author: KEITH, Justice.

text:
    J. WEINGARTEN, INC., Appellant, v. Betty Jean TRIPPLETT, Appellee.
    No. 7733.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 26, 1975.
    Rehearing Denied Dec. 18, 1975.

      Benckenstein & Norvell, Beaumont, for appellant.
    James W. Mehaffy, Jr., Beaumont, for appellee.
   KEITH, Justice.

Our opinions of October 16, 1975, are hereby withdrawn and the following is substituted in lieu thereof.

This is the second appeal in a slip and fall case, this court, in an unpublished opinion, having reversed the judgment of the trial court upon the first appeal. Upon the second trial the pleadings were identical and the evidence substantially the same except for the testimony of one expert witness offered by the plaintiff.

Each special issue necessary for plaintiff’s recovery was answered in her favor, and the judgment followed the verdict. Defendant assails the judgment with many points of error including no evidence, insufficient evidence, and great weight and preponderance of the evidence points.

Plaintiff testified that it had been raining hard with a blowing rain before she entered defendant’s store. She said that the doors to the store did not close completely, a condition which she had observed several weeks earlier. She fell upon the floor about five feet inside the doorway. After her fall she looked around to see what may have caused her fall and described the substance on the floor in this manner:

“It was a sort of film of dust like on the floor, sort of like as if you would paint or a light film and it wasn’t completely dry, solid, you know, and after I fell when I got up I noticed my dress had some dust on it. And I looked around and there had been quite a bit of walking in a large area.”

She described the area covered by the substance as being “eight or ten feet” all around her, and she estimated that there were fifty or so footprints in the substance.

In our earlier opinion, this court, following the well established substantive law governing such cases, held that the evidence was legally insufficient to show that defendant or its agents had placed the substance on the floor; that the defendant knew that the foreign substance was on the floor or negligently failed to remove it; or that the substance had been upon the floor for such a period of time that it would have been discovered had the defendant exercised ordinary care.

Upon this trial plaintiff offered Dr. Swiki A. Anderson as her expert witness seeking thereby to supply the missing element of time pointed out in our prior opinion. Dr. Anderson, a registered professional engineer and an assistant professor of Texas A. & M. University, testified that his specialty was fluid flow and heat transfer; or, as he put it: “[T]he evaporation of water is in my domain of interest.” He answered a lengthy, involved, and convoluted hypothetical question — interspersed with frequent objections — that in his opinion the water had been upon the floor for 28.8 minutes.

The jury found in answer to Special Issue No. 4 that the film of mud had been on the floor for such period of time that in the exercise of ordinary care the defendant should have discovered it and removed it; that such failure to remove the film of mud was negligence proximately causing the accident.

Defendant contends that plaintiff’s counsel included many assumptions of fact in the hypothetical question which were not supported by the facts in the record. We set out in parallel columns some of the assumptions made; and, in the other column, we set out information from the official Local Climatological Data form completed by the officials in charge of the weather bureau at Jefferson County Airport some five or ten miles from the store in question.

Dr. Anderson also assumed that the water thickness where plaintiff fell was one-eighth of an inch; that the film had a diameter of ten feet; that the air velocity in the store was 150 feet per minute; that the floor was completely level and flat. The radius of the area was compatible with plaintiff’s own testimony and the level floor assumption was a reasonable inference from all of the testimony in the record. Dr. Anderson explained that the one-eighth thickness of the water was caused by “surface tension effect ... [of water] which tends to pull the molecules together forming a cohesive force.” An explanation, in scientific language, was made as to the surface wind velocity in the store.

Defendant’s objections at the trial were clear and specific and were followed by a motion to strike the testimony. Upon appeal, defendant’s first six points of error complain of the admission of the conclusion tending to establish that the film had been on the floor for 28.8 minutes was based upon assumed facts not shown in the record.

Before turning to a consideration of defendant’s points of error challenging the conclusion reached by Dr. Anderson, it is well to restate some of the rules governing the receipt of opinion evidence from an expert. Thus we recognize the rule that considerable latitude is permitted in the propounding of hypothetical questions to expert witnesses, and the form and wording of the questions is left largely to the discretion of the trial court. Foreman v. Texas Employers’ Ins. Ass’n, 150 Tex. 468, 241 S.W.2d 977, 980 (1951). It is certainly true that “[hjypothetical questions should be restricted to the facts in evidence; otherwise, they will be misleading and confusing and therefore prejudicial.” Texas Employers’ Ins. Ass’n v. Fitzgerald, 296 S.W. 509, 511 (Tex.Comm’n App.1927, holding approved). These words were adopted, without benefit of quotation marks, in Gulf Oil Corporation v. Walker, 288 S.W.2d 173, 186 (Tex.Civ.App.—Beaumont 1956, no writ). See, generally, Sabelli v. Security Insurance Company of New Haven, 372 S.W.2d 348, 351 (Tex.Civ.App.—Austin 1963, writ ref’d n. r. e.); and Polasek v. Quinius, 438 S.W.2d 828, 835 (Tex.Civ.App.—Austin 1969, writ ref’d n. r. e.).

We must also recognize the rule stated in Aetna Casualty & Surety Company v. Scruggs, 413 S.W.2d 416, 422 (Tex.Civ.App.—Corpus Christi 1967, no writ), where the authorities supporting this statement are set out at length:

“It is not necessary that the hypothetical question embrace every fact in evidence; it is within the province of counsel to assume, within the limits of the evidence, any state of facts which he claims the evidence justifies and which enables the witness to formulate an intelligent answer and have the opinion of the expert upon the facts assumed.”

At the time the hypothetical question was propounded to the expert, the weather bureau report was not in evidence, and the trial court very properly overruled the objection with this comment, “provided counsel properly connects these matters up. If not, the Court will reconsider your objection.” There then followed an exchange between respective parties as to whether Dr. Anderson was referring to data taken at 5 p. m. or 6 p. m. Plaintiff’s counsel subsequently introduced the weather bureau chart and his examination of the witness, as can best be determined from the record, was based on the 6 p. m. data which has been set out earlier in the opinion. We are permitted to take judicial knowledge of a weather report for a particular day. Texas & P. Ry. Co. v. Greene, 291 S.W. 929 (Tex.Civ.App.—Fort Worth 1927), aff’d 299 S.W. 639 (Tex.Comm’n App.1927). The weather bureau records information every three hours; i. e., at 3, 6, 9 o’clock, etc. We thus note that there is no reference in the chart of any data allegedly taken at 5 p. m.

Upon cross-examination, defendant’s counsel elicited from Dr. Anderson the conclusion that if his figures on the climatological data were different, his conclusions as to the amount of time that the water had been on the floor would vary. He stated that the conditions immediately inside the door of the store would be the same, or at most minimally different, as the conditions outside. Plaintiff’s counsel then inquired as to how much difference he was talking about in using defendant’s calculations of any variance in conditions or if there were a few degrees difference in his figures.

“Q. How much difference are we talking about?
“A. Oh, plus or minus twenty per cent maybe, no more.
“Q. Twenty per cent would be plus or minus.
“A. Plus or minus six minutes.”

We are of the opinion that the trial court did not err in overruling defendant’s motion to strike Dr. Anderson’s testimony. An expert witness is not confined to opinions on facts within his own knowledge. 2 C. McCormick & R. Ray, Texas Law on Evidence, § 1402 at 237 (1956). In Shuffield v. Taylor, 125 Tex. 601, 83 S.W.2d 955, 960 (1935), it was said that “[a] question is not necessarily improper because it includes only a part of the facts in evidence, provided it embraces enough of them to enable the witness to formulate an intelligent opinion.” This proposition has more recently been stated in the following language:

“It is not necessary to the propriety of such a question that it include a reference to all of the relevant facts in evidence nor that it be confined to facts proven with mathematical certainty. It may include inferences reasonably drawn from other facts proved and consistent with the theory of the party propounding the question.” Burns v. Bridge Engineering Corporation, 465 S.W.2d 427, 432 (Tex.Civ.App.—Houston [14th Dist.] 1971, writ ref’d n. r. e.) (emphasis supplied)

Any discrepancies, if they may be labeled such, between the chart in evidence and the figures upon which Dr. Anderson based his conclusions were fully placed before the trier of fact and in the discretion of the lower court. His testimony reflects that even if defendant’s calculations were used and there was a difference of a few degrees in his data, the water had been standing on defendant’s floor for at least 22 minutes. We can not say that this was such a length of time that the jury could not have believed that it would have been reasonable for the defendant to have discovered the pool of water and have taken steps to correct it. The trial court did not abuse his discretion. See Foreman v. Texas Employers’ Ins. Ass’n, supra.

We overrule defendant’s first six points of error complaining of the admission of the opinion of Dr. Anderson that the substance had been upon the floor at least 28.8 minutes before plaintiff fell. When Dr. Anderson’s testimony is considered, as we must under the prevailing authorities cited, there is competent evidence to support the jury’s answer to Special Issue No. 4 that the film of mud had been upon the floor for such a period of time that in the exercise of ordinary care the defendant should have discovered and removed it. Consequently, we overrule defendant’s twelfth point of error contending that there was no evidence in the record supporting such findings. See J. Weingarten, Inc. v. Nallie, 516 S.W.2d 481 (Tex.Civ.App.—Beaumont 1974, writ ref’d n. r. e.).

The jury found, in answer to Special Issue No. 7, that the “defendant failed to provide mats for the entrance in question at the time and on the occasion in question,” which was negligence and a proximate cause of the accident. Defendant attacks Special Issue No. 7 with a point of error contending that such issue is “immaterial to any issue in this case,” followed by great weight and preponderance and insufficient evidence points. The subsidiary issues, Nos. 8 and 9, are challenged by no evidence, great weight and preponderance and insufficient evidence points.

