author: McMILLIAN, Judge.

text:
    Alvin L. WELCH, Plaintiff-Respondent, v. HESSTON CORPORATION and Alvin Adams, Jr., Defendants-Appellants.
    Nos. 37087, 37091.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 6, 1976.
    Motion for Transfer Denied Aug. 18, 1976.

      Schaper & Woods, Bowling Green, Kor-tenhof & Ely, Joseph M. Kortenhof, St. Louis, for defendants-appellants.
    Mcllroy & Millan, Bowling Green, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendants appeal from a jury verdict awarding $10,000 to plaintiff for personal injuries sustained while fighting a fire in a haystacker. We reverse.

Plaintiff submitted his case against Adams on a theory of negligence in the operation of a tractor used to pull the haystacker. Liability of Hesston Corporation (hereinafter referred to as Hesston) was founded on a theory of liability arising from a defect in the design and manufacture of the hay-stacker. On appeal both defendants allege that the trial court erred in denying their respective motion for directed verdicts.

Defendant Adams suggests that plaintiff should have been found to have assumed the risk as a matter of law. Defendant Hesston contends that no jury submissible case was made against it because plaintiff failed to introduce evidence to establish the cause of the fire or any defect in design of the haystacker. Both defendants contend that plaintiff’s recovery should have been precluded because, as a matter of law, any conduct of the defendants was not the proximate cause of plaintiff’s injuries. It is our evaluation and approval of this proximate cause contention of the defendants that prompts us to reverse the decision of the trial court.

In light of the basis for our reversal, the pertinent facts of this controversy become quite simple. Defendant Hesston designed the haystacker machine. Arguably, the design of the machine was defective in that because of a short front-connecting hitch the wheels of a dual-wheeled tractor of a kind often used to pull the haystacker would rub against a protective shield on the haystacker. Resulting friction could cause a fire. Defendant Adams had purchased a haystacker and was using it in conjunction with a dual-wheeled tractor to stack hay on a farm near Eolia, Missouri. Adams’ use of a dual-wheeled tractor coupled with repeated sharp turns of the tractor resulted in a fire in the haystacker.

Since the regular fire department was unavailable, plaintiff, a retired volunteer fireman, was recruited to bring his truck with its 1000 gallon water tank to fight the fire. Plaintiff doused the haystacker with approximately 500 gallons of water putting out all of the flames. Suspecting, however, the hay inside the stacker would continue to smoulder and eventually begin to burn again, plaintiff suggested that chains be put around the hay and the hay thereby pulled out of the stacker by use of the tractor. Although the stacker was at the time still full of steam and smoke, plaintiff and another man climbed into the stacker to connect the chains. Plaintiff fell through a hole into the hay which was still burning beneath the surface. His right leg was severely burned.

As a preliminary matter we must dispose of plaintiff’s contention that defendant Hesston has not preserved the proximate cause contention for appellate review. While the contention was not specified in Hesston’s motion for a new trial, we feel that the issue was properly brought to the attention of the trial court by reference to it in Hesston’s motions for a directed verdict at the close of plaintiff’s case and at the close of all of the evidence. Identification of an issue in a motion for a directed verdict is sufficient to preserve the issue for appellate review, V.A.M.R. 78.07 and 72.01. In the motions for a directed verdict, Hes-ston contended that plaintiff should be found guilty of contributory negligence as a matter of law. This was sufficient preservation because the defense that Hesston and Adams are raising is, in reality, the Missouri “rescue doctrine”. As will be discussed subsequently, the Missouri “rescue doctrine” has two variants. One variant explains the doctrine in terms of proximate causation; the other treats the doctrine as one relating to contributory negligence as a matter of law. By Hesston’s motion for a directed, verdict it brought the second variant of the doctrinal defense to the attention of the trial court.

The Rescue Doctrine — in a long line of Missouri cases there has emerged a beneficient doctrine known as the “imminent peril” or “rescue” doctrine “under which it is held not negligence to knowingly and voluntarily place one’s self in a position where he is liable to receive a serious injury when the exposure is for the purpose of saving human life . . . ” McConnell v. Pic-Walsh Freight Co., 432 S.W.2d 292, 299 (Mo.1968). The rescuer will be allowed to recover against the originally negligent wrongdoer for injuries sustained in the rescue attempt if the jury does not find that the rescuer’s conduct was rash or reckless, Hammonds v. Haven, 280 S.W.2d 814, 816 (Mo.1955).

Unlike a majority of other jurisdictions, Missouri has extended the benefits of this doctrine only to rescuers of persons and not to rescuers of property, Boyd v. Terminal R. R. Ass’n of St. Louis, 289 S.W.2d 33, 38 (Mo.1956); Johnson v. Terminal R. R. Ass’n, 320 Mo. 884, 8 S.W .2d 891, 893 (Mo. Banc 1928); Eversole v. Wabash R. Co., 249 Mo. 523, 155 S.W. 419, 424-5 (Mo.1913) and Ellmaker v. Goodyear Tire & Rubber Co., 372 S.W.2d 650, 657 (Mo.App.1963).

