reasonable doubt. On the contrary, the “fine gold” which a definition of reasonable doubt would seek to “gild” is the juror’s understanding of the use of the phrase in ordinary language.

      . State v. Bond, 191 Mo. 555, 564, 90 S.W. 830, 833 (1905). “Attempts to explain the term ‘reasonable doubt’ do not usually result in making it any clearer to the minds of the jury.” Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 138, 99 L.Ed. 150 (1954); Miles v. United States, 103 U.S. 304, 312, 26 L.Ed. 481 (1880). A definition of “reasonable doubt” customarily offered in federal courts reads in part:
      It is not required that the government prove guilt beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense — the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs.
      1 E. Devitt and C. Blackmar, Federal Jury Practice and Instructions § 11.14 (3rd Ed. 1977). The definition that was approved for over a hundred years in Missouri may be found in State v. Nueslein, 25 Mo. Ill, 124 (1857):
      If you have a reasonable doubt of defendant’s guilt, you should acquit; but a doubt to authorize an acquittal on that ground, ought to be a substantial doubt touching defendant’s guilt, and not a mere possibility of his innocence.
      This definition has been criticized on at least four grounds: that it appears to shift the burden of proof to the defendant; that it is inaccurate because “reasonable” and “substantial” are not synonymous; that it is confusing to a jury because it states what “reasonable doubt” is not; and that it is argumentative, minimizing the state’s duty. Richardson, supra note 2, at 10-11. See, State v. Davis, 482 S.W.2d 486, 490 (Mo. 1973) (Seiler, J., concurring).


source: Caselaw Access Project

author: BARDGETT, Chief Justice.

license: Public Domain

text:
    Raymond M. KELTNER, Jr., Appellant, v. Judith Ann KELTNER, Respondent.
    No. 61016.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1979.
    Rehearing Denied Dec. 6, 1979.

      Keith W. Hazelwood, St. Charles, Eric C. Hensic, Ballwin, for appellant.
    Eric F. Tremayne, Clayton, for respondent.
   BARDGETT, Chief Justice.

On motion of appellant, Raymond M. Keltner, Jr. (husband), we transferred this case after opinion in the Missouri Court of Appeals, Eastern District. The principal reasons for transfer were (1) whether in this case the maintenance award to the wife was contractual or decretal, and (2) whether State ex rel. Stanhope v. Pratt, 533 S.W.2d 567 (Mo. banc 1976), is to be given retroactive application so as to apply to an order awarding alimony entered prior to Stan-hope.

The ease has been rebriefed and argued in this Court. The Court concludes that (1) the alimony award in this case was decretal and not contractual, (2) Stanhope is not retroactive and cannot be used as authority for imprisoning a person for civil contempt for failing to pay an alimony award entered prior to this Court’s decision in Stanhope, (3) the circuit court’s order and judgment of February 2,1977, adjudicating that appellant is indebted to respondent for back child support and maintenance (alimony) in the sum of $15,665.46 is affirmed, and (4) that the order and judgment of February 2, 1977, whereby respondent was ordered to pay attorney’s fees in the amount of $3,500 and special process service fees in the amount of $100.00, the same being impressed with a lien in favor of respondent’s attorney, and for costs of this action is affirmed.

The court of appeals determined that the alimony award was decretal and not contractual and that the court did not err in ordering respondent to pay wife’s attorney’s fees in the amount of $3,500. This court agrees and will utilize portions of the Missouri Court of Appeals opinion without the use of quotation marks.

As noted supra, the circuit court found appellant indebted to respondent in certain sums of money which the court found were due pursuant to the orders contained in the divorce decree of February 8, 1973, and upon other findings which will be mentioned infra found appellant guilty of contempt of court and sentenced the appellant to be committed to the Department of Welfare of St. Louis County for a period of ninety days. Appellant subsequently posted a supersedeas bond in the sum of $21,292 to insure satisfaction of the money judgment rendered in this case, should the same be affirmed on appeal, and was thereupon released upon his own recognizance.

Issue: Is the alimony award decretal or contractual?

On February 8,1973, the parties executed a written “Agreement” regarding custody and support of their minor children, division of property, alimony, and other miscellaneous items. The relevant provisions provide:

2. From and after the effective date of this Agreement, the Husband shall, as and for the support and maintenance of each of the aforesaid minor children, pay to the Wife the sum of One Hundred Thirty Five Dollars ($135.00) per child per month, for each of the aforesaid minor children. The payments shall be made semi-monthly, by mail, at the home of the Wife, one-half on the tenth and one-half on the twenty-fifth day of each month. 3. From and after the effective date of this Agreement, the Husband shall, as and for statutory alimony, pay to the Wife the sum of Three Hundred Seventh (sic) Five Dollars ($375.00) per month. The aforesaid payments shall be made semi-monthly at the home of the Wife, by mail, one-half on the tenth and one-half on the twenty-fifth day of each month. (Emphasis added.)
8. The Husband assumes, contracts and agrees to pay an attorney’s fee to the Wife in the aforesaid action in the sum of One Thousand ($1,000.00) Dollars (RMZ), an allowance for which shall be entered as a part of the Decree in said suit, and the Husband shall, in addition, pay the Court costs of said divorce action.