In our review of the points challenging the sufficiency of the evidence, we will be governed by the rules laid down in Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

There is no doubt in our record that on the day in question rain had been falling in the area of defendant’s store, and plaintiff testified that it was accompanied by considerable wind. She also testified that the doors were maintained in such manner as to permit the wind driven rain to be blown into the store. In this respect she was corroborated by one or more of defendant’s employees. There is, however, a dispute between the parties as to the presence of mats at the entrance of the store.

We reproduce plaintiff’s testimony concerning the presence of mats at the entrance of the store:

“When I walked in — as soon as I got in the store I noticed a mat, you know — -as if the weather had been raining. There wasn’t no floor mat down by the door. So I walked, it must have been about five feet after I got in the store, and I noticed there was a film like maybe dust had been on the floor and sprinkled something on it, you know, like — ” (emphasis supplied)

Unfortunately, she does not enlighten us as to the location of the mat which she did see; but, neither counsel pursued the subject further. On the other hand, defendant’s employees were understandably vague in their testimony as to the presence of the mat on the occasion in question. Each employee denied any knowledge of the fall and had no independent recollection of the conditions prevailing on the day of the accident. In other words, while each testified that a mat was usually at the entrance of the store, none of them could testify that such a mat was present at the time of the accident.

Plaintiff, relying upon the recent case of Rosas v. Buddies Food Store, 518 S.W.2d 534 (Tex.1975), argues:

“Rosas . . . clearly demonstrates that a storekeeper has a duty to use mats or any other means to prevent an accumulation of mud and water during inclement weather if doing so will prevent the maintenance of an unreasonable danger. Here, the plaintiff testified to the presence of a large area, eight to ten feet in radius all around her, of dry (but not dried) mud. This film contained foot prints, as many as 50. The jury could have concluded, and obviously did, that had there been mats properly placed at the door, the door which as an integral part of the film of mud would never have been tracked into the store, so that the condition causing Plaintiff’s injury would never have been created.”

We disagree for several reasons. First: Justice Steakley, in Rosas was dealing with a summary judgment with the store owner laboring under the burden “of disproving as a matter of law one or more of the elements of negligence.” (518 S.W.2d at 537) We deal with a case which has been fully developed after a trial on the merits. A different rule applies in such a situation. It was plaintiff’s burden, upon the trial of the case, to prove each element necessary for her recovery. Glenn v. Prestegord, 456 S.W.2d 901, 903 (Tex.1970).

Second: There is no evidence in our record of other falls “attributable to the same condition,” a matter chosen for special mention in Rosas, and one of the material facts used to distinguish the case then under consideration from Camp v. J. H. Kirkpatrick Co., 250 S.W.2d 413 (Tex.Civ.App.—San Antonio 1952, writ ref’d n. r. e.), relied upon by the intermediate court in Rosas (518 S.W.2d at 537).

Third: The store manager in Rosas testified that “he was continually attempting to hold water accumulation in check, that mopping could only partially solve the problem.” Id. at 538. We have no similar testimony in the case at bar.

Finally, from Adam Dante Corporation v. Sharpe, 483 S.W.2d 452, 454-455 (Tex.1972), the Court quoted again the now familiar provisions of Restatement (Second) of Torts § 343 (1965).

There is no evidence that the defendant put the mud on the floor; and, the only evidence supporting a finding that it had been there for a sufficiently long period of time that the defendant should have known of its presence is the testimony of Anderson recounted earlier. Plaintiff sought a recovery upon a new and independent ground — a failure to have mats at the entrance of its store.

Insofar as we can determine, no court has ever allowed recovery in an owner-invitee “slip and fall” case on this theory of negligence on the part of the owner. Plaintiff’s theory of recovery in this case is that defendant’s failure to have mats at the door was negligence which proximately caused the dangerous condition resulting in plaintiff’s injury; and, because defendant’s negligence caused the dangerous condition plaintiff is relieved of the burden of proving defendant knew of the dangerous condition or that it had been there long enough so that in the exercise of ordinary care, it should have been discovered and removed. We decline to extend the liability of an owner to cover that situation.

Moreover, there is yet another reason why plaintiff may not prevail upon the finding of the absence of mats — causation in fact. We paraphrase the language of Justice Greenhill in Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560, 564 (1961): The definition of proximate cause embraces at least two distinct concepts, both of which must be present: (1) There must be cause in fact — a cause which produces an event and without which the event would not have occurred; and (2) foreseeability. Even assuming, without deciding, that there is some evidence of foreseeability as to the absence of the mats, we find no evidence that the absence of the mats in fact caused the accident. There is no evidence the presence of the mats would have prevented the formation of the film of mud in which the jury found plaintiff had fallen. There is no showing that the mats would have prevented rain from entering the store; and, more importantly, plaintiff did not fall in the area where the mats would have been located; she had passed far beyond such area when she says she encountered the mud. Rosas turned upon the issue of foreseeability (518 S.W.2d at 537)— not cause in fact. Here, as in Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752 (Tex.1970), there is no evidence to support the finding of proximate cause.

Defendant’s points 21-29, inclusive, are sustained.

We discuss defendant’s remaining point of error in an appendix hereto which we order not published since it presents no question or application of any rule of law of interest or importance to the jurisprudence of this State. Tex.R.Civ.P. 452.

While we have sustained defendant’s points 21 — 29, the judgment of the trial court will be affirmed. Points 21 — 29 deal with what is in effect an independent ground of recovery — the failure of defendant to keep mats at the entrance of the store. This issue is unrelated to the other points dealing with the defendant’s negligence in failing to discover within a reasonable amount of time the pool of water/mud on the floor, and removing the same. Where there is no evidence to support an issue or issues which were answered by the jury, the trial court’s judgment may still be affirmed if answers to other issues support the verdict. See Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407 (1943); Houston Lumber Supply Company v. Wockenfuss, 386 S.W.2d 330, 337 (Tex.Civ.App.—Houston 1965, writ ref’d n. r. e.); Tripp v. Watson, 235 S.W.2d 677, 681 (Tex.Civ.App.—Fort Worth 1950, writ ref’d n. r. e.).

Affirmed.


source: Caselaw Access Project

author: PALMORE, Justice.

license: Public Domain

text:
    CONSOLIDATED SALES COMPANY, Appellant, v. Robbie Kimbrough MALONE, Appellee.
    Court of Appeals of Kentucky.
    Nov. 26, 1975.

      William S. Bowman, Stiles & Miller, Louisville, for appellant.
    Wesley P. Adams, Jr., Ogden, Robertson & Marshall, Louisville, for appellee.
   PALMORE, Justice.

Consolidated Sales Company appeals from a judgment awarding the appellee, Robbie Kimbrough Malone, $1,000 in compensatory damages and $2500 in punitive damages for false imprisonment allegedly committed against her by its employes.

The instructions directed a verdict for the plaintiff on the issue of liability for compensatory damages and authorized punitive damages if the jury should find from the evidence that the “action and attitude” of Consolidated’s employes “indicated a wanton and wilful disregard of the right of others, including the plaintiff,” etc.

Consolidated contends that the case should have been submitted to the jury on the issue of probable cause and that the evidence was not sufficient to justify the instruction on punitive damages. It is our opinion that both contentions are well taken, for which reasons the judgment must be reversed.

The statute under which Consolidated seeks to avoid liability is KRS 433.236(1), which provides as follows:

“A peace officer, security agent of a mercantile establishment, merchant or merchant’s employe who has probable cause for believing that goods held for salé by the merchant have been unlawfully taken by a person, and that he can recover same by taking the person into custody, may, for the purpose of attempting to effect recovery, take the person into custody and detain him in a reasonable manner for a reasonable length of time.”

The incident giving rise to the suit occurred in a retail store operated by Consolidated in Louisville. The plaintiff, Miss Kimbrough (now Malone) had entered the store in the company of her prospective mother-in-law, Magnolia Malone, and the latter’s two daughters, one of whom was 13 and the other eight years old. Some time later, as they were preparing to leave, Glenda Routon, a security employe of the Company, summoned a uniformed guard and told Miss Kimbrough that she would have to go with them to the security office, which she did. In the security office Glenda conducted a search of Miss Kimbrough’s person but found no stolen merchandise, whereupon Miss Kimbrough was permitted to depart in peace.

In testing the procedural effect of the evidence produced in any case it is essential to begin with a determination of which party had the burden of proof on the issue or issues in question. The first issue here is whether Miss Routon had probable cause for taking custody of and detaining Miss Kimbrough. KRS 433.236(1) makes probable cause a justification in the case of suspected shoplifting. Justification of an act that would otherwise be culpable is in the nature of a confession-and-avoidance defense, which ordinarily must be pleaded and proved. Cf. 32 Am.Jur.2d 149, False Imprisonment, § 99. The burden of proof is on the plaintiff to show the imprisonment and on the defendant to show justification. Annotation, False Imprisonment — Shoplifters, 47 A.L.R.3d 998, 1004 (1973).

In Steinbergen v. Miller, 29 K.L.R. 1132, 96 S.W. 1101, 1103 (1906), this court said: “In order to maintain an action for false arrest and imprisonment, or malicious prosecution, the burden is upon plaintiff to show that the defendant acted both maliciously and without probable cause.” No doubt, however, in so saying the court had in mind actions sounding essentially in malicious prosecution, involving valid arrests, rather than false imprisonment as such, because at common law probable cause apparently was not a defense against trespass, which was the form of action for unlawful interference with the person. Cf. annotation, False arrest—Liability—Private person, 21 A.L.R.2d 643, 647 (1952).

KRS 433.236(1) creates a defense to false imprisonment that did not exist before its enactment. See Jefferson Dry Goods Co. v. Stoess, 304 Ky. 73, 199 S.W.2d 994, 997 (1947). The defendant has the burden of pleading and proving it. In this case the defendant did not plead the defense, but its evidence, which had no relevancy to any other purpose, was admitted without objection. The reception of such evidence was tantamount under CR 15.02 to an amendment of the answer to cover an issue “tried by express or implied consent of the parties.” Cf. Clay’s Kentucky Practice, CR 15.02; Moore’s Federal Practice (2d ed.), R 15(b), ¶ 15.13[2] (Vol. 3, pp. 991, 997); Patton v. Lake, Ky., 294 S.W.2d 917, 919 (1956); Carney v. Scott, Ky., 325 S.W.2d 343, 348 (1959).