In Missouri a rescuer of property rather than being afforded the special protection given to a rescuer of persons is barred as a matter of law from recovering against the original wrongdoer under one of two theories, Boyd v. Terminal R. R. Ass’n of St. Louis, supra. Sometimes the bar to recovery is phrased in terms of a lack of proximate cause, that is, the rescuer’s act is found to be the legally efficient cause of injury superseding the negligence of the defendant, Logan v. Wabash Ry. Co., 96 Mo.App. 461, 70 S.W. 734 (1902); McManamee v. Missouri Pac. Ry. Co., 135 Mo. 440, 37 S.W. 119, 121 (1896) and Johnson v. Terminal R. R. Ass’n, supra, 8 S.W.2d at 895. Sometimes the plaintiff is denied recovery because an attempt to rescue imperiled property by a method endangering the safety of the rescuer is deemed to be contributory negligence as a matter of law, Eversole v. Wabash R. Co., supra, 155 S.W. at 425. Under either the proximate cause or the contributory negligence analysis, the result is really a function of a policy choice. A proximate cause analysis of the problem in terms of whether a rescue of property and consequent injury is reasonably foreseeable on its face seems peculiar. It is hard to say that an attempt to rescue imperiled property is any less foreseeable as a general rule than an attempt to rescue imperiled persons. When, however, proximate cause is recognized simply as legal shorthand for a policy decision on the limits of liability, the result barring a rescuer of property from recovery becomes more plausible. As expressed by Prosser:

“ ‘Proximate cause’ — in itself an unfortunate term — is merely the limitation which the courts have placed upon the actor’s responsibility for the consequences of his conduct . As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. Some boundary must be set to liability for the consequences of any act, upon the basis of some social idea of justice or policy.
“This limitation is sometimes, although rather infrequently, one of the fact of causation. More often it is purely one of policy, of our more or less inadequately expressed ideas of what justice demands, or of administrative possibility and convenience, none of which have any connection with questions of causation at all.”

The policy basis of the distinction in treatment of rescuers of persons and rescuers of property seems “to rest upon that high regard in which the law holds human life and limb; whereas, when mere property is involved, one may not voluntarily subject another to greater liability than that which he seeks to avert . . . ” Tayer v. York Ice Machinery Corp., 342 Mo. 912, 119 S.W.2d 240, 246 (Mo.1937).

Respondent suggests that the rigid distinction between rescuers of persons and rescuers of property has been broken down in Missouri law. We can detect no clear breakdown. Our research has disclosed only two Missouri cases departing from a statement of the strict doctrinal dichotomy. Thus, in Slinkard v. Lamb Const. Co., 212 S.W. 61, 63-4 (Mo.App.1919) aff’d 286 Mo. 623, 225 S.W. 352 (Mo.1920), the court allowed the question of plaintiff’s contributory negligence in attempting to stop his employer’s frightened team of horses to go to the jury. In Hill v. East St. Louis Cotton Oil Co., 202 Mo.App. 478, 214 S.W. 419, 422 (1919), the court was hesitant to adopt a general rule holding all rescuers of employer’s property contributorily negligent as a matter of law. We are reluctant to say whether the Slinkard and Hill opinions, turning as they do on the duty of the employee-plaintiff to rescue the employer’s property, can be reconciled with the normal pronouncements of the Missouri “rescue” doctrine. An early opinion of the Supreme Court refused recovery to a rescuer fighting a fire on his own property, Logan v. Wabash Ry. Co., supra. See also Johnson v. Terminal R. R. Ass’n, supra. In addition, it is pertinent to note that in Hill, despite the court’s protestations against adopting a general rule, the plaintiff was found to be contributorily negligent as a matter of law, Hill v. East St. Louis Cotton Oil Co., supra, 214 S.W. at 422. The result in Slinkard, also does not challenge our decision in the present case. In Slinkard the plaintiff’s efforts to stop his employer’s runaway horses appeared to be an immediate response to an emergency situation unlike the deliberate decision of the plaintiff in the present case to voluntarily enter the smoke-filled haystacker.

Our examination of Missouri case law reveals that the “rescue” doctrine is still restricted to rescuers of persons. In the present case, there was no suggestion that plaintiff’s efforts were directed to rescuing people. In Missouri, the plaintiff is thus precluded from recovery under the long-established policy. As a matter of law, therefore, the trial judge should have directed a verdict for both defendants because their negligent conduct merely created a condition whereby plaintiff was caused to be injured; hence their negligence was remote. On the other hand it was plaintiff’s intervening voluntary negligent act of entering the haystacker to pull out the hay that was the legal or efficient cause of his injuries. Consequently, the cause is remanded to the trial court with directions to enter an order consistent with this opinion.

Judgment reversed.

WEIER, P. J., and KELLY, J., concur.

      . See also Mo. Digest, Negligence @=74.

      . See e. g., Prosser, Law of Torts, p. 272 (4th Ed. 1971); Restatement Torts Second, § 445 (1966); Annot. 64 ALR 515 (1929); Annot. 42 ALR2d 494 (1955).