Paragraph One provides for permanent and temporary custody of the minor children, “Subject to the approval of the Court, . .” Paragraph Four provides for transfer of title to an automobile. Paragraphs Six and Nine deal with health and life insurance, respectively. Paragraph Seven provides for transfer of the parties’ residence to the wife. In Paragraph Ten, husband agrees to furnish a college education for the children. Paragraph Eleven states that the Agreement is not made to procure a divorce and Paragraph Twelve is a mutual release of claims. Paragraph Thirteen provides for husband’s transfer of his interest in a certain check payable to the parties. Paragraphs Fourteen through Sixteen pertain to income tax returns. Paragraph Seventeen provides that actions required pursuant to the Agreement be done as soon as practicable after a decree of divorce is entered. Paragraph Eighteen states that the Agreement is contingent upon a decree of divorce being entered in favor of respondent wife or said Agreement is void.

The parties were divorced on February 8, 1973. The wife was granted permanent custody of the five minor children. The husband was granted temporary custody “as per stipulation filed”. The wife was awarded $135.00 per month per child as child support, $375.00 per month “as and for alimony”, and $1,000.00 as attorney’s fees. The decree recited that “Stipulation filed, marked Defendant’s exhibit ‘1’.” On August 5, 1976, wife filed a “Motion for Contempt” alleging that her former husband failed to pay in excess of $14,935.00 in ali-: mony payments and the attorney’s fees awarded in the decree. An “Amended Motion for Contempt” was filed on October 28, 1976.

In October, 1976, wife collected $2,000.00 by garnishment. On November 10, 1976, she filed another “Amended Motion for Contempt” upon which the case was tried. She alleged that husband was delinquent in child support and alimony in the amount of $18,750.00. Testimony on this motion was heard on January 20 and 26, 1977. On February 2, 1977, the court found that husband failed to pay a total of $15,665.46 alimony and child support and that husband had the ability to make regular payments but intentionally refused to pay. The husband was held in civil contempt. Proceedings were stayed and husband was ordered to pay $7,500.00 to Mrs. Keltner by February 14,1977, and to appear that date, and to pay $8,165.46 before March 18, 1977. By Court Memorandum, on February 8, 1977, the court added findings to its previous order. The court found that the husband did not come into court with clean hands, that husband’s first attorney had advised him that he might be cited for contempt for failure to pay (child) support obligations, that the alimony owed by husband was statutory and not contractual, and that § 452.345(4), RSMo 1975 Supp. was not applicable. On March 3,1977, husband was sentenced to 90 days’ imprisonment.

On appeal, husband contends the court erred in citing him for civil contempt because the allowance of $375.00 per month awarded to wife was a contractual obligation rather than statutory alimony. He argues that because the Agreement was meant to be a settlement of all property rights, because the decree recites, “Stipulation filed, marked defendant’s Exhibit T ”, and because references to the Agreement appear in the decree, the allowance was contractual. Thus, contempt was not a proper remedy for failure to pay. We reject Husband’s argument.

In Nelson v. Nelson, 516 S.W.2d 574, 577 (Mo.App.1974), the court stated:

Concededly, as the cases universally hold, every contract providing for an award of ‘alimony’ referred to or incorporated in the divorce decree must be construed upon its own wording to ascertain the intention of the parties. (Emphasis added.)

Where the parties were represented by counsel in the preparation and execution of their Agreement, the court will give the words used by them their established legal meaning. Goodwin v. Goodwin, 277 S.W.2d 850, 852[2] (Mo.App.1955). The intention of the parties determines whether an allowance of maintenance noted in the Agreement settling property rights and other marital matters is contractual or statutory. Kerby v. Kerby, 544 S.W.2d 292, 294[1] (Mo.App.1976); Nelson v. Nelson, supra.

Though the Agreement of the parties was a comprehensive document which touched upon their property rights, this fact alone does not force the conclusion that the allowance of alimony was contractual in the present case. Paragraph Three of the parties’ Agreement provides that $375.00 be paid to wife “as and for statutory alimony.” “Statutory alimony” has an established legal meaning which is understood by lawyers and which is consistently used by the Missouri courts. “If the parties intended the stipulation to accomplish its ordinary purpose as merely an advisory to the court [cases cited], then the award was for statutory alimony . . (Emphasis added.) Nelson v. Nelson, supra. Statutory alimony is subject to modification while contractual alimony is not. Since both parties here were represented by counsel throughout these proceedings we find that the parties knew the established legal meaning of statutory alimony. And we find that, by the specific use of these words in their Agreement, the parties intended to authorize the court to make an award of alimony that would be subject to modification. The parties may settle all other property matters by contractual agreement and yet also agree that the court shall retain the power to modify an award of alimony.

Moreover, immediately prior to the divorce decree, the attorneys for the parties filled in a form utilized by the Circuit Court of St. Louis County and appearing in the record in this case, which listed various divorce-related matters. The form re-fleeted that both parties appeared in person with attorney and as to alimony stated: “Three Hundred Seventy Five Dollars per month.” This amount was ordered by the judge as indicated by his signature.

Correspondence from appellant’s lawyer to appellant within the first half of 1973 and just a few months after entry of the divorce reflected that the attorney advised appellant that the refusal to pay alimony would subject him to garnishment or a writ of sequestration, or some other form of attachment, such as on his bank account or savings account. All of these constitute enforcement methods for decretal alimony but not for a contractual arrangement.

The trial judge had all this evidence before him and found as a fact that the alimony provided for in the decree was statutory in nature and not contractual. The evidence clearly supports this finding. Appellant’s contention that the court erred in finding the alimony award to be decretal and not contractual is overruled.