The question, then, is whether this defensive evidence was such that it would not have been unreasonable for a jury to find in reliance upon it that the Company’s security employe had probable cause to believe that Miss Kimbrough had unlawfully taken some of its merchandise. It is summarized as follows:

Glenda Routon, stationed in a concealed position above the security office, first observed Miss Malone in the baby department and thought she was carrying some pastel-colored items of baby clothing on her arm, but her suspicions were not aroused until she noticed that Miss Kimbrough “went several times” to Mrs. Malone, who was in the shoe department with the two daughters, “and she did that several times . They would meet and separate, and meet together.” During the process, the articles Glenda says she had seen on Miss Kimb-rough’s arm gradually disappeared, so when Miss Kimbrough made her way toward the store exits Glenda make a quick inspection trip through the shoe department and other areas where Miss Kimbrough had been to see if she had laid the articles down. Not finding them, Glenda went to the area near the check-out counter and accosted Miss Kimbrough, who was waiting by the door while her companions went through a check-out lane.

We are of the opinion that on the basis of Glenda’s testimony it would not have been unreasonable for a jury to find that she had probable cause to believe that Miss Kimb-rough was engaged in stealing merchandise from the store. The question should have been submitted to the jury under a defensive instruction.

We proceed now to the issue of punitive damages, on which the plaintiff had the burden of proof.

“It is well established in numerous decisions that in order to justify an instruction on punitive damages there must be a wanton disregard of the rights of others. There must be willfulness, wantonness, and malice.” Jefferson Dry Goods Co. v. Stoess, 304 Ky. 73, 199 S.W.2d 994, 997-998 (1947).

“Exemplary or punitive damages are generally defined as those given in enhancement of compensatory damages on account of the wanton, malicious or reckless character of the acts complained of. They go beyond actual damages suffered and are allowed where the tort is aggravated by evil motive, actual malice or deliberate violence.” Great Atlantic & Pacific Tea Co. v. Smith, 281 Ky. 583, 136 S.W.2d 759, 768 (1940).

“There must be a showing that the acts were either willful or malicious or that they were performed in such a way as would indicate a gross neglect or disregard for the rights of the person wronged.” Ashland Dry Goods Co. v. Wages, 302 Ky. 577, 195 S.W.2d 312, 315 (1946).

As we understand these statements of principle, punitive damages must be premised on one or both of these two circumstances: (1) the defendant’s conduct was malicious, in that he acted in bad faith, and was not motivated by a belief that he had probable cause to detain the plaintiff, or (2) even though he may have acted in good faith, his treatment of the plaintiff was grossly in excess of what the circumstances, as the defendant actually believed them to be, reasonably required.

Accepting Miss Kimbrough’s testimony as true throughout, there was nothing in the evidence produced in this case to support a reasonable inference that Glenda Routon did not act in good faith or that Miss Kimbrough was treated in a manner not justified by the circumstances as Glenda believed them to be. Miss Kimbrough’s account was as follows:

Glenda walked up to Miss Kimbrough, motioned for the uniformed guard, and told him that Miss Kimbrough “was the one.” The guard told Miss Kimbrough that she would have to go with him. She remonstrated, but he told her she would have to go anyway. The guard led the way back to (but did not himself enter) a small closet-like office, followed by Miss Kimbrough and then Glenda. A man in plain clothes was sitting in the room. Glenda said, “I have to search you,” and Miss Kimbrough threw her pocketbook on the desk. The man in plain clothes searched it and then left the room, leaving only Glenda and Miss Kimbrough. The door remained open, but there was no evidence that anyone outside the room could or did see what was taking place inside. Glenda asked Miss Kimbrough to take off her coat, which she did, and then, after “patting her down” told her to take off her dress. Miss Kimbrough unzipped her dress and let it part-way down, following which, as described by Miss Kimbrough, “she patted me down again, and she stood there, and she said, ‘Have to search your bottom too,’ so I pulled the bottom of my dress up, and she patted me down again, and she kept staring at me, and I said ‘What do you want me to do, take my clothes off?’ and she said, ‘We have to do that too,’ and I pulled my girdle down, and she was helping me do that, and she just stood there and looked at me, and I asked her if she was through, and she says, ‘Yes.’ ” Miss Kimbrough estimated that this process consumed a period of 15 minutes, after which she was permitted to leave.

Assuming (and there was no evidence suggesting otherwise) that Glenda Routon suspected that Miss Kimbrough had concealed some articles of infant-apparel on her person, we see nothing in this account to support a finding that the manner in which Miss Kimbrough was treated and in which the search was conducted was unreasonable.

If in the event of another trial the evidence is substantially the same, the case should be submitted to the jury only on the questions of probable cause and compensatory damages.

The judgment is reversed with directions for a new trial.

CLAYTON, JONES, LUKOWSKY and STEPHENSON, JJ., concurring.

REED, C. J., concurring except on the issue of punitive damages.


author: HOLMAN, Judge. SEILER, Chief Justice

text:
    STATE of Missouri, Respondent, v. Steve KRAUS, Appellant.
    No. 59135.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1975.
    Victor Tell Neff, Barry & Neff, Jefferson City, for appellant.
    John C. Danforth, Atty. Gen., William Arnet, Asst. Atty. Gen., for respondent.
   HOLMAN, Judge.

The defendant-appellant moved, under the terms and provisions of Section 195.290, to expunge records of his arrest, trial and conviction for the offense of selling marijuana. The trial court denied the motion and entered judgment accordingly. The defendant appealed to the Court of Appeals, Kansas City District, which court reversed the judgment and remanded the cause for further proceedings in accordance with its opinion. Upon respondent’s application we ordered the case transferred and it will be determined here the same as on original appeal. Art. V, Sec. 10, Mo.Const. We affirm.

On April 3, 1972, appellant was convicted of selling marijuana. Appellant was 20 years of age at the time of his conviction. On June 28, 1972, the appellant was placed on judicial probation for a period of three years. On January 16, 1973, approximately six and a half months after he was placed on probation, appellant filed his motion to expunge all official records and recorda-tions of his arrest, trial and conviction. At that time, appellant was 21 years of age. On May 21, 1973, almost eleven months after the probation order, a hearing on this motion was had before the same court that sentenced appellant. Appellant and his probation officer testified that appellant had complied with the conditions of his probation, had committed no additional offense, had been steadily employed, and lived at home with his parents. The State offered no evidence and does not dispute the facts heretofore stated.

The trial court, at the conclusion of the hearing, made the following ruling: “Well, this man was placed on probation on June 28th, 1972 for a period of 3 years. He is still on probation. The term of probation has not been terminated. Under the statute, he can’t expunge this from the record until the term of probation has been served. The motion to expunge is denied.”

The issue involved on this appeal is the interpretation to be given to the language of Section 195.290. That section reads as follows: “After a period of not less than six months from the time that an offender was placed on probation by a court, such person, who at the time of the offense was twenty-one years of age or younger, may apply to the court which sentenced him for an order to expunge from all official records, . and all recordations of his arrest, trial and conviction. If the court determines, after a hearing and after reference to the controlled dangerous substances registry, that such person during the period of such probation and during the period of time prior to his application to the court under this section has not been guilty of any offenses, or repeated violation of the conditions of such probation, he shall enter such order. The effect of such order shall be to restore such person, in the contemplation of the law, to the status he occupied prior to such arrest and conviction. No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his failures to recite or acknowledge such arrest or trial or conviction in response to any inquiry made of him for any purpose.”

The appellant asserts that he presented undisputed evidence that he qualified to have the records of his conviction expunged and that he was not required to wait to request such order until the end of his probationary period. The State asserts that while provisions of Section 195.290 permit the filing of a motion to expunge after six months from the date of probation, the order to expunge cannot be entered until the expiration of the full probationary period and that the trial court was free from error in so holding.

The primary rule of statutory construction is to ascertain the intent of the lawmakers from the language used, to give effect to that intent if possible, and to consider words used in the statute in their plain and ordinary meaning. State ex rel. Drave Corporation v. Spradling, 515 S.W.2d 512 (Mo.1974); Missouri Pacific R.R. Co. v. Kuehle, 482 S.W.2d 505 (Mo.1972); State v. Brady, 472 S.W.2d 356 (Mo.1971); State ex rel. Cooper v. Cloyd, 461 S.W.2d 833 (Mo. banc 1971).

The purpose and object of the statute must always be considered. Edwards v. St. Louis County, 429 S.W.2d 718 (Mo. banc 1968). The basic intent of the legislature when it enacted Section 195.290 was to provide a procedure whereby a youthful offender under Chapter 195, who had been convicted and placed on judicial probation and who was shown to have been free from further transgression could move to have the record expunged and be relieved from the life-long burden of a criminal conviction with all of its detrimental results.

Section 195.290 was enacted in 1971 as a part of S.C.S.H.C.S.H.B. 69. By that Act the General Assembly adopted the “Uniform Controlled Substances Act” consisting of 36 sections. A review of the Act will demonstrate that it substantially covers the drug field. It lists many controlled substances, provides the method for the legal sale of certain drugs, defines drug offenses, provides the penalties for violation thereof and contains other sections relating generally to controlled substances.

When the first two sentences of Section 195.290 are considered together there appears to be some ambiguity as to the precise time it becomes the duty of the court to enter the order of expunction. Considered alone, however, the second sentence is clearly in accord with the ruling of the trial court. It provides that if the court finds that the applicant “has not been guilty of any offenses or repeated violation of the conditions of such probation — during the period of such probation and during the period of time prior to his application to the court” it shall enter such order. That sentence, which as we have indicated, is clear and precise, constitutes the essence of the section.