      . Prosser, Law of Torts, pp. 236-7 (4th Ed. 1971).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Felix W. DUNCAN, Jr., Defendant-Appellant.
    No. 36972.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 6, 1976.
    Motion for Rehearing or Transfer Denied Aug. 18, 1976.

      James C. Jones, Asst. Public Defender, St. Louis, for defendant-appellant.

      John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant appeals his conviction of murder in the second degree, for which he was sentenced to twenty (20) years in the Missouri Department of Corrections. For the reasons discussed below, we affirm.

On the evening of March 15, 1974, defendant went to the Hole in the Wall Tavern with LaVera Davenport. After a few minutes, they went to 1522 Elliott Avenue, St. Louis, Missouri, where Ms. Davenport lived with Linda Jamison. Defendant asked for a shotgun, and Ms. Jamison gave him one which was in the kitchen. Ms. Davenport carried the shotgun back to the tavern for defendant. Defendant told her that he was “going to get that man” and pointed out a man wearing a brown hat, brown jacket and brown pants.

At about 12:30 A.M., Ms. Jamison and Ms. Davenport returned home. Marvin Hemphill (Ms. Davenport’s boyfriend) and two other men arrived shortly thereafter.

Ms. Jamison testified that between 2:00 to 2:30 A.M., defendant asked her for a clothes hanger, straightened it out and left with Hemphill, saying that he was going to steal a car. That was the last she saw of them before falling asleep.

At this point Ms. Davenport’s testimony becomes crucial. According to her, defendant said that he was going to get a car and left alone with the shotgun but without the clothes hanger. When defendant returned with a billfold, his right hand was cut and bleeding. He said, “ . . ‘I’m going to kill that mother.’ ...” Then he ran back outside with the shotgun, followed by Hemphill and Ms. Davenport. She observed defendant with the shotgun by a parked car. He was aiming at the car window and fired two shots. Ms. Davenport stated unequivocally that Hemphill did not have the shotgun. Defendant and Hemphill transferred a man from the front to the back seat of the parked car and drove off.

Ms. Willie Burch, who resided in the 2700 block of Howard Street, testified that between 2:00 and 2:30 A.M., on March 16, 1974, she heard three shots. Noises, like someone running, attracted her attention, so she looked out her back bedroom window. She saw two girls in the next yard and defendant coming into her backyard. Defendant ran up a gangway near the kitchen door. There was a noise with the trash can. Then defendant left her yard, and she heard an argument from the next yard. Although Ms. Burch could not make out the entire dialogue she recognized several statements as being those of defendant’s. Defendant made a statement about “ . . . somebody help him to do something . . . ” Defendant was concerned with “fixing something or trying to unfix something.” Ms. Burch testified, “There was something said, but I didn’t tell you to shoot, I said pull it” and that defendant responded, “ . . . the guy could identify him or something.” Ms. Burch knew Hemphill and stated that he was not a party to the conversation. Defendant went down the ally toward Elliott Avenue, while the two girls and another boy went down Howard Street. The next Monday night, when Ms. Burch emptied her trash can, she found a shotgun in three parts.

At some time prior to 4:20 A.M., on March 16, 1974, defendant and Hemphill brought a body to City Hospital No. 2 in a 1971 Pontiac with the front two door windows completely shattered. The cause of death was a shotgun wound on the right side of the face.

Defendant and Hemphill were taken to the Ninth District Police Station to be questioned as possible witnesses to the shooting; they were not considered suspects. Under these circumstances, without being placed under arrest or advised of his constitutional rights, defendant made a statement between 7:30 A.M. and 8:30 A.M. Defendant and Hemphill were first considered as suspects when their statements were inconsistent. Then a gunshot residue test was administered. Defendant was next questioned at about 2:00 P.M. At that time, defendant was told that he was under arrest and charged with murder. He was given his rights. After each right, he indicated that he understood and waived his rights. Defendant then gave a second statement. He said that he had not told the truth in the first statement. He said that he was close to the deceased when the incident occurred but that Hemphill was the perpetrator.

A senior research chemist from the Environmental Trace Substances Research Center at the University of Missouri used neutron activation analysis (hereafter NAA) to interpret the gunshot residue tests administered to defendant and Hemphill. He testified that both defendant and Hemphill had handled and discharged a firearm.

On appeal defendant raises four points as error. First, he contends that the court erred in overruling defendant’s motion for judgment of acquittal at the close of all the evidence because the state failed to establish that the victim’s death was caused by defendant. Second, he contends that the trial court erred in overruling defendant’s motion to suppress his second statement because it was tainted by a prior inadmissible statement. Third, he contends that the trial court erred in admitting into evidence a sawed-off shotgun, because no foundation was laid and it was irrelevant. Fourth, he contends that the trial court erred in admitting into evidence the purported shirt and pants of the victim, because these exhibits were not identified by the witnesses and no chain of custody was shown.