Issue: Is State ex rel. Stanhope v. Pratt, supra, to be given retroactive effect so as to afford the basis for a circuit court to imprison a party upon a finding of contempt for failure to comply with an alimony decree which was entered prior to Stanhope ?

We conclude that it should not be given such retroactive effect. The alimony order which appellant failed to comply with was entered as part of the divorce decree on February 8, 1973, and had not been modified subsequent to this court’s decision in Stanhope.

From the time that Coughlin v. Ehlert, 39 Mo. 285 (1866), was decided until our decision in Stanhope on March 8, 1976, the law of Missouri was that the constitutional prohibition against imprisonment for debt prohibited the jailing of a person for contempt where the contempt was premised upon the failure to pay an alimony award. As stated in Partney v. Partney, 442 S.W.2d 117, 119 (Mo.App.1969):

Over one hundred years ago, in Coughlin v. Ehlert, 39 Mo. 285, 1. c. 287, the Supreme Court of Missouri had before it a defendant who had been adjudged in contempt of court and committed to jail by the Circuit Court which had awarded an alimony judgment against him and which he had not paid. Coughlin sought relief by writ of habeas corpus and the Supreme Court in discharging him from custody said: “An order for the payment of alimony is simply an order for the payment of money. Imprisonment for debt is abolished in this State. We think this was an imprisonment for debt only, and the commitment was without authority of law.”
This has remained the law in Missouri since that time. Art. I, Sec. 2, of the Constitution of Missouri bars imprisonment for debt except for the non-payment of fines and penalties imposed by law. The Supreme Court has held the award of alimony to be the same as any other judgment for money again, in Nelson v. Nelson, 282 Mo. 412, 221 S.W. 1066, 1. c. 1069[7]. Every court of appeals in the state has so held: Ex parte Kinsolving, 135 Mo.App. 631, 116 S.W. 1068, St. Louis Court of Appeals; Harrington v. Harrington, 233 Mo.App. 390, 121 S.W.2d 291, Kansas City Court of Appeals; Davis v. Broughton, 382 S.W.2d 219, Springfield Court of Appeals.

This was recognized in Stanhope, 533 S.W.2d at 571.

Generally, this Court has the authority to declare the effect of a decision overruling a former decision to be retroactive or prospective. Dietz v. Humphreys, 507 S.W.2d 389, 392 (Mo.1974); Koebel v. Tieman Coal & Material Co., 337 Mo. 561, 570, 85 S.W.2d 519, 524 (1935). In making this determination, the decision should be based on the merits of each individual case. Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Martin v. Wyrick, 568 F.2d 583 (8th Cir.), cert. denied, 435 U.S. 975, 98 S.Ct. 1623, 56 L.Ed.2d 69 (1978). Generally, it is considered “undesirable to give retroactive effect to overruling decisions, except under the most compelling circumstances.” United States ex rel. Angelet v. Fay, 333 F.2d 12, 21 (2d Cir. 1964), aff’d sub nom. Angelet v. Fay, 381 U.S. 654, 85 S.Ct. 1750, 14 L.Ed.2d 623 (1965). See Begay v. Graham, 18 Ariz.App. 336, 501 P.2d 964 (1972). The circumstances in this case compel the conclusion that prospectivity is the only justifiable holding.

As noted supra, the Keltners were divorced and the alimony award was entered February 8, 1973. On that date, Coughlin v. Ehlert, supra, was the controlling law in Missouri. That case stood for the proposition that an obligor under a divorce decree could not be held in contempt for failure to pay alimony. At the time the Keltner divorce decree was entered, jailing a delinquent spouse for failure to pay alimony was considered to be imprisonment for debt and, therefore, constitutionally prohibited. That state of the law was well known to the entire Missouri Bar, as evidenced by the cases so holding, as well as by the criticism voiced. See F. Schoenlaub, Use of Contempt Powers in the Enforcement of Alimony and Support Decrees, 23 J.Mo.B. 396 (1967). See also C. Smalley, “Enforcement of Decrees and Orders” in Family Law, The Missouri Bar § 13.12 (1970).

Attorneys relied on the rule in Coughlin in advising clients in divorce proceedings. For this reason alone, it would result in great hardship and injustice for this Court to now apply Stanhope retroactively and imprison appellant for failure to pay alimony. -In re Extension of Boundaries, 574 S.W.2d 357, 364-65 (Mo. banc 1978); Abernathy v. Sisters of St. Mary’s, 446 S.W.2d 599, 606 (Mo. banc 1969).

One of the most important factors considered by the courts “in deciding whether and to what extent a judicially changed rule of law should be given retroactive effect” is “the degree to which the prior rule may have been justifiably relied on.” An-not., 10 A.L.R.3d 1371, 1378 (1966). “It has often been held or recognized that where particular persons have acted in justifiable reliance on a subsequently overruled judicial decision and retroactive application of the overruling decision would defeat their reliance interests, such reliance interests should receive adequate protection, and the overruling decision should be denied retroactive application in order to prevent such .persons from being subject to unfairness or undue hardship.” Id. at 1386. This is especially true in cases like this involving a prison sentence “where a person has done something which had been treated in a pri- or judicial decision” as not punishable in this manner. Id. The “fact that the decision is subsequently overruled does not warrant the retroactive application of the overruling decision in such a manner as to defeat the person’s justifiable reliance interests by punishing him for doing what he had every reason to believe was” protected. Id. at 1386-87.