In considering the meaning of the first sentence it may be well to bear in mind that legislative enactments are not always faultlessly prepared and hence courts are sometimes called upon to determine the legislative intent. This is demonstrated by the fact that this section refers to the “controlled dangerous substances registry” and that an expert from the state division of health testified that no such registry existed in this state and he was not sure that there was a federal registry.

As indicated, appellant contends that he was entitled to file his application after he had been on probation for at least six months and that the court was required to enter the order of expunction upon proof of proper conduct during the time he was on probation prior to the filing of his application regardless of the length of the original period of probation; that the order would automatically terminate the period of probation.

We do not construe the first sentence of the section in accordance with appellant’s contention. To do so would indicate that the lawmakers intended to repeal portions of our judicial probation laws by implication. Section 549.071 provides that “In the case of a felony offense no probation under this chapter shall be granted for a term of less than one year, and no probation shall be granted for a term of longer than five years. In the case of a misdemeanor offense no probation shall be granted for a term of longer than two years. The court may extend the term of the probation, but no more than one extension of any probation may be ordered.” If appellant’s contention is correct the court would lose control (in drug cases) of the period of probation given it by Section 549.071. A court could be required to terminate probation (by expunction) in slightly more than six months even though it may have been the opinion and desire of the court that such continue for as much as five years. We cannot reasonably attribute that intention to the lawmakers. And this conclusion is fortified by the well established rule that “ ‘ “Repeals by implication are not favored — in order for a later statute to operate as a repeal by implication of an earlier one, there must be such manifest and total repugnance that the two cannot stand; where two acts are seemingly repugnant, they must, if possible be so construed that the latter may not operate as a repeal of the earlier one by implication; if they are not irreconcilably inconsistent, both must stand.” ’ ” State ex rel. Preisler v. Toberman, 364 Mo. 904, 269 S.W.2d 753, 754 (1954).

It is well settled that statutes relating to the same or similar subject matter, even though enacted at different times and found in different chapters, are in pari materia and must be considered together when such statutes shed light on the statute being construed. City of St. Louis v. Carpenter, 341 S.W.2d 786, 788 (Mo.1961).

We have arrived at a construction of the six months requirement of the first sentence which we consider to be in harmony with the second sentence of the section as well as with the general probation laws.

Chapter 195 encompasses both misdemeanor and felony offenses. It accordingly follows that youthful offenders convicted of either a felony or misdemeanor may apply under the provisions of Section 195.290. The minimum period of probation required in felony cases is one year and there is no minimum period for probation for misdemeanor offenses. It is also true that under the provisions of Section 549.111(1) the court is given the discretionary power to order a discharge from probation at any time. Since one convicted of a misdemean- or may be placed on probation for a period of less than six months and since the court has the discretionary power to discharge from probation at any time, the six month period specified in Section 195.290 was intended by the legislature to provide a minimum period in which the conduct of a person convicted under Chapter 195 could be examined by the court in order to determine whether the applicant has met the requirements of the statute.

Moreover, if the legislature had intended that Section 195.290 should operate as a restriction on the powers granted to the court in Section 549.071 we think it would have specifically so provided as it did in Section 195.221 of this same Act in regard to Section 549.275 relating to the powers of the Board of Probation and Parole.

As indicated by the foregoing we reject the suggestion of the State that it was intended by the first sentence of the section in question that an applicant is given the right to file his application after six months even though it could not be considered by the court until the period of probation had terminated. We see no reasonable basis for such a construction.

We rule that under the provisions of Section 195.290 an applicant may not file his application to expunge until after his probationary period has terminated and that the court at the hearing should consider his conduct during the entire period of probation as well as during any subsequent period of time “prior to his application to the court.”

For the reasons stated the judgment is affirmed.

MORGAN, BARDGETT, HENLEY, FINCH and DONNELLY, JJ., concur.

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

SEILER, Chief Justice

(dissenting).

Respectfully, I am unable to agree that when the legislature in the first sentence of Sec. 195.290 provided that “[ajfter a period of not less than six months from the time that an offender was placed on probation by a court”, he could, if 21 years of age or younger at the time of offense, apply for an order of expungement, it meant to say that “after his probationary period has expired” he could make application. The principal opinion, instead of treating the six months period as the minimum period the defendant must wait after being placed on probation before applying for expungement, holds that the six months period is the minimum length of time a defendant must be under observation before a court can make a determination whether defendant has met the requirements of the statute and that it has nothing to do with when the applicant can first make application, which (it says) must await completion of probation.

Had the legislature so intended I believe it would have said so, by using language such as the West Virginia legislature used which reads: “After a period of not less than six months which shall begin to run immediately upon the expiration of a term of probation imposed upon any person under this chapter, such person may apply to the court for an order to expunge from all official records all recordations of his arrest, trial, and conviction, pursuant to this section.” W.Va.Code, Sec. 60A-4-407,1975 Cum.Supp.

Further, the likelihood that there would ever be any significant number of instances where a drug offender would be placed on a term of probation of less than six months is so minimal that it is difficult to conceive the legislature had in mind insuring against the possibility of an offender not being under observation for at least six months when it enacted the first sentence of Sec. 195.290. I say this because if there is a felony conviction under Chap. 195, then the minimum probation would have to be at least a year and if there is a misdemeanor conviction it seems most unlikely that if the court is going to put the offender on probation it would be for less than six months. As a practical matter, it would be difficult for the Board of Probation and Parole to provide adequate investigation and supervision for the court or any helpful supervision for the offender if the term of probation were set at no more than a few weeks or two or three months. In practice, I doubt if there are enough probation terms of less than six months in drug offense cases for that to have been a serious factor in the legislature’s consideration of Sec. 195.290. Rather, I believe the legislature had in mind what the first sentence of Sec. 195.290 plainly sets forth — the minimum length of time after a youthful offender is placed on probation following which he can first apply to have his record expunged.

I would add that while the fact Sec. 195.290 refers to a nonexistent “controlled dangerous substances registry” supports the conclusion made by the principal opinion that the statute was not faultlessly prepared, this fault creates no ambiguity and is immaterial in the determination of what the legislature intended by Sec. 195.290. The section relates primarily to expungement of the record of conviction and termination of probation. It is reasonable to assume the legislature intended by its enactment to make some change in the existing law in both areas, In re Tompkins Estate, 341 S.W.2d 866 (Mo.1961), but as I read the principal opinion it interprets Sec. 195.290 so that no change is made in the existing law as to termination of probation.

I agree that the effect of defendant’s contention is that once six months has passed from the time the offender has been placed on probation, if application for ex-pungement is made and if the offender satisfies the court he has not been guilty of any offenses or repeated violation of the conditions of his probation, then the court shall enter the order of expungement, which, under the statute, restores the offender to the status he occupied prior to conviction, thereby terminating probation even though the offender may have originally been placed on probation for a longer term. However, as pointed out in the opinion of the court of appeals, Kansas City district, which reversed and remanded the judgment of the trial court, “. . . the legislature was aware when it enacted Section 195.290, supra, that the shortest initial period for judicial probation was for one year. Yet it saw fit in the light of this restriction to provide that a motion to expunge the record could be filed by the class of youthful offenders, ‘after a period of not less than six months’ from the date of the probation. This provision is definite and unambiguous and the meaning of the simple words used is clear and does not warrant any complicated judicial interpretation.”

This court, the court of appeals, and the parties are in agreement that the purpose of the statute under consideration is remedial — to provide a procedure whereby a youthful offender could have the record wiped clean and not have his rehabilitation hindered by a criminal record. The legislature put such a high value on this that it provided it would not constitute perjury or a false statement if the offender thereafter failed to disclose or acknowledge his prior conviction.

It is a general rule of law that statutes which are remedial in nature are entitled to a liberal construction in favor of the remedy provided by law, or in favor of those entitled to the benefits of the statute. 78 Am.Jur.2d, Statutes, Sec. 279, p. 443. “The statute is remedial ... It should be construed so as ‘to meet the cases which are clearly within the spirit or reason of the law, or within the evil which it was designed to remedy, provided such an interpretation is not inconsistent with the language used . . . resolving all reasonable doubts in favor of the applicability of the statute to the particular case’ . .” State ex rel. Brown v. Board of Education, 294 Mo. 106, 242 S.W. 85, 87 (banc 1922). We are dealing with a narrow class of offenders, those under 21 at the time of the offense and subsequently placed on probation. I do not believe it is consistent with the remedial purpose behind Sec. 195.290 to interpret it so that a youthful offender with a good post-conviction record may have to wait anywhere from one to five years before he can obtain the relief of having his conviction expunged. By that time his chance of rehabilitation, higher education, useful employment, normal living and the opportunity to be a part of society free from the stigma of conviction may have passed. If the remedy is going to do him any good as a youthful offender, it must come soon. I think that is what the legislature had in mind and that the court of appeals was correct in holding that the application could be made and acted upon any time after the first six months of the probationary period has passed. The court must apply the law as written and leave to the legislature the matter of determining questions of legislative policy. State v. Patton, 308 S.W.2d 641, 644 (Mo. banc 1958).

The principal opinion makes reference to the general rule that repeals by implication are not favored, that such will be declared only when there is a manifest and total repugnance that the two statutes cannot stand. However, this is not a case of repeal by implication. It is rather a case where a general statute exists and the legislature subsequently enacts legislation directed to a limited or specific remedial purpose within the general proposition. It is to engraft an exception upon the law in this limited situation.