Defendant’s first contention comes to us in a novel posture. Typically, a defendant asserts that positive results in his own gunshot residue tests are inadmissible because NAA lacks reliability. State v. Stevens, 467 S.W.2d 10 (Mo.1970); State v. Johnson, 539 S.W.2d 493 (Mo.App.1976) and State v. Ross, 523 S.W.2d 841 (Mo.App.1975). Here, on the contrary, defendant is asking us to hold that NAA results are not only admissible but so conclusive that positive results on both defendant and another person will negate eyewitness testimony that defendant alone fired the gun. If the interpretation of NAA results were to overcome Ms. Davenport’s testimony, the state would have proved that defendant fired a gun but would have failed to exclude the hypothesis that the victim was already mortally wounded by a shot from Hemphill. According to defendant’s logic, since the state has the burden of proving all the elements of second degree murder, including proof that the defendant’s act caused death, the state failed to make a prima facie case.

Defendant relies upon the so-called “physical facts” rule:

“Testimony of a witness, although not directly controverted, which is opposed to the unquestioned laws of nature that lie within the court’s judicial knowledge or which is clearly in conflict with scientific principles as established by the laws of physics or mechanics is of no probative value . . . [Ujpon review the appellate court may ignore the testimony or reverse the case for lack of evidence sufficient to sustain the verdict. . . . ” 30 Am.Jr.2d, Evidence, § 1086. See e. g., Gilpin v. Gerbes Supermarket, Inc., 446 S.W.2d 615 (Mo.banc 1969); Kelly v. Terminal RR Ass’n of St. Louis, 315 S.W.2d 699 (Mo.1958); Ochs v. Wilson, 427 S.W.2d 748 (Mo.App.1968); Ewen v. Spence, 405 S.W.2d 521 (Mo.App.1966).

The “physical facts” rule applies only when the conflicting testimony goes to some vital issue in the case. Vaeth v. Gegg, 486 S.W.2d 625, 628 (Mo.1972) and State v. Davis, 504 S.W.2d 221, 223 (Mo.App.1973). The rule does not apply to the credibility of witnesses, which is for the jury. Anderson v. Orscheln Bros. Truck Lines, 393 S.W.2d 452, 460 (Mo.1965) and State v. Davis, supra, at 223. Nor does it apply to estimates. Anderson v. Orscheln Bros. Truck Lines, supra, and Wood v. Ezell, 342 S.W.2d 503 (Mo.App.1961).

The short answer to defendant’s first contention is that it is essentially a claim of insufficient evidence. In reviewing the sufficiency of the evidence, an appellate court is required to consider the evidence and any reasonable inferences from the evidence in the light most favorable to the state and to disregard all contrary evidence and inferences. State v. Stapleton, 518 S.W.2d 292 (Mo.banc 1975) and State v. Burks, 521 S.W.2d 11, 14 (Mo.App.1975). Construed in this manner, the evidence is more than sufficient to sustain appellant’s conviction for murder in the second degree. The testimony of Ms. Jami-son, Ms. Davenport and Ms. Burch, as well as the state’s exhibits, the results of defendant’s gunshot residue test, the cause of death as determined by the autopsy, and defendant’s arriving at the hospital with the victim and his subsequent statements to the police constitute sufficient evidence to show that appellant fired the shotgun blast which killed Henry DeBerry. All contrary evidence and inferences such as the gunshot residue test of Marvin Hemphill, are therefore disregarded. Clearly, the state made a submissible case.

Considered on the merits, defendant’s first contention would raise an issue of first impression. We have been unable to find a decision ascertaining the probative force to be accorded NAA results in relation to the “physical facts” rule. Further, we emphasize at the outset that this determination must be made on a case-by-case basis. Application of the “physical facts” rule would require positive responses to two questions: First, is NAA an incontrovertible fact? Second, does it directly contradict the eyewitness testimony?

Regarding the former, NAA is an extremely accurate, widely accepted method of determining the elemental composition of a sample. State v. Ross, supra. However, since the NAA results by themselves reveal only what chemical elements are present and in what concentrations, all of the cases require that the computer data be interpreted by an expert witness. See generally Annot., 50 A.L.R.3d 117 (1973) and cases cited therein. Based on the levels of barium and antimony in the sample, the expert testifies as to the likelihood of the subject’s having recently handled or discharged a firearm.

This testimony, like all expert testimony, can be challenged on a number of grounds, including the qualifications of the expert, the size and representativeness of the control group, the technique of analysis and the purpose for which the evidence is offered. See State v. Stout, 478 S.W.2d 368 (Mo.1972); State v. Stevens, supra; State v. Johnson, supra. For example, in this case it was brought out on cross-examination that shotguns pose different problems from handguns and rifles because of the tremendous amount of “blowback” and that the control group for shotguns was small (about 25 as compared to 200-250 for handguns and rifles). The weight to be accorded such testimony is for the jury. Assuming without deciding that the expert’s testimony was not impeached, NAA results could have come within the rule as “facts” established by physics.

Regarding the second question, NAA results are not sufficient to overcome eyewitness testimony unless they directly contradict that testimony. In this case, the expert witness testified, “ . . . within a reasonable degree of scientific certainty this person (Hemphill) had recently handled and discharged a firearm.” But he defined “recently” as ranging from immediately to several days, with an average of six to twelve hours. In this case, the “fact” that Hemphill had handled and/or discharged a gun within the previous several days does not directly contradict Ms. Davenport’s testimony that defendant alone fired two shots at the victim and that Hemphill did not have a shotgun at that time. The probability that he had “recently” discharged a firearm may indicate only that he fired a weapon at some earlier time. Therefore, the “physical facts” rule could not have been invoked by this court to disregard Ms. Davenport’s testimony.