Prior to Stanhope, and at the time of this alimony order, lawyers and judges knew that an exhusband could not be imprisoned for failure to pay alimony in Missouri. There is no justification in law or equity to utilize an enforcement method (imprisonment) as to court orders made when imprisonment was not. available as a coercive measure at the time the order was entered. The resulting inequities are certainly predictable and readily apparent. Rudolph v. Wagner Electric Corp., 586 F.2d 90 (8th Cir. 1978), cert. denied, 441 U.S. 924, 99 S.Ct. 2033, 60 L.Ed.2d 397 (1979). “Private citizens . . . should not be left in doubt about what ‘the law’ requires, but rather should be able generally to take past declarations as authoritative assurances upon which prediction of future decisions, and arrangement of present affairs, can reasonably be based." T. Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 Va.L.Rev. 201, 236 (1965).

In reaching this conclusion, we do so with the knowledge that when imprisonment is the consequence of failing to obey a certain type order, that fact will influence the parties with respect to their agreement and a court with respect to the order itself. If a party to a divorce proceeding knows that jailing is not available as a coercive measure, he may agree to a larger court order for alimony. He may accommodate himself to larger alimony payments as long as he does not face prison but only civil relief if he should happen to fail to make a periodic alimony payment. Because property settlement provisions in divorce decrees are generally consensual in the making, although decretal in effect, one cannot avoid the proposition that if jail had been a known consequence for failure to comply with a consent order, the consent may not have been forthcoming and the order may have been different.

By this we do not mean that one must actually know of all the legal consequences which may attend a breach of agreement or disobedience to a court order in order to be subject to them. But here we are concerned with a peculiar situation wherein the known law was that a particular kind of coercive method — imprisonment—was not even a possibility at the time the parties agreed to the comprehensive property settlement which included decretal alimony in a certain sum. In these circumstances, it would be wholly unfair and inequitable to imprison a person for failure to make the payments ordered under the earlier alimony award.

For these reasons, the conviction of appellant for contempt and the sentence of ninety days in jail are reversed. In all other respects, the judgment of the circuit court is affirmed.

DONNELLY, RENDLEN, SEILER, WELLIVER and MORGAN, JJ., concur.

HIGGINS, J., not participating because not a member of the Court when cause was submitted.

      . The circuit court found that the procedures under § 452.345(4), RSMo 1978, were not applicable to this case. We agree.

      . All statutory references are to the 1975 Supplement, RSMo, unless otherwise noted.

      . Husband was ordered released on his own recognizance upon the posting of a bond to be used as security for the amount the court finds him in arrears.

      . Husband does not contest the right to punish by imprisonment for failure to pay child support, but claims that he is in arrears for maintenance only.

      . Husband contends that if the obligation to pay alimony is contractual, the wife must pursue her remedies for breach of contract rather than seek a contempt citation.

      . Section 452.325.4(1), RSMo 1978, the effect of which was considered in In re Marriage of Haggard, 585 S.W.2d 480 (Mo. banc 1979), was enacted after the divorce decree was entered in this case and is, therefore, not controlling here.

      .This court is cognizant of the cases which hold that an allowance of alimony is contractual when the agreement of the parties specifies that they intend thereby to settle all their property rights. See, e. g. LaFountain v. LaFountain, 523 S.W.2d 847 (Mo.App.1975); Nelson v. Nelson, supra; Goulding v. Goulding, 497 S.W.2d 842 (Mo.App.1973); Moran v. Moran, 286 S.W.2d 389 (Mo.App.1956); Jenkins v. Jenkins, 257 S.W.2d 250 (Mo.App.1953); Davis v. Davis, 196 S.W.2d 447 (Mo.App.1946); Bishop v. Bishop, 151 S.W.2d 553 (Mo.App.1941). These cases are distinguishable from the instant case due to its language in Paragraph Three.


author: DONNELLY, Judge. RENDLEN, Judge,

text:
    BARNES HOSPITAL, a corporation, Plaintiff-Respondent, v. Ronald LEGGETT, Collector of Revenue of the City of St. Louis and John O’Shaughnessy, Assessor of the City of St. Louis, Defendants-Appellants.
    No. 61003.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1979.
    Rehearing Denied Dec. 6, 1979.

      Jack L. Koehr, James J. Wilson, St. Louis, for defendants-appellants.
    John L. Davidson, Jr., Greenfield, Davidson, Mandelstamm & Voorhees, St. Louis, for plaintiff-respondent.
   DONNELLY, Judge.

This is an appeal by the Collector of Revenue and the Assessor of the City of St. Louis from a judgment entered by the Circuit Court of the City of St. Louis on August 24, 1978, in favor of respondent, Barnes Hospital, in which the court (1) ordered the Assessor to remove certain property owned by Barnes from the assessment rolls of the City, (2) prohibited the Assessor from placing the property on the tax rolls of the City and (3) prohibited the Collector from levying a tax or compelling payment. Since this case involves a revenue law, we have jurisdiction. Mo.'Const. art. V, § 3.

This proceeding involves Queeny Tower, in which full-time and part-time faculty members of Washington University Medical School carry on teaching, research and Barnes Hospital functions, and in which part-time faculty members carry on a private medical practice for individual profit in offices subleased from Barnes Hospital.