But even if the doctrine of repeal by implication is arguably involved in this case, I see no irreconcilable inconsistency between Sec. 195.290 as viewed by defendant and Sec. 549.071 which governs length of probation generally. As was said in State v. Taylor, 323 Mo. 15, 18 S.W.2d 474, 477 (1929): . . Conflict is not engendered by the mere fact that there may be cases where the provisions of both statutes cannot be applied effectively . . . ” In that case it was claimed there was a repeal by implication of the Habitual Criminal Act by a later statute which provided that for felonies committed or attempted to be committed while armed with a deadly weapon the punishment assessed by the jury should be increased by two years’ additional imprisonment, something which could not be done in many cases where the defendant had already received life imprisonment as required under the Habitual Criminal Act (as it then existed). The court pointed out that neither statute affected the nature of the crime being tried, although both affected the extent of the punishment, and the court did not consider there was any conflict “although it is perfectly apparent that both cannot be effectively applied to the punishment in all cases at the same time”, supra, at 476.

Similarly in the case before us, neither Sec. 195.290 nor Sec. 549.071 affects the nature of the crime of which the accused on trial may be found to be guilty, but both affect the length of time for which probation may be imposed. All that has happened by the enactment of Sec. 195.290 in 1971, subsequent to the enactment of Sec. 549.071, is that a youthful offender guilty of a drug violation has a means of terminating his probation earlier and with a different and remedial result than is true of someone convicted of some other felony. So viewed, there is no inconsistency or conflict between the two statutes such as to require the construction which the majority opinion gives the first sentence of Sec. 195.-290.

The principal opinion also refers to the fact that in Sec. 195.221, which sets parole for drug purveyors at completion of sentence plus five years, specific reference is made that Sec. 549.275, a general statute which limits all paroles to the maximum term of sentence, shall not apply, which the principal opinion finds significant, reasoning that lack of a similar reference in Sec. 195.290 to Sec. 549.071 means that even as to a youthful offender the terms of the earlier statute must control.

However, Sec. 195.221 adds to the punitive features of the act, whereas Sec. 195.-290 has the opposite effect. One is to enhance the penalties of violation of parole by a drug purveyor; the other is to assist a first offender by removing his conviction record and the same necessity for making reference to another statute to accomplish the desired and does not exist. In the absence of any action under See. 195.290, Sec. 549.071 continues to operate. But the legislature did not want Sec. 549.275 to continue to operate at all as to drug purveyors who violate their parole. Hence, it was necessary in Sec. 195.221 to provide specifically that Sec. 549.275 does not apply.

The principal opinion holds that the second sentence of Sec. 195.290 constitutes the essence of the section and that under it the record cannot be expunged until the term of probation has been served. But as stated in the opinion of the court of appeals, Kansas City district: “This sentence relates to the findings of the court upon hearing of the motion to expunge and the factors or elements for its consideration as to the conduct of the applicant ‘during the period of such probation’. Whether the probationary period under judicial scrutiny lasted for a period of six months and one day to three years would not change the duty imposed upon the court. No qualifying words were employed by the legislature to express any limitation as to time in this part of the statute, and certainly nothing is therein expressed or even implied that the judicial functions imposed cannot or should not be exercised until the full course of the initial probation had run . . The court below did not deny the order to expunge upon the basis that appellant was not shown to have met these conditions during the almost eleven months of his probation but made its ruling solely upon the basis that the order to expunge could not be made until the expiration of the full period of probation. It can therefore be assumed that the court properly ‘determined’ that appellant had, in fact, proved compliance with the conditions required for the order to expunge, in which event Section 195.290, supra, provided that ‘he shall enter the order’. In this context, the word ‘shall’ is mandatory, State v. Paul, 437 S.W.2d 98, 101—102[5] (Mo.App.1969), and the order to expunge should have been entered.”

I would remand this case as having been improvidently transferred and would let stand the opinion of the court of appeals, Kansas City district, reversing and remanding the trial court.

      . All statutory references are to V.A.M.S.


author: BARDGETT, Judge.

text:
    STATE of Missouri, Respondent, v. Edward JOHNSON, Appellant.
    No. 57471.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1975.

      William P. Russell, Samuel I. Kohn, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., for respondent.
   BARDGETT, Judge.

A jury found defendant Edward Johnson guilty of murder in the first degree and assessed the death penalty. Judgment was entered in accordance with the verdict and, after an unavailing motion for new trial, Johnson appealed.

This case was tried and the appeal taken prior to January 1, 1972, and, after numerous continuances awaiting the transcript and briefs to be filed here, the cause was argued in the May 1975 session. Because the appeal was filed prior to January 1, 1972, from this felony conviction, this court has jurisdiction. Art. Y, sec. 3, Mo.Const., as amended.

On the night of October 31, 1969, Mrs. Hermine Rohs, her son Willy, and Willy’s wife Marilyn, were fatally stabbed by intruders in Mrs. Rohs’ apartment in St. Louis. Various items of personal property were stolen from the victims and the women were raped. Mrs. Hermine Rohs and Willy Rohs were dead on arrival of the police. Marilyn Rohs died November 10, 1969, from her wounds. Defendant has previously been convicted of the murder of Marilyn Rohs, which conviction was affirmed on appeal. State v. Johnson, 488 S.W.2d 645 (Mo.1973). In the companion case of State v. Smith, 491 S.W.2d 257 (Mo.1973), Willie Smith’s conviction for the murders of Marilyn and Willy Rohs was affirmed. The instant conviction is for the murder of Willy Rohs.

Defendant’s points I, II, and IV, will be considered together. They are (I) “The court erred in overruling Motion to Suppress physical evidence” and (II) “The court erred in overruling Motion to Suppress any and all alleged oral statements or confessions”. The items of physical evidence referred to, although not set forth specifically in the brief, are state’s exhibits 16, 17, and 26 — a watch and ring seized from Willie Smith at the time of Smith’s arrest and a driver’s license receipt found in Smith’s wallet, and state’s exhibits 24 and 25 — defendant’s wallet which was seized at his home sometime after defendant was arrested and a driver’s license of one Willie J. Smith found in defendant’s wallet.

The oral statements or confessions referred to in point II are statements he allegedly made at a hospital after viewing Marilyn Rohs; statements made by defendant in a police car while being returned to the police station; and subsequent statements made at the police station. Point IV alleges the court failed to hold a voluntariness hearing in connection with the oral statements or confessions.

Defendant’s basic contention is that his warrantless arrest was illegal as being without probable cause; that the exhibits mentioned supra were seized as a direct result of the illegal arrest in that the seizure of the said exhibits was in consequence of and a direct result of information allegedly obtained from defendant in the statements about which he complains (and denies having made) and, therefore, were inadmissible as having been obtained in violation of his constitutional rights against unreasonable search and seizure under the Fourth and Fourteenth Amendments to the U.S. Constitution, and Art. I, sec. 15, Mo. Const.

State v. Johnson, supra, was an appeal from this defendant’s conviction of the murder of Marilyn Rohs. This appeal is from his conviction of the murder of Willy Rohs. The arrest, physical evidence, and oral statements, which were the subject of the prior case of State v. Johnson, are the same arrest, physical evidence, and statements involved in this appeal.

In State v. Johnson, supra, the court said, 488 S.W.2d at 647: “The trial court found there was no probable cause for the arrest, but that the incriminating statements were voluntary and that the testimony was sufficient to establish the warnings had been given, especially when there was no testimony from defendant that the warnings had not been given or that any pressure was applied to him; that as to the police entering the house and obtaining the wallet, the evidence showed defendant had consented. The court overruled the motions to suppress.”

And at 649 the court said: “Defendant takes the position that because of the illegal arrest and lack of counsel at the hospital confrontation, it follows automatically that the incriminating statements and the ring and the watch found at Willie James’ [Smith’s] house are inadmissible as being ‘fruit of the poisonous tree’, citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, as his leading case. This court has refused to adopt defendant’s position, reasoning the fact may be in some cases that, despite the illegal arrest, the statements actually are made voluntarily without coercion. See State v. Fair (Mo.Sup. banc), 467 S.W.2d 938 and State v. Newell (Mo.Sup.), 462 S.W.2d 794.”

Subsequent to this court’s decision in State v. Johnson, supra, the Supreme Court of the United States decided Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The arrest of Brown was without warrant or probable cause and, therefore, illegal. The court held 422 U. S. at 601, 95 S.Ct. at 2261, 45 L.Ed.2d at 427, “. . . the Miranda warnings, alone and per se, cannot always make the act [confession] sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between the illegality [illegal arrest] and the confession. They [Miranda warnings] cannot assure in very case that the Fourth Amendment violation has not been unduly exploited. See Westover v. United States, 384 U.S. 436, 496-497, 86 S.Ct. 1602, 1639, 16 L.Ed.2d 694.”

The court rejected the per se rule, a proposal under which the Miranda warnings would in and of themselves cure all taint of an unlawful arrest, but also rejected a so-called “but for” rule under which the taint of an illegal arrest would remain so as to render inadmissible a confession following an illegal arrest even though the arrested person did, in fact, confess as an act of his free will unaffected by the initial illegality, the illegal arrest. The court said the question of whether a confession is the product of a free will under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), must be answered on the facts of each case.

The criteria enunciated in Brown v. Illinois, supra, with respect to confessions following an illegal arrest was the law of this state prior to Brown and was articulated and applied in the earlier Johnson case and in State v. Fair, 467 S.W.2d 938, 943 (Mo. banc 1971).

The trial court here held an evidentiary hearing on defendant’s motions to suppress after the jury was selected in this case. At the conclusion of the hearings the court overruled the motions and found the statements attributed to defendant to have been freely and voluntarily given after having been fully advised of his rights and without coercion or promises.

As noted supra, this court accepted the trial court’s finding in the earlier Johnson case that the warrantless arrest of Johnson was illegal as without probable cause. The evidence given at the preliminary hearing in the instant case does not warrant a different conclusion.