Defendant’s second contention is likewise unavailing. The trial court sustained defendant’s motion to suppress as to his first statement because he had not been given his rights at that time. However, the motion to suppress was overruled with respect to his second statement because the court found beyond a reasonable doubt that he was properly advised of his Miranda rights, he understood those rights, and he voluntarily and intelligently waived them.

Our review of the trial court’s ruling on the motion to suppress is limited to a determination of whether the evidence was sufficient to sustain its findings. State v. Collins, 519 S.W.2d 362, 363 (Mo.App.1975) and State v. Stubenrauch, 503 S.W.2d 136, 138 (Mo.App.1973). An earlier statement made by a defendant without being advised of his rights does not per se invalidate a subsequent statement which was made after appropriate warnings had been given. State v. Wright, 515 S.W.2d 421 (Mo.banc 1974) and Boyer v. State, 527 S.W.2d 432, 439 (Mo.App.1975).

Defendant relies on State v. Williams, 486 S.W.2d 468 (Mo.1972), for his assertion that his second statement was the “fruit” of his earlier inadmissible statement. Williams, supra, however, is inappo-site. There, the suspect was under arrest and at the police station when he made the illegally obtained admissions, which were virtually identical to the subsequent written confession. Here, the two statements were not so closely related. The defendant was neither in custody nor a suspect at the time of the first statement, and, while both versions were intended to be exculpatory, defendant’s second statement was completely inconsistent with his first and certainly not induced by it. In our judgment the state met its burden of proving that the accused waived his rights prior to the second statement. The defendant presented no evidence of coercion. Whatever taint may have attached to the first statement was purged prior to the second statement. There is sufficient evidence to sustain the rulings of the trial court.

Defendant’s third contention is that the admission of a sawed-off shotgun, was prejudicial error because no proper foundation was laid. It is a general rule that “weapons and objects not connected with the defendant or the crime are not admissible unless they possess some probative value. . . . ” State v. Wynne, 353 Mo. 276, 182 S.W.2d 294, 299 (1944). See also State v. Davis, 530 S.W.2d 709 (Mo.App.1975). The determination of whether a weapon is properly admitted focuses on whether there is evidence which connects it to the crime or to the accused. State v. Wynne, supra, 182 S.W.2d at 299 and State v. Richetti, 342 Mo. 1015, 119 S.W.2d 330, 339 (1938). If found near the scene of the crime, a weapon with which the crime might have been committed is admissible. State v. Bennett, 468 S.W.2d 23, 25 (Mo.1971) and State v. Richetti, supra, 119 S.W.2d at 339. Possession of the alleged murder weapon shortly before the crime is a significant factor supporting its admission into evidence. State v. Stancliff, 467 S.W.2d 26, 30 (Mo.1971). The identification of a weapon need not be entirely unqualified to permit its admission into evidence; the weight to be given such evidence is for the jury. State v. Davis, 535 S.W.2d 259, 260 (Mo.App.1976) and State v. Murphy, 521 S.W.2d 22, 26 (Mo.App.1975).

Ms. Jamison identified the shotgun as the one she gave to defendant that evening. Therefore, defendant possessed the alleged murder weapon shortly before the crime. Ms. Davenport testified that appellant fired a shotgun into the victim’s car. Ms. Burch testified that after hearing shots she saw appellant in her backyard and heard noises at the trash can and various statements about a shooting and that the next time she examined her trash can she found a disassembled shotgun which she gave to the police. Therefore, the shotgun was near the scene of the crime. All of the above evidence tends to connect Exhibit No. 10 to both defendant and the crime. Ms. Davenport denied that Exhibit No. 10 was the shotgun she carried for defendant. However, it was for the jury to weigh her testimony against the positive identifications by Ms. Burch and Ms. Jamison. Since the evidence was sufficient to connect the shotgun to both appellant and the crime, the trial court did not err in admitting it into evidence.

Defendant’s fourth contention is that the trial court erred in admitting into evidence the pants and shirt of the victim for the reason that the exhibits were not identified by the witnesses and no chain of custody was shown. The admission of exhibits into evidence, including the clothes of a victim, has been vested in the sound discretion of the trial court. State v. McRoberts, 485 S.W.2d 70, 72 (Mo.1972); State v. Evans, 406 S.W.2d 612, 617 (Mo.1966). Identification of an exhibit is not insufficient merely because the witness uses expression such as “similar to” or “looked like.” State v. Stancliff, supra, at 30; State v. Johnson, 286 S.W.2d 787, 791 (Mo.1956) and State v. Alderman, 498 S.W.2d 69, 72 (Mo.App.1972). The evidence need not specifically show each step in the chain of custody so long as it provides reasonable assurance that the exhibits are undisturbed. State v. Richards, 467 S.W.2d 33, 35 (Mo.1971) and State v. Alderman, supra, at 72.