On April 28, 1978, Barnes Hospital, a not-for-profit corporation, and owner of Queeny Tower, filed its petition in the Circuit Court seeking to enjoin the Collector, Ronald A. Leggett, from levying a tax or enforcing the collection of same on Queeny Tower for the year 1978 and subsequent years. The petition also sought to enjoin the Assessor, John O’Shaughnessy, from placing Queeny Tower on the tax rolls and from certifying to the Collector any tax bill or list which includes Queeny Tower.

The Barnes Hospital complex consists of eighteen buildings, some of which are owned by Barnes and some by Washington University. Barnes is an important center for teaching medicine and allied fields. Within the complex, teaching programs are conducted by the Washington University Medical School including hospital administration, nursing programs, practical nursing, dietary internships, anesthesia, pharmacy internship programs and radiology technician programs. Barnes and Washington University have jointly developed a world famed reputation, drawing sick and injured from great distances. All patients in Barnes Hospital may be subjects for instruction of the students of the Washington University School of Medicine. The medical staff of the hospital consists solely of the faculty of the school of medicine. Under the hospital bylaws a physician’s appointment to the medical staff of the hospital ceases when he ceases to be a member of the faculty of the school of medicine. All the buildings of the Barnes complex are physically connected.

Queeny Tower is a seventeen-story building connected to a building to the east (Rand-Johnson) and has laboratories, patient care rooms, rooms for families, a non-commercial pharmacy, x-ray facilities, hospital offices, a meeting place for the Board, eating facilities, and space for the faculty of Washington University Medical School. Barnes leases 39,989 square feet of space in Queeny Tower to the medical school for which an annual rent is paid constituting less than 0.5% of the total cost of patient care. The medical school in turn subleases a portion to physicians on its part-time faculty to carry on a private practice “in addition to their responsibility to the University for research and teaching.”

The trial court made findings of fact, and conclusions of law. It found that the best patient care can be achieved by linking university teaching, research and patient care in the same center. The trial court also found that the location of full-time and part-time members of the faculty in Queeny Tower has improved patient care, research and teaching.

The trial court gave relief to Barnes and enjoined assessment. The Collector and Assessor duly and timely appealed from the judgment of the trial court.

Article X, § 6 of the Constitution of Missouri provides that “all property, real and personal, not held for private or corporate profit and used exclusively * * * for purposes purely charitable * * * may be exempted from taxation by general law.”

Section 137.100, RSMo 1978, provides that “All property, real and personal, actually and regularly used exclusively, * * * for purposes purely charitable and not held for private or corporate profit * * * ” is “exempt from taxation for state, county or local purposes.”

There can be no question, under the provisions of Article X, § 6, supra, and § 137.100, supra, that only property which is used exclusively for purposes purely charitable can be held exempt from taxation. The difficulty arises when one poses the question: must the word “property” mean a building or tract in its entirety or may it mean a portion of a building or tract? Historically, this Court has held that the word “property” means a building or tract in its entirety — that buildings or tracts are indivisible for tax purposes.

In Wyman v. City of St. Louis, 17 Mo. 335 (1852), this Court held that where a building is used in part for a schoolhouse, and in part for other purposes, it is not exempt from taxation; there cannot be a separate assessment for that portion which is used for other than school purposes.

In State ex rel. Spillers v. Johnston, 214 Mo. 656, 663, 113 S.W. 1083, 1085 (1908), this Court diluted the Wyman holding somewhat and said: “The phrase ‘exclusively used’ has reference to the primary and inherent use as over against a mere secondary and incidental use. * * * If the incidental use * * * does not interrupt the exclusive occupation of the building for school purposes, but dovetails into or rounds out those purposes, then there could fairly be said to be left an exclusive use in the school on which the law lays hold.”

However, in Evangelical Lutheran Synod v. Hoehn, 355 Mo. 257, 271-72, 196 S.W. 134, 145 (1946), this Court accurately stated the case law in Missouri to be generally that “where part of a unit tract is used for non-charitable purposes the whole is taxable since it is not used exclusively for chari£y ‡ ♦ ♦ ÍÍ

We have concluded that the holdings in Wyman, Spillers, Evangelical, supra, and their progeny, should be overruled and a new sense of direction established. See St. John’s Mercy Hospital v. Leachman, 552 S.W.2d 723, 728 (Mo. banc 1977) (Bardgett, J., dissenting).

In Annot., Exemption of part of building or part of its value from taxation, 159 A.L.R. 685, 687 (1945), it is stated that “[b]y the great weight of authority, a statute which in effect exempts from taxation property or buildings used for certain purposes authorizes a partial exemption of a building in case the building is used in part for exempt purposes and in part for nonexempt purposes.” Justification for adoption of this position was ably articulated by the Supreme Court of Minnesota in Christian Business Men’s Committee v. State, 228 Minn. 549, 38 N.W.2d 803, 811 (1949):

“In the light * * * of modern conditions involving the construction of large buildings, often consisting of many stories, there seems little justification for adhering to an assumed arbitrary rule of thumb that a building is necessarily taxable or nontaxable in its entirety. Big buildings have become the rule in the congested business areas of large cities where ground space is at a premium. The passage of time does not of itself amend the constitution, but it does amend the factual problems, human and physical, to which the constitution applies. If the purpose of tax exemption is to be achieved, we cannot ignore significant changes which have taken place in our physical surroundings. A tax-exempt institution obviously should not be denied the opportunity of acquiring an advantageous location in a congested downtown area simply because it may not be able to occupy for its restricted purpose an entire building consisting of several floors. Although it is a general rule that constitutional provisions exempting property from taxation are to be strictly construed, such provisions, though not subject to extension by construction or implication, are to be given a reasonable, natural, and practical interpretation in the light of modern conditions in order to effectuate the purpose for which the exemption is granted.”