The physical evidence and statements of defendant were held admissible in the earlier Johnson case on the basis that, although the arrest was illegal, “the incriminating statements and what was developed against defendant from them were not the product or exploitation of the illegal arrest but were rather from defendant’s own decision to speak out, and the trial court did not err in admitting the incriminating statements and the ring and watch found in the possession of defendant’s companion.” 488 S.W.2d at 649.

At the hearing on the motions to suppress in the instant case, but not in the earlier case, Johnson testified that he demanded a lawyer at about 7:30 p. m. or about 45 minutes after arriving at police headquarters following his arrest and before being taken to the hospital room of Marilyn Rohs; that none was provided until about 9:30 p. m. when he returned from the hospital; that he received no rights warnings from anyone; and that the police hit him several times. He reiterated that he had made no incriminating statements to the police and again denied having given the police permission to return to his home and search it.

Witnesses for the state testified the defendant had been advised of his rights immediately after being arrested at his home and several times after that; that no one hit the defendant; that defendant did not request a lawyer until after he made the incriminating statements; that an attorney from the public defenders office did arrive at the police station and defendant consulted with him; that defendant requested the police to get his billfold from his home and said it contained a clue to the other participant in the crimes; that defendant made the statements or confessions after leaving the hospital room of Marilyn Rohs without any questioning by the police or prosecutors.

The evidence here supports a finding that the police advised Johnson of his rights following the arrest; that Johnson was taken to the hospital where Marilyn Rohs was a patient but was not questioned there nor while returning to the police station; that Johnson made an incriminating statement after leaving Marilyn Rohs’ hospital room and while still in the hospital freely of his own volition and not in response to any questions; that Johnson made a further incriminating statement while returning to the police station freely and of his own volition and not in response to any questioning.

Obviously the occasion for those statements would not have occurred had Johnson not been arrested, but that would be true of practically all statements made after an arrest. Brown v. Illinois, supra, and our cases of State v. Johnson, supra, and State v. Fair, supra, accept that fact but hold that such statements may be admissible in spite of the illegal arrest if they are the product of the person’s free will.

The court holds that the statements made by defendant, although occurring after arrest, were made on his own decision and as an act of his free will to confess and not as a result of exploitation of the arrest. Points I, II, and IV are overruled.

As point III defendant contends that the court erred in overruling his motion to dismiss the indictment on double jeopardy grounds. Defendant had previously been convicted of murder in the first degree in connection with the death of Marilyn Rohs, State v. Johnson, supra, and contends that he, therefore, cannot be prosecuted for the death of Willy Rohs. The point is overruled. State v. Moton, 476 S.W.2d 785 (Mo.1972); State v. Smith, 491 S.W.2d 257 (Mo.1973), cert. den. 414 U.S. 1031, 94 S.Ct. 460, 38 L.Ed.2d 322.

Defendant asserts as point V that “Statements of Circuit Attorney were prejudicial to Appellant and were designed to inflame the jury”, and simply refers the court to the opening statement and closing argument of the state. They have been reviewed and no prejudicial error is apparent. The point is overruled.

Defendant’s point VI is that the court erred in denying defendant’s motion to waive trial by jury under Art. I, sec. 22(a), Mo.Const., which provides in pertinent part, “. . . and that in every criminal case any defendant may, with the assent of the court, waive a jury trial and submit the trial of such ease to the court, whose finding shall have the force and effect of a verdict of a jury.”

After the jury was selected and before the evidence began, defendant filed a memorandum waiving a jury and requesting trial by the court. The motion or request was overruled. This point has been ruled against defendant’s position in State v. Taylor, 391 S.W.2d 835 (Mo.1965), and Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965). The point is overruled.

Point VII is that the court erred in failing to give a circumstantial-evidence instruction. No such instruction was requested. There was substantial direct evidence of defendant’s guilt — his confession. This is not a case where the conviction is predicated on circumstantial evidence alone. No circumstantial-evidence instruction was required. State v. Miller, 359 Mo. 327, 221 S.W.2d 724 (1949); State v. Hutsel, 357 Mo. 386, 208 S.W.2d 227 (1948); State v. Foster, 355 Mo. 577, 197 S.W.2d 313 (1946); State v. Neal, 350 Mo. 1002, 169 S.W.2d 686 (1943); State v. Zammar, 286 S.W.2d 54 (Mo.App.1956); State v. Morris, 307 S.W.2d 667 (Mo.1957); State v. Cox, 352 S.W.2d 665 (Mo.1961); State v. Davis, 491 S.W.2d 549 (Mo.1973). The point is overruled.

As point VIII defendant contends the verdict is against the weight of the evidence. The court has reviewed the record. There is substantial evidence to support the verdict. The point is overruled.

The death penalty assessed in this case cannot be carried out. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Duisen v. Missouri, 408 U.S. 935, 92 S.Ct. 2855, 33 L.Ed.2d 749 (1972); Terry v. Missouri, 408 U.S. 940, 92 S.Ct. 2876, 33 L.Ed.2d 763 (1972). The sentence is hereby reduced to life imprisonment. State v. Cuckovich, 485 S.W.2d 16, 28 (Mo. banc 1972).

It is further ordered that the clerk of this court forthwith forward a certified copy of this order and judgment to the warden of the Missouri state penitentiary and the Missouri department of corrections, Jefferson City, Missouri.

As corrected, the judgment is affirmed.

All of the Judges concur.


author: HENLEY, Judge.

text:
    SEARS, ROEBUCK AND COMPANY, a corporation, Plaintiff-Respondent, v. SEVEN PALMS MOTOR INN, INC., Defendant, Commerce Mortgage Company et al., Defendants-Appellants.
    No. 59021.
    Supreme Court of Missouri, en banc.
    Dec. 18, 1975.

      Gerald Ortbals, Clayton, for defendants-appellants.
    Theodore C. Salveter IV and William E. Stone, Springfield, for plaintiff-respondent.
   HENLEY, Judge.

This case is here on transfer from the court of appeals, Springfield district, after opinion.

It involves a claim by Sears, Roebuck and Company (respondent) to recover $8,357.49 with interest, and to establish a mechanic’s lien, for materials and labor including, among other items, drapes and bedspreads furnished Seven Palms Motor Inn (defendant) in connection with the construction of a motel on land then owned by it. The case was submitted on a stipulation in which it was agreed, in substance, that respondent furnished to defendant all the items listed in the lien statement, that defendant is therefore indebted to respondent in the amount above stated, and that the only issue to be decided is whether respondent is entitled to a mechanic’s lien. The trial court decided this issue for respondent and entered judgment accordingly. The court of appeals affirmed the money judgment but reversed that portion of the judgment imposing the lien, holding that the bedspreads were not lienable items and their inclusion in the statement vitiated the entire lien. While we determine the case the same as on original appeal, Mo.Const. Art. V, § 10, we ordered the transfer primarily to review the questions presented by the holding that the whole lien was vitiated. We decide that it was not.

Other pertinent facts included in the stipulation are:

1. That in addition to drapes and bedspreads, respondent furnished and installed other articles, described in the lien statement by item and the price of each, being: 106 one-way traverse rods; one center draw basic traverse rod; 29 heavy-duty steel curtain rods; and four pair of swinging louvered doors.

2. The only items described in the lien statement which appellants, Commerce Mortgage Company (present owner of the property) and others, claim are not lienable are the drapes and bedspreads.

3. The bedspreads and drapes throughout the motel are matching in color and design and were specially ordered and custom-made for the motel.

4. That the bedspreads are not physically attached to the motel premises in any way but are made to fit over beds in the usual manner; that the drapes are attached to rods which are affixed to the building.

Parts of the opinion of the court of appeals are utilized.

Section 429.010, RSMo 1969 provides in part: “Every mechanic or other person, who shall do or perform any work or labor upon, or furnish any material [or], fixtures . for any building . . . under or by virtue of any contract with the owner . upon complying with the provisions of sections 429.010 to 429.340, shall have for his work or labor done, or materials [or], fixtures . . . furnished, a lien upon such building . . . and upon the land . .

Characterization of an item as a fixture, something otherwise personal but attached to realty under such circumstances as to become part of it, depends upon the finding of three elements: annexation to the realty, adaption to the use to which the realty is devoted, and intent of the annexor that the object become a permanent accession to the freehold. Missouri cases are uniform in requiring each of these elements to be present in some degree, however slight, before an item may be considered a fixture. Blackwell Printing Co. v. Blackwell-Wielandy Co., 440 S.W.2d 433, 438[5] (Mo.1969); State ex rel. State Highway Commission v. Wally Hutter Oil Co., 467 S.W.2d 279, 281[1] (Mo.App.1971).

Appellants contend that neither the drapes nor the bedspreads are fixtures within the meaning of § 429.010 and therefore not lienable, because they are not annexed or attached to the building.

In Crane Co. v. Epworth Hotel Construction and Real Estate Co., 121 Mo.App. 209, 98 S.W. 795 (1906) the plaintiff sought a mechanic’s lien for fire hose (and hose racks) sold to defendant and attached to standpipes installed to convey water for fire protection purposes and run up through the floors of the Epworth Hotel, the hose being attached by screwing it to a valve projecting from the pipe. The court noted that the hose could be either attached or detached by a man with his bare hand, and this could be done without marring the pipe. Stating that it was intended that this attachment be permanent, the court held that the hose was a fixture and lienable. In reaching that conclusion the court said (98 S.W. at 797): “Of [the elements of annexation, adaptation, and intent] in modern times the latter two are more important than the one relating to the method by which the chattel is attached to the freehold. Such annexation, though slight and easily displaced, will not prevent an article becoming a fixture which is adapted to the proper use of a building, and which was placed therein by the owner with the intent of forming a part of the special object and design for which the building was constructed.” Cf. Woodling v. Westport Hotel Operating Co., 227 Mo.App. 1231, 63 S.W.2d 207, 210[8, 9] (1933).