Here the sole purpose for admitting the victim’s pants and shirt was to identify the man seen by Ms. Davenport as the victim. Ms. Davenport testified that, while they were at the tavern, defendant threatened to “get” a certain man. She testified that that man was wearing a brown shirt and brown pants. She identified the shirt as the one she had seen on the man in the tavern and testified that the pants were similar to those worn by the man in the tavern. She also identified the man from a photograph taken at the morgue. Her identification was adequate for the purpose offered.

Both exhibits were removed from the victim by the doctor who performed the autopsy. Officer Reeder carried the evidence bag containing the clothes from the coroner’s office to the police laboratory where it was kept. Although he did not examine the articles in that bag, he identified the evidence bag containing the pants and the shirt as the bag in which he had placed the clothing. This evidence provides reasonable assurance that these clothes are the same and in the same condition. The trial court did not abuse its discretion in admitting them into evidence.

Judgment affirmed.

WEIER, P. J., and RENDLEN, J., concur.


author: SMITH, Chief Judge. SIMEONE, Judge

text:
    STATE of Missouri ex rel. UNITED STATES FIDELITY & GUARANTY COMPANY and Hoel-Steffen Construction Co., Relators, v. The Honorable Casey WALSH, Judge of the 22nd Judicial Circuit, St. Louis City Circuit Court, Division 7, Respondent.
    No. 37050.
    Missouri Court of Appeals, St. Louis District, En Banc.
    July 6, 1976.
    Motion for Rehearing or to Transfer to Supreme Court Denied Aug. 18, 1976.
    Application to Transfer Denied Sept. 13, 1976.

      Donald L. James, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, Patrick F. McLaughlin, St. Louis, for rela-tors.
    Kenney, Lerity & Reinert, David M. Du-ree, St. Louis, for respondent.
   SMITH, Chief Judge.

This is an original proceeding in mandamus in which the relators, United States Fidelity and Guaranty Company and Hoel-Steffen Construction Company, seek to compel the respondent to sustain relators’ motion to dismiss an action filed in the Circuit Court of the City of St. Louis by Gary & Roger L. Link, Inc. against U.S.F. & G. for the balance due for materials and labor furnished and for damages and attorneys’ fees for vexatious delay under §§ 375.296, RSMo 1969 and 375.420, RSMo 1969 (Supp.1975).

We rendered our divisional opinion on December 23, 1975, in which we quashed our alternative writ. A motion for rehearing was filed by relators, which we granted, and the cause was heard before an expanded panel on April 27,1976. After due deliberation, we now withdraw our divisional opinion and make our alternative writ heretofore issued absolute.

The essential facts are as follows: Prior to June, 1971, M & N Enterprises contracted with Dan Siegel Associates, Inc., to construct a motel in St. Louis County. Dan Siegel entered into a subcontract with Hoel-Steffen. Then, Hoel-Steffen, as principal, and U.S.F. & G., as surety, entered into a “subcontract labor and material bond” by which they bound themselves “jointly and severally” to every claimant who “has not been paid in full” for labor and materials supplied. Thereafter, Hoel-Steffen subcontracted with Link, the claimant, for the performance of certain construction work on the motel. The work was completed, and Link was paid all sums except $5,411.86. Link demanded this amount from Hoel-Steffen.

Then, on September 6, 1972, Hoel-Steffen brought a mechanic’s lien suit against M & N, Dan Siegel, and Siegel’s surety, General Insurance Company, in St. Louis County.

On September 21, 1972, two weeks after Hoel-Steffen brought suit, Link filed an action in the City of St. Louis (the subject of this mandamus proceeding) against U.S.F. & G. only, seeking recovery for the balance due, $5,411.86, for labor and materials, and seeking damages for vexatious delay under the vexatious delay statute.

Five days later, on September 26, 1972, Link filed another action in St. Louis County against Hoel-Steffen, Dan Siegel and M & N (but not U.S.F. & G.), seeking a judgment for the same balance due for work and labor and seeking a mechanic’s lien on the premises of M & N. This petition filed in the county alleged basically the same facts as the suit filed in the city.

The county suits filed by Hoel-Steffen and Link were then consolidated at the behest of Link. But, before trial of these consolidated suits, one Andrew Ruether, an intervenor in the county suit, “brought in” U.S.F. & G. and made a claim against it for compensation for certain modifications of the specifications for the project. In the consolidated suit, Link made no claim against U.S.F. & G. The consolidated suits were eventually tried in the county, and the court rendered judgment on December 17, 1974 (1) in favor of Hoel-Steffen against Dan Siegel and its surety, (2) in favor of Ruether against Hoel-Steffen and U.S.F. & G. and (3) in favor of Link against Hoel-Steffen, but not U.S.F. & G., in the amount of $5,411.86 plus interest — $6,273.42. In the county suit, Link made no claim against U.S.F. & G. for damages for vexatious delay or attorneys’ fees under the statutes. Meanwhile, the city action against U.S.F. & G. was still pending.