See also Burgess v. Four States Memorial Hospital, 250 Ark. 485, 465 S.W.2d 693 (1971); Hanagan v. Rocky Ford Knights, 101 Colo. 545, 75 P.2d 780 (1938); Illinois Institute of Technology v. Skinner, 49 Ill.2d 59, 273 N.E.2d 371 (1971); YMCA v. Douglas County, 60 Neb. 642, 83 N.W. 924 (1900); Cleveland Library Ass’n v. Pelton, 36 Ohio St. 253 (1880); Board of Equalization v. Tulsa Pythian Benevolent Ass’n, 195 Okla. 458, 158 P.2d 904 (1945); Parker v. Quinn, 23 Utah 332, 64 P. 961 (1901).

We hold that Mo.Const. art. X, § 6 and § 137.100, RSMo 1978, which exempt from taxation property “used exclusively * * * for purposes purely charitable,” authorize a partial exemption of a building or tract, where that building, or tract, is used in part for charitable purposes and in part for non-charitable purposes.

Having abandoned the “all-or-nothing” rule of Wyman and the “dovetails into or rounds out” rule of Spillers, it remains for us to determine the point of departure from precedent. Feeling that justice will best be served by prospective application of the decision announced today, we hold that the new rule shall apply to this case and to all assessments which commence on the first day of January 1980, and thereafter. Section 137.080, RSMo 1978; Abernathy v. Sisters of St. Mary’s, 446 S.W.2d 599 (Mo. banc 1969).

In Franciscan Tertiary Province of Missouri, Inc. v. State Tax Commission, 566 S.W.2d 213 (Mo. banc 1978), this Court held that in order for hospital property to be held exempt from taxation under § 137.100 supra: (1) it must be actually and regularly used exclusively for purposes purely charitable as “charity” is defined in Salvation Army v. Hoehn, 354 Mo. 107, 114, 115, 188 S.W.2d 826, 830 (1945); (2) it must be owned and operated on a not-for-profit basis; and (3) the dominant use of the property must be for the benefit of an indefinite number of people and must directly or indirectly benefit society generally. See Note, Rental Housing for the Elderly as a Tax Exempt Charity and Retention of the No Partial Exemption Rule, 44 Mo.L.Rev. 154 (1979).

The judgment is reversed and the cause remanded for hearing, if necessary, with directions that a judgment be entered enjoining assessment of those portions of Queeny Tower which meet the Franciscan test.

BARDGETT, C. J., and SEILER, WEL-LIVER, MORGAN and HIGGINS, JJ., concur.

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

RENDLEN, Judge,

dissenting.

I respectfully dissent. This case turns on the Missouri Constitution art. X, § 6, which provides that,

[A] I1 property, real and personal, not held for private or corporate profit and used exclusively . . . for purposes purely charitable may be exempted from taxation by general law . . . (Emphasis added.)

and its implementing statute, § 137.100, subsection 5, RSMo 1978, which exempts

All property, real and personal, actually and regularly used exclusively . for purposes purely charitable and not held for private or corporate profit, . (Emphasis added.)

For many years this court has interpreted these clauses and their predecessors as requiring that the taxpayer bear the burden of showing his property is not liable to taxation, because exemption is the exception and it behooves one so claiming, to show it in clear terms. Spillers v. Johnston, 214 Mo. 656, 113 S.W. 1083, 1084 (1908). It was expressed this way in Wyman v. City of St Louis, 17 Mo. 335, 337 (Mo.1852):

[W]hen one claims an exemption from a burden to which all others are subject, and whose freedom will increase their load, he must clearly show himself in the situation which entitles him to the exemption claimed.

This principle has been reaffirmed as recently as 1976 in The City of St. Louis v. State Tax Commission, 524 S.W.2d 839, 844 (Mo. banc 1976), and again in St. John’s Mercy Hospital v. Leachman, 552 S.W.2d 723, 725 (Mo. banc 1977).

While the principal opinion does not disturb the burden of claiming an exemption from taxation, on other aspects of these constitutional and statutory sections it stands squarely against more than a century of legal precedent. The majority concede that this court historically “has held that the word ‘property’ [as used in these sections] means a building or tract in its entirety, . . . ” and further that when considering such tracts or buildings they have always been held to be “indivisible for tax purposes.” The readily apparent rationale for these consistent holdings that the exemption exists only when all of a building or tract is used for charitable purposes, is the unambiguous language of § 137.100, subsection 5, which, tracking that of the constitution, provides, “All property . actually and regularly used exclusively . . . for purposes purely charitable . . . .” (Emphasis added.) This and similar language of earlier constitutional and statutory sections have been so interpreted from 1852 in Wyman v. City of St. Louis, supra until today. Some of the cases in the unbroken chain are referenced in the majority opinion and are discussed in detail in St. John’s Mercy Hospital v. Leachman, supra.

The majority however overrules this unbroken line of authority by announcing a rule that the language of the constitution and the statute “authorizes a partial exemption of a building or tract where the building or tract is used in part for charitable purposes and in part for non-charitable purposes.” (Emphasis added.) In so doing they effectively engraft new language on the constitutional and statutory sections; hence art. X, § 6, would now read: “all [OR PART OF ANY] property, real or personal, not held for private . profit and [ANY PART OF WHICH IS] used exclusively for purposes purely charitable . . ” with similar engraftment on § 137.100(5).