The purpose of attaching the traverse rods to the realty was to hang drapes therefrom which could be opened or drawn across a window by the motel’s guest to control the light in his room or secure his privacy. Of itself, the traverse rod attached to the wall above the window in the room did not accomplish this purpose. To serve this purpose it was essential that the drapes be provided and attached to the rod. They were provided and attached, and became an integral part of the instrument designed for use in connection with the window in the guest’s room. As such, the drapes were as much a fixture as the traverse rod itself. It is obvious that the rod and drapes, as a unit, were adapted to the proper use of rooms in a motel and were placed therein with the intent they would form a part of the special purpose for which the building was designed to be used.

Not so the bedspreads. Respondent admits that those items are not physically attached to the realty in any way but insists that they have been “constructively annexed.” In support of this proposition, respondent argues: the rods are physically fastened to the building; the drapes are affixed to the rods by hooks; the bedspreads match the drapes; a fortiori, the bedspreads “are at least ‘constructively annexed’ to the rooms ... by their relationship with the drapes.”

The doctrine of constructive annexation recognizes that a particular article, not physically attached to the land, “may be so adapted to the use to which the land is put that it may be considered an integral part of the land” and “constructively annexed” thereto. 36A C.J.S. Fixtures § 6, pp. 613-614. Since its development, the doctrine has ordinarily been applied to only three types of objects: (a) machinery placed in an industrial establishment for permanent use and necessary to the operation of the plant (sometimes referred to as “the integrated industrial plant rule”); (b) items that are essential to the use of what is clearly a fixture and cannot readily be used independently elsewhere; and, (c) items normally physically attached to the realty that are severed for a temporary purpose such as cleaning or repair. 36A C.J.S. Fixtures § 6; 35 Am.Jur.2d Fixtures §§ 11, 13, 75-77.

The “integrated industrial plant rule” is usually applied only to industrial plants using a substantial amount of machinery and tools, some of which are essential to the plant’s operation even though not bolted to the floor or otherwise physically attached. 35 Am.Jur.2d Fixtures §§ 13, 101; 36A C.J.S. Fixtures § 11. The rule has not been applied to establishments such as hotels, restaurants, bars and apartment buildings. Thus, movable furniture, tableware and similar equipment, although necessary to the operation of a hotel, are generally not considered fixtures. 35 Am. Jur.2d Fixtures § 94; see: Commercial Finance Co. v. Brooksville Hotel Co., 98 Fla. 410, 123 So. 814 (1929); Klaus v. Majestic Apartment House Co., 250 Pa. 194, 95 A. 451 (1915).

The bedspreads are not essential to the use of what is clearly a fixture, nor has it been shown that they cannot readily be used independently elsewhere. Respondent asserts that because the bedspreads “were designed to match and to coexist with the drapes” they must be considered part of a matched set which is essential to the use of rods which are clearly fixtures. Respondent seeks support for this contention in cases that have held easily removable parts of machines and other fixtures may not be considered as separate items. Crane Co. v. Epworth Hotel Const. & Real Estate Co., supra; Heidegger v. Atlantic Milling Co., 16 Mo.App. 327 (1884); see also: Globe Automatic Sprinkler Co. v. Boester, 231 Mo.App. 203, 95 S.W.2d 825 (1936). However, in each of these cases, the fixture would have been rendered absolutely useless by removal of the items in question, and such items could not readily be used independently elsewhere. There is no indication that the unit of rod and drapes could not serve its function, which respondent says is to “regulate the flow of light and serve the need for privacy,” if the bedspreads were removed. That the decor of a guest room in a motel may be more aesthetically pleasing when bedspreads are made of the same material as drapes, falls far short of the functional relationship needed to justify “constructive annexation.” Since the bedspreads were not annexed, physically or constructively, they cannot be characterized as fixtures and are, therefore, nonlienable items.

Appellants contend that by including the nonlienable bedspreads in its lien statement, respondent has failed to file a “just and true account,” as a result of which the entire lien is vitiated. In Putnam v. Heathman, 367 S.W.2d 823, 828[3-6] (Mo.App.1963) the court said:

“ * * * [Sjince the [mechanic’s] lien is purely a creature of statute, the policy of liberal construction does not relieve the lien claimant from the necessity of reasonably and substantially complying with the requirements of the statute in order to secure its benefits.

“The requisite foundation step for the enforcement of a lien claim is prescribed by Section 429.080 V.A.M.S., which makes it the duty of every person seeking the benefit of the lien law to file ‘a just and true account of the demand due * * * which is to be a lien upon such building * * * ’. A substantial compliance with that requirement is a condition precedent to the right of a lien claimant to maintain his action and to fix a lien upon the property. In Gill v. Harris, 224 Mo.App. 717, 24 S.W.2d 673, we said, ‘ * * * it must be conceded that “a just and true account” is the foundation of the right to maintain the suit; and that an unjust and untrue account, knowingly made, forms no basis for a lien, and no foundation for a cause of action to enforce it, but vitiates the entire right of lien.’ ”

There is no precise definition of a “just and true account” in the cases which have considered and ruled on the question. Lien statements have been held to be “just and true,” or not, depending upon the particular facts of each case. Certain fundamental rules are observed in determining the issue.

It is generally recognized that a lien statement may be regarded as “just and true,” so as not to vitiate the entire lien, if the inclusion of a nonlienable item is the result of honest mistake or inadvertence without intent to defraud and if the non-lienable can be separated from the lienable items. Putnam v. Heathman, supra; Woodling v. Westport Hotel Operating Co., supra; Miners Lumber Co. v. Miller, 117 S.W.2d 711, 717[11, 12] (Mo.App.1938); Hydraulic Press Brick Co. v. McTaggart, 76 Mo.App. 347 (1898). On the other hand, it is also recognized that a lien statement may not be regarded as “just and true” and “can form no basis for the adjudication and establishment of a lien for any part of the account” where the lien claimant deliberately, with intent to defraud, includes in the account a nonlienable item knowing it to be nonlienable. Reese v. Hoyer, 95 S.W.2d 884, 886[1] (Mo.App.1936); Bremer v. Mohr, 478 S.W.2d 14, 18[4, 5] (Mo.App.1972).

None of the cases cited by the parties decide the precise issue presented by this case. We have here a lien statement which included with several items clearly lienable two items (drapes and bedspreads) which had never been determined to be lienable or nonlienable. All of these items were admittedly furnished defendant for the price stated. The statement is presented by a lien claimant who intentionally, and not mistakenly, included these two items therein, claiming that it did so in good faith believing they were, and should be held to be, lienable on the particular facts of this case. We do not understand that appellants contend that the inclusion of these two items was the result of bad faith with an intent on the part of respondent to defraud.

Of these two related items, one has now been held, for the first time, to be lienable and the other nonlienable. We cannot, in reason, conclude on this record that inclusion of the latter in respondent’s claim was in bad faith with intent to defraud. Rather, we conclude that respondent, believing with reason that both items were lienable, acted in good faith when it included them. Clearly, a reasonably debatable question was presented as to whether or not these two custom-made matching items were fixtures. Respondent’s argument that both were lienable was not without some substance, even though we have determined that one, the bedspreads, was not a fixture and not liena-ble. In these circumstances, the inclusion in the lien statement of the nonlienable item, separable as it is from the lienable items, does not vitiate the entire lien.

Appellants do not question the money judgment in favor of respondent and against defendant, Seven Palms Motor Inn. Accordingly, that part of the judgment is affirmed. That part of the judgment imposing a lien on the property for the full amount of the money judgment is reversed and the cause is remanded with directions that the trial court enter judgment in favor of respondent imposing a lien for the amount of the balance due according to the statement after deducting therefrom the amount charged for the bedspreads.

SEILER, C. J., and MORGAN, BARD-GETT, FINCH and DONNELLY, JJ., concur.

HOLMAN, J., dubitante.


text:
    STATE of Missouri, Respondent, v. John RACCAGNO, Appellant.
    No. 58843.
    Supreme Court of Missouri, Division No. 1.
    Dec. 24, 1975.

      David Skeer, Kansas City, for appellant.
    Willard B. Bunch, County Counselor, Stanley P. Christopher, Deputy County Counselor, John E. Cash, Ralph L. Martin, Pros. Atty., Robert Frager, Asst. Pros. Atty., Kansas City, for respondent.
   BARDGETT, Judge.

Appellant John Raccagno was charged with the commission of a misdemeanor in that he did “unlawfully and intentionally fail to comply with the duly promulgated regulations of the Director of Revenue dealing with the collection of County Cigarette Taxes, to-wit: being then and there the person who first sells the cigarettes within the State of Missouri and in such capacity failing to affix the proper county tax stamp to a certain package of BelAir Brand cigarettes sold within the County of Jackson and State of Missouri thereof . . . The prosecution was premised on the provisions of section 210.320, RSMo 1969 (S.B. 241 of the 75th General Assembly, 1969). Section 210.320(2) inter alia, authorizes counties of the first class with all or the greater part of a city of 350,000 or greater to impose a tax on cigarettes of two and one-half mills per cigarette sold in that county for the purpose of helping to defray the expenses of certain places of detention for delinquent or dependent children and other children’s services within the county.

Jackson County, by its then governing body, the county court, did in 1969 adopt an order imposing the tax authorized by 210.-320(2). The statute requires the tax to be paid and the stamp affixed in the same manner as is provided by chapter 149. Chapter 149, the state cigarette tax law, was repealed and reenacted with some changes by Laws of Mo.1974, p. 775, 77th General Assembly, but the manner of paying the tax and affixing the stamps remained the same.

It is stipulated that appellant, a tobacco wholesaler, first sold a package of cigarettes in Jackson County upon which there was no county tax stamp. The prosecution was instituted in magistrate court and transferred to the circuit court of Jackson County because appellant raised the defense that the enabling act, section 210.320, was unconstitutional. Appellant was found guilty of a misdemeanor by the circuit court where the case was tried without a jury; imposition of sentence was suspended, and appellant was placed on probation for a period of thirty days.