After the rendition of the judgments in the county and before trial of the action in the city suit of Link v. U.S.F. & G., U.S.F. & G. moved to dismiss that action, alleging that the prayer in the action in the city and the suit Link filed against Hoel-Steffen in the county were the same except for attorneys’ fees and a penalty for vexatious delay. It alleged that the case filed in the county arose out of the same operative facts, the same breach of contract concerning the same project, and that Link had recovered judgment in the county against Hoel-Steffen, and that since the issue of vexatious delay and attorneys’ fees “could have been raised in St. Louis County, Link should now be estopped” to continue the action in the city, because these issues “might have been litigated” in the county. Hence, the matter is res judicata. U.S.F. & G. concluded that “by the prosecution of this [St. Louis City] lawsuit,” Link is splitting its cause of action.

On April 28, 1975, a check was tendered Link by Hoel-Steffen in the amount of $6,411.43 for the amount of the judgment in the county. Link admits receiving the check, but contends it was accepted in satisfaction of its claim for labor and materials and denies that this was “offered or accepted in satisfaction of the claim” for vexatious delay and attorneys’ fees. Link contends it has a right to proceed with the city suit for the balance due on the construction contract and for damages for vexatious delay and attorneys’ fees, and that the amount of the judgment for labor and materials obtained in the county can be “set off” in the city action.

The respondent refused to sustain U.S.F. & G.’s motion to dismiss, and relators sought mandamus in this court. Art. V, § 4, Mo.Const. We issued our alternative writ.

Relators contend that (1) the judgment entered in the county against Hoel-Steffen, the principal, “precludes and estops” Link from maintaining the city action because the action against the surety for vexatious delay and attorneys’ fees is a single claim and may not be “split” by “taking judgment against a principal only for contract damages and then subsequently attempting to maintain an action against the surety for the same breach . . . [and] the 10% penalty and attorneys’ fees”; (2) satisfaction of the judgment for labor and materials precludes the maintenance of the action for vexatious delay and attorneys’ fees because payment of the debt discharges the surety from liability including liability for vexatious delay and attorneys’ fees; and (3) the term “other insurance” in § 375.420 does not include a suretyship agreement.

Respondent, on the other hand, contends that this action in the city for the debt and vexatious delay was filed first, the issue of vexatious delay has never been litigated, and Link could not have raised the issue, nor was it obligated to do so, in the county suit.

The precise issue, as we perceive it in this proceeding, is whether a claimant under a performance bond can proceed with its action for the balance due on a construction contract, and for damages for vexatious delay and attorneys’ fees, against the surety, U.S.F. & G., only, after the claimant has obtained a judgment against the principal, Hoel-Steffen, and received satisfaction thereof, for the principal debt, but not for damages for vexatious delay. Or, stated differently, may Link proceed in the city against the surety, U.S.F. & G., for vexatious delay and attorneys’ fees after it has recovered judgment against the principal, Hoel-Steffen, for the debt but not for damages for vexatious delay and attorneys’ fees, although the city action was first filed?

We hold that Link is precluded from asserting its action in the city for the balance due on the construction contract and for damages for vexatious delay and attorneys’ fees, since it has recovered judgment on the debt in the county against the principal and this judgment has been satisfied. We therefore make our alternative writ heretofore issued absolute.

There are certain general principles relating to this proceeding. Under the terms of the performance bond entered into between Hoel-Steffen and U.S.F. & G., U.S.F. & G. bound itself “jointly and severally” with the principal, Hoel-Steffen, to the obligee, Dan Siegel, for the use and benefit of the claimants, including Link. Under the performance bond, U.S.F. & G. was subject to an action by Link because under this suretyship agreement, the surety’s obligation is original or primary, unconditional and the same as that of the principal. A contract of suretyship is not a contract of guaranty. A distinction is to be drawn between a surety, which is primarily liable to the obligee, and a guarantor, which is only secondarily liable to the obligee. Since the contract was one of surety and since U.S.F. & G. bound itself “jointly and severally,” U.S.F. & G. was subject to suit because of its obligation. Where the liability on a bond is joint and several, a claimant may bring suit against both the principal and the surety or against either separately. General Insurance Co. of America v. Hercules Construction Co., 385 F.2d 13, 18 (8th Cir. 1967); Gary Realty Co. v. Swinney, 322 Mo. 450, 17 S.W.2d 505, 507 (1929); J. R. Watkins Company v. Love, 383 S.W.2d 149, at 153 (Mo.App.1964); 72 C.J.S. Principal & Surety § 264b, p. 712.

Second, our statutes relating to vexatious delay and attorneys’ fees, §§ 375.296 and 375.420, offer a statutory remedy against an insurer which has vexatiously refused to pay a claim, and this remedy has been held applicable to commercial sureties. Commercial sureties constitute insurers subject to the provisions of § 375.420. Housing-Au thority of the City of Clinton v. Baumann, 512 S.W.2d 436 (Mo.App.1974).

Third, a host of Missouri decisions have regarded our vexatious delay statutes as highly penal in nature, requiring strict construction. Fohn v. Title Ins. Corp. of St. Louis, 529 S.W.2d 1, 5 (Mo. banc 1975); Duckworth v. United States Fidelity & Guaranty Co., 452 S.W.2d 280, 287 (Mo.App.1970); Haase v. Business Men’s Assurance Company, 275 S.W.2d 381, 385 (Mo.App.1955); Hammontree v. Central Mutual Insurance Company, 385 S.W.2d 661, 668 (Mo.App.1965) and cases cited therein.