Strong practical considerations demonstrate why such engraftment or construction seems ill-advised and why the framers of our constitution and the legislature when enacting the implementing statute avoided this concept. With the establishment of this new exemption, monumental if not insoluble problems of tax collection (to say nothing of the assessment headaches) loom ahead. For example, if property taxes become delinquent on a six story building, the two mid-floors of which are leased to physicians for their private practice and personal gain, and the remaining floors are devoted to charitable purposes, we must ask: Which part will be sold for nonpayment of the tax? Will the purchaser at a tax sale acquire a title to all or just the mid two floors of the building? How will he segregate or subsequently sell his interest in a portion of the building? How will he borrow money on the part purchased? Do we engraft a condominium or similar concept on what he buys in relation to the rest of the building and the use of the common areas? Who pays for repairs to the roof or the elevator? Does the court or the legislature draw and impose the terms of the “condominium” agreement? This not only requires that we reshape our notions of taxation but that we create legal interests for real estate and improvements thereon in which the fee may be rearranged or divided perpendicularly as well as horizontally. Such problems will not disappear or evaporate. Adoption of the attitude that “we will cross that bridge when we reach it” skirts round the fact that the legislature and the framers of the constitution apparently chose not to take this route at all. For these reasons, among others, I would reverse the judgment of the trial court and remand with directions that the property be returned to the assessment rolls of the City.


author: DONNELLY, Judge.

text:
    ST. LOUIS COUNTY, Missouri, a Body Corporate and Politic, Plaintiff-Appellant, v. CHRISTIAN HOSPITAL NORTHWEST ST. LOUIS COUNTY, a Missouri Not-for-Profit Corporation, and the State Tax Commission of Missouri, Defendants-Respondents.
    No. 60667.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1979.
    Rehearing Denied Dec. 6, 1979.
    Thomas W. Wehrle, George W. Lang, II, Clayton, for plaintiff-appellant.
    Bruce E. Woodruff, Armstrong, Teasdale, Kramer & Vaughan, St. Louis, for defendants-respondents.
   DONNELLY, Judge.

This is an appeal by St. Louis County from a judgment of the Circuit Court of St. Louis County entered on February 10, 1978, which affirmed a decision of the State Tax Commission declaring hospital property belonging to Christian Hospital Northwest St. Louis County exempt from taxation under Mo.Const. art. X, § 6 and § 137.100, RSMo 1978, and ordering the assessor of the County to remove the property from the assessment rolls for the year 1976.

Christian Hospital Northwest St. Louis County (Christian) is a general not-for-profit corporation with its principal place of operation in St. Louis County. Christian Hospital Northwest (the name was later changed to Christian Hospital Northeast-Northwest) is also a general not-for-profit corporation and is the lessee and operating arm of the hospital. Christian was organized in 1972 to issue bonds to finance construction of a hospital for the benefit of St. Louis County, to lease its property to a tax-exempt corporation, and to give St. Louis County (or if the County is unable or unwilling to accept such gift, another body corporate or politic or political subdivision) all right, title and interest to the hospital after all bonds are fully paid. Financing of the hospital’s construction was obtained by the issuance of $27,500,000 tax-exempt First Mortgage Bonds, series 1973. Rental payments by the lessee are sufficient to pay the principal and interest payments on the bonds.

The hospital owned by Christian and leased to Christian Hospital Northeast-Northwest opened in 1975. The main building contains approximately 363,249 square feet and has 400 acute-care beds and eighteen intensive-care beds, equipment, complete ancillary facilities, operating suites, emergency room facilities, a surgi-center for minor operations, administrative offices and physicians’ offices. The facility is operated as a private not-for-profit charitable hospital for the benefit of patients residing in the service area.

The hospital building is an eleven-story building designed with a nine-story tower housing the patients’ rooms and administrative offices. On the two floors of an outer structure surrounding the tower are eleven offices totalling 9,859 square feet leased to various physicians and to Northwest Radiologists, Inc. and Professional Opticians, Inc. These offices comprise 2.6% of the total floor space of the hospital facility. The corridors connect the hospital proper to the physicians’ offices, and in-patients frequently travel between the hospital and physicians’ offices. The expense of maintaining these offices exceeded revenue by $38,762 for the period January 1, 1976, through October 31, 1976.

There are some 325 physicians on the staff of the hospital and 115 employed physicians. The physicians who lease office space in the hospital must be in a practice which “lends itself to comprehensive care.” Specialists are sought for the hospital office space to supplement the general emergency room and employed physicians. Otherwise the hospital would be forced to hire these specialists if complete health care comparable to that in larger teaching hospitals, which have the benefit of residents, is to be achieved. Physicians in specialties which are already located in the offices have been refused as tenants. The physicians pay $7.50 per square foot per year for the offices they lease which is comparable to market rents in the area.

Physicians permitted to lease space in the hospital must also be members of the hospital staff. A physician must make application for staff privileges. When a physician is accepted to the staff, the physician must agree to serve on staff committees and to be on call on a rotation basis for emergencies in accordance with his speciality. The physicians leasing space perform work for hospital in-patients on behalf of their colleagues when the cannot be present, and are sometimes called in dire emergencies when it would take too long for the “on-call” physician to arrive, as opposed to three minutes for the officed physicians. This advantage becomes more marked when it is noted that respondent hospital has the busiest emergency room in the entire St. Louis area, treating 6,000 emergency patients each month.