The appellant asserted numerous objections to the validity of the statute on constitutional grounds in the lower courts and has maintained his constitutional objections throughout the proceedings. Additionally, section 210.820, insofar as it authorizes a tax, is a revenue law of this state. This court has jurisdiction of the appeal, Art. V, sec. 3, Mo.Const., as amended 1970.

This is not a declaratory judgment case but rather an appeal from a criminal conviction and the relief sought is a reversal of that conviction.

The penalty provision of section 210.320 is found in subsection 6 thereof. It provides: “The director of revenue of this state shall promulgate reasonable and necessary regulations for the collection of this tax and any violation of such regulation is a misdemean- or and any person convicted of such a misdemeanor shall be punished by law.” (Emphasis supplied.)

Under section 556.270 the appellant was subject to being punished by imprisonment in a county jail not exceeding one year, or by a fine not exceeding one thousand dollars, or by both such fine and imprisonment.

The information upon which appellant was prosecuted shows on its face that appellant was charged with a violation of a regulation promulgated by the director of revenue. The penalty section of 210.320(6) makes the violation of a regulation a misdemeanor. That provision, section 210.320(6), does not make the violation of the statute itself a misdemeanor, nor does it provide that the violation of the statute itself is to be the subject of any criminal prosecution.

The appellant contends, inter alia, that the director of revenue did not promulgate regulations under the authority of section 210.320 and that, assuming regulations were promulgated, section 210.320(6) constituted an unconstitutional delegation of power by the general assembly in that it allowed the director of revenue to decide what acts will constitute a criminal offense.

In November 1969 the director of revenue of Missouri prescribed “Rules and Regulations covering Tax on Sale of Cigarettes”. The first paragraph of this document states, “Pursuant to authority vested in the Collector of Revenue by Chapter 149, RSMo., the following Rules and Regulations, effective November 17, 1969, are hereby adopted. These Rules and Regulations supersede and cancel all previous Rules and Regulations issued by this Division under such authority.”

Chapter 149, referred to in the director’s regulations supra as the authority for the regulations, was the state statute imposing a statewide cigarette tax and not a county cigarette tax. Specifically, chapter 149 does not deal with the cigarette tax authorized by section 210.320(2) to be imposed only by first-class counties with all or the greater part of a city of 350,000 or more. The body of the document does make reference to a situation where a combination of state, city or county cigarette taxes are involved and also provides, “Wholesalers must use Pitney-Bowes red ink only to stamp state meter impressions and Pitney-Bowes black ink only to stamp dual meter (city and state) impressions on packages of cigarettes, blue ink only to stamp impressions on packages of cigarettes for St. Louis County, green ink only to stamp impressions on packages of cigarettes for Jackson County, and purple ink only to stamp impressions on packages of cigarettes for Kansas City North (Clay County). Any violation of stamping with the incorrect color of ink will be sufficient cause for revocation of permission to use meters.” These regulations were filed in the secretary of state’s office.

Nowhere do these regulations make reference to nor do they purport on their face to have been adopted pursuant to section 210.320(6), the statutory authority for the adoption of rules and regulations, reference the specific tax authorized by section 210.320(2). Yet these regulations, under the state’s theory, take on the aspect of a criminal statute for it was the violation of a regulation that was the basis of this criminal prosecution and conviction. The most that can be said with reference to whether or not the regulations noted supra were adopted pursuant to section 210.320 is that it is doubtful. As such, it becomes subject to the familiar principle that a criminal statute must be strictly construed against the state and in favor of the defendant, State v. Harper, 510 S.W.2d 749, 751 (Mo.App.1974), and cases therein cited. Upon that basis, this conviction cannot stand. However, to reverse solely on that basis would undoubtedly result in the adoption of regulations by the director of revenue of Missouri pursuant to section 210.320(6) and the filing of same with the secretary of state followed by other criminal prosecutions for the violation of such regulations.

Therefore, the court will now decide whether the delegation by the legislature as set forth in section 210.320(6) was unconstitutional.

First it is noted that the legislature did not make the violation of any of the provisions of section 210.320 a criminal offense. Section 210.320(6) left it to the director of revenue to promulgate reasonable and necessary regulations and make the violation of a regulation the criminal offense. As such, the statute delegated the power to the director of revenue to say whether or not the failure to pay the tax authorized by section 210.320 would be criminally punishable. If the director does not promulgate a regulation requiring the tax to be paid by the person first selling the cigarettes in Jackson County, then the sale of the cigarettes without first paying the tax is not criminally punishable because not required by a regulation.

As such, it is clear that section 210.320(6) leaves it to the discretion of the director of revenue to specify by regulation what act or conduct on the part of a citizen shall constitute a criminal offense.

This is particularly apparent in the instant case because here the legislature did not even specify that a violation of the statute itself constituted a criminal offense.

The state argues in its brief as follows:

“It must here be observed that appellant is not charged with violating some exotic, irrelevant and arbitrary regulation promulgated by the Director of Revenue. If appellant had paid the tax, purchased stamps and generally complied with the substance of the law but simply applied the stamp backwards, upside down or in some other respect violated a technical and minor regulation, then his complaint would have merit and he would not and could not have been convicted of violating this statute.

“Appellant herein intentionally disregarded the very substance of the statute, to-wit, the tax itself .

“Appellant however complains of the obviously procedural wording of both the statute and the body of the information, which clearly followed the language of the statute.

“The General Assembly did, in fact, determine what acts were criminal, to-wit: the intentional failure and refusal to pay the tax, and the punishment therefrom resulting.

“Since appellant has been charged and found guilty of violating the substance and heart of the statute, to-wit: the tax, he should not be allowed and cannot legally complain of what might exist under a theoretical and clearly non-existent set of facts.”

The fallacy of the state’s position is that, by the terms of the statute itself, the legislature did not make the violation of the “substance and heart of the statute, to-wit: the tax” a criminal act. If that act is a crime, it is because it violates a regulation and not because it violates the law itself, according to section 210.320(6). Furthermore, the state’s argument is somewhat self-defeating for under section 210.320(6) the violation of any regulation — technical, minor, or major — is a criminal offense.

The issue in this case is not so much whether the regulations were administratively reasonable and necessary from the standpoint of collecting the tax but rather involves the fundamental power to make an act a criminal offense. It can be refined by asking the question: Did the legislature mandate by law that the failure to pay the tax — comply with the law — would be a criminal offense? While it would not seem reasonable to say the legislature intended that a violation of the law would not be a misdemeanor but a violation of a regulation would be; yet, at a minimum, it clearly appears that the legislature did leave the decision as to whether or not a violation of any specific provision of the law would constitute a criminal offense to the director of revenue. He was to exercise this power by promulgating regulations requiring or prescribing certain acts to be done or not done. Although the limitation of “reasonable and necessary for the collection of this tax” may be sufficient to circumscribe the director’s discretion in promulgating procedural regulations, it is no restriction whatever when the question is whether or not to make the noncompliance a criminal act. It is the delegation of power to the director that allows him to decide what, if anything, will constitute the criminal act that is the vice of this statute.

In State v. Bridges, 398 S.W.2d 1, 5 (Mo. banc 1966), this court upheld the authority of the division of health to identify and file a list of stimulant drugs, the possession of which constituted a criminal offense. But there the legislature defined “stimulant” drug and the court held that the division was limited to listing only those drugs which fall within the statutory definition. No such restrictions on the director of revenue’s description appear in section 210.-320(6).

Art. II, section 1, Mo.Const., provides for the separation of power into three distinct departments — legislative, executive, and judicial — and prohibits the exercise of power properly belonging to one of those departments from being exercised by another. The department of revenue is part of the executive branch of our government.

It is fundamental that to declare what shall constitute a crime and the punishment therefor is a power vested solely in the legislature and may not be delegated to any other body or agency. 1 Am.Jur.2d, Administrative Law, section 127, p. 938.

Respondent has not cited any case or other authority dealing with the type of penalty clause found in section 210.320(6), and there appear to be no Missouri cases directly in point.

In Casey v. Colorado, 139 Colo. 89, 336 P.2d 308 (banc 1959), Casey was prosecuted for violation of a regulation in that he failed to secure a trailer-court license. This prosecution was based on the failure of Casey to comply with rules and regulations of the board of health. The regulation was adopted by the board of health pursuant to a statute which authorized the board of health to adopt rules and regulations and provided that the violation of any such rules and regulations shall be a misdemean- or subject to a fine or imprisonment or both.

The court held the statute, insofar as it delegated to the executive department the power to define a crime, violative of Art. Ill of the Colorado constitution. Art. Ill of the Colorado constitution is virtually the same as Art. II, section 1, of the Missouri constitution.

In Bacus v. Lake County, 138 Mont. 69, 354 P.2d 1056 (1960), the court held a provision of a statute which provided that a violation of the rules or regulations adopted pursuant to a statute shall be punished by a fine or imprisonment not exceeding ninety days violated the nondelegation-of-powers provision of Art. IV, section 1, of the Montana constitution. Again, Art. IV, section 1, of the Montana constitution is virtually the same as Art. II, section 1, of the Missouri constitution.

The court holds the provision of section 210.320(6), which provides “and any violation of such regulation is a misdemean- or and any person convicted of such a misdemeanor shall be punished by law”, constitutes an attempt to delegate legislative power to an administrative agency and as such violates Art. II, section 1, of the Missouri constitution.

The court considers this to be a narrow but fundamental decision. The court holds that under our constitution the legislature cannot delegate to an administrative agency the power to determine whether or not a specific act is to be criminally punishable.

As noted supra, this is a criminal appeal and the relief sought is a reversal of the appellant’s conviction. In view of the holding set forth supra, it is not necessary to reach the other contentions made by appellant.

The judgment is reversed and the appellant discharged.

HOLMAN, P. J., and SEILER, C. J., concur.

DONNELLY, J., not a member of division when cause was submitted.