The practice of including offices of private physicians in the hospital is a relatively new concept which has developed within the last ten years because it is considered “very important” to have physicians immediately available. Testimony at trial indicated that hospitals which have such offices are better “as far as the patient goes than the ones which don’t,” and “practically every hospital that has been built in recent time has incorporated physicians’ offices.” Seminars have been held by, for example, the American Hospital Association which advocate the utilization of medical office buildings in conjunction with hospital facilities. Statistics deduced at such seminars indicate that physicians with offices in a hospital complex admit approximately 80% more patients to that hospital than do physicians with offices elsewhere. Also, the length of stay of patients that are being treated by a hospital-based physician has been found to be 1.8 days less than those being treated by outside physicians.

In June 1976 the St. Louis County Assessor notified Christian that an assessment of $246,540 was being made solely for the physicians’ offices in the hospital. Two acres of the 24.58 acre tract, supposedly representing the doctors’ suites, were assessed at $13,360 and the improvements were assessed at $233,180.

An appeal was taken to the St. Louis County Board of Equalization and in a majority decision (one judge dissenting) on August 6, 1976, the Board denied the request for tax exemption. Thereafter, respondent petitioned the State Tax Commission for review of the assessment, contending that exemption should be allowed because, inter alia: (1) the doctors’ offices are an integral part of the hospital, (2) the use of a small portion of the facility for doctors’ offices is a mere secondary and incidental use and does not deter from the primary or inherent use of the facility for charitable purposes, but is in furtherance of the charitable purposes and promotes the efficient operation thereof, and (3) previous decisions of the Commission are dispositive of the issue.

The State Tax Commission held a hearing at which a stipulation was filed, several witnesses testified and several exhibits were introduced. The Commission stated the issue to be “whether the use of a certain portion of the hospital facility as medical office space vitiates the tax exempt status of the entire facility.” The Commission summarized the benefits of having offices within the hospital complex: to improve the quality of patient care, to provide consulting and follow-up services by specialists for emergency room treatment, to more economically use high-cost medical care equipment, and to reduce the number of full-time physicians, thereby cutting hospital costs.

The Commission concluded in its decision and order of September 26, 1977, that the evidence established that the use of the leased doctors’ offices does not interrupt the exclusive use of the real estate for charitable purposes, and that it furthers, expedites, dovetails into and rounds out the charitable purpose of the hospital. It was noted that no profit is derived from the office rents and that the leased offices occupy only a small percentage of the hospital floor space. The Commission found that the entire hospital property was exempt from taxation and ordered the assessor to remove the property from the assessment rolls for the tax year 1976.

St. Louis County filed its petition for review in the circuit court and on February 10, 1978, the court affirmed the decision of the State Tax Commission. The County appealed to this Court.

Article X, § 6 of the Constitution of Missouri provides that “all property, real and personal, not held for private or corporate profit and used exclusively * * * for purposes purely charitable * * * may be exempted from taxation by general law.”

Section 137.100, RSMo 1978, provides that “All property, real and personal, actually and regularly used exclusively * * * for purposes purely charitable and not held for private or corporate profit * * * ” is “exempt from taxation for state, county or local purposes.”

There can be no question, under the provisions of Article X, § 6, supra, and § 137.-100, supra, that only property which is used exclusively for purposes purely charitable can be held exempt from taxation. The difficulty arises when one poses the question: must the word “property” mean a building or tract in its entirety or may it mean a portion of a building or tract? Historically, this Court has held that the word “property” means a building or tract in its entirety — that buildings or tracts are indivisible for tax purposes.

In Wyman v. City of St. Louis, 17 Mo. 335 (1852), this Court held that where a building is used in part for a schoolhouse, and in part for other purposes, it is not exempt from taxation; there cannot be a separate assessment for that portion which is used for other than school purposes.

In State ex rel. Spillers v. Johnston, 214 Mo. 656, 663, 113 S.W. 1083, 1085 (1908), this Court diluted the Wyman holding somewhat and said: “The phrase ‘exclusively used’ has reference to the primary and inherent use as over against a mere secondary and incidental use. * * * If the incidental use * * * does not interrupt the exclusive occupation of the building for school purposes, but dovetails into or rounds out those purposes, then there could fairly be said to be left an exclusive use in the school on which the law lays hold.” (Emphasis supplied).

In Barnes Hospital v. Leggett, Collector, and John O’Shaughnessy, Assessor, 589 S.W.2d 241 (Mo. banc 1979), we concluded that the holdings in Wyman and Spillers, supra, and their progeny, should be overruled, and held that Mo.Const. art. X, § 6 and § 137.100, RSMo 1978, “authorize a partial exemption of a building or tract, where that building, or tract, is used in part for charitable purposes and in part for non-charitable purposes.” We also held that the new partial exemption rule shall apply only to Barnes “and to all assessments which commence on the first day of January 1980, and thereafter.” This means, of course, that the “dovetails into or rounds out” rule of Spillers shall apply in this case.

The State Tax Commission concluded that the use of the physicians’ offices in the hospital dovetails into and rounds out the charitable use of the hospital. In our view, this conclusion is “authorized by law” announced in Spillers, and is “supported by competent and substantial evidence upon the whole record.” Mo.Const. art. V, § 18.

The judgment is affirmed.

BARDGETT, C. J., and SEILER, WEL-LIVER, MORGAN and HIGGINS, JJ., concur.

RENDLEN, J., dissents.