With these general principles as guidelines, we believe that, having brought an action for the balance due on the debt against the principal, Hoel-Steffen, and having recovered judgment against it in the county and having received satisfaction thereof for the balance due, Link is precluded from proceeding with its action for the same balance due and for damages for vexatious delay against U.S.F. & G., the surety, in the City of St. Louis.

The obligation of the surety under the bond here is to make payment to claimants for all labor and material used in the performance of the subcontract, if the principal does not make such payment. When such payment is made, the obligation of the surety under the bond terminates. It is admitted here that Link has been fully paid for its labor and materials under the subcontract as a result of the judgment against Hoel-Steffen. Whatever may have been the status of Link’s claim against U.S.F. & G. prior to that satisfaction of judgment, when that occurred no amount was due from U.S.F. & G. to Link under the bond.

Two statutes authorize damages for vexatious refusal to pay, i. e.: Sec. 375.296 and 375.420, RSMo 1969. Both provide that the court or jury “in addition” to the amount due under the contract (Sec. 375.296) or the loss (Sec. 375.420) may award vexatious damages and attorneys’ fees. The judgment shall be for the aggregate sum. (Sec. 375.420). Upon satisfaction of the judgment, no amount was due under the contract and there was no loss. There is therefore nothing which vexatious damages and attorneys’ fees can be made an “addition to.” Satisfaction of the judgment against Hoel-Steffen did not simply create a “set-off”; it eliminated the debt or loss to which vexatious damages must be appended. Our statutes authorizing damages for vexatious delay and attorneys’ fees are highly penal and must be strictly construed. If Link were permitted to proceed with that part of the action seeking damages for vexatious delay and attorneys’ fees, and judgment were rendered for that amount, the express wording of the statute would be violated. If Link were permitted to maintain its action in the city for the debt and damages for vexatious delay and the relators allowed a set off, it would be recovering an amount for labor and materials which has already been satisfied.

We have examined the whole of the record, the briefs of the parties and the authorities relied upon, and are convinced that our alternative writ heretofore issued should be made absolute.

The preliminary writ is made absolute.

DOWD, WEIER, CLEMENS and GUNN, JJ., concur.

SIMEONE, J., concurs in separate concurring opinion.

McMILLIAN, J., concurs in results only.

SIMEONE, Judge

(concurring).

I concur in the opinion of Smith, C. J., but add a few comments. At the time of rendering our divisional opinion, which we withdraw this date, I believed that Link could have asserted its claim against Hoel-Steffen in the county and, in a separate proceeding, assert its claim for alleged vexatious delay against U.S.F. & G. in the city, under §§ 375.420 and 375.296 RSMo. But after rebriefing and reargument I believe that this cannot be done. Our vexatious delay statutes are highly penal in nature and must be strictly construed. If Link were permitted to proceed with its city action the express language of these statutes would be violated. Furthermore, if Link were permitted to proceed with its city action on the debt and vexatious delay, after obtaining judgment on the debt in the county, the best interests of orderly judicial procedure would not be served and we would, in my opinion, violate the principles against “splitting” a cause of action.

I, therefore, concur.

      . See discussion in 38 Am.Jur.2d, Guaranty, § 15 (p. 1011): 72 C.J.S. Principal and Surety § 87, p. 567; Cf. Stifel Estate Co. v. Cella, 220 Mo.App. 657, 291 S.W. 515, 518 (1927); J. R. Watkins Company v. Love, 383 S.W.2d 149, 153 (Mo.App.1964).

      . State v. Chicago Bonding & Surety Co., 279 Mo. 535, 215 S.W. 20, 25 (1919); Camdenton Consol. Sch. Dist. No. 6 v. New York Cas. Co., 340 Mo. 1070, 104 S.W.2d 319, 331 (1937); Housing Authority of City of Clinton v. Baumann, 512 S.W.2d 436, 440 (Mo.App.1974). Relators request that we declare these decisions should “no longer be followed.” We need not reach this.

      . Jones v. Prudential Insurance Co. of America, 173 Mo.App. 1, 155 S.W. 1106, 1110 (1913), construed this phrase and concluded that “aggregate sum” “presupposes an award by the jury in parts, as so much on the policy and so much on account of the other grounds therein mentioned.”

      . Smith v. Piper, 423 S.W.2d 22, 27 (Mo.App.1967) [“an award of actual damages is a necessary foundation for punitive damages”]; Landum v. Livingston, 394 S.W.2d 573, 578 (Mo.App.1965) [noting that Jones v. Prudential Ins. Co. of America, 173 Mo.App. 1, 155 S.W. 1106, 1110 (1913) held that the statutory damages for vexatious refusal to pay were not in fact a “penalty” but were “punitive damages”; punitive damages, the court noted, cannot constitute an independent cause of action, but may only be an incident of another cause of action.]

      . Parkell v. Fitzporter, 301 Mo. 217, 256 S.W. 239, 242 (banc 1923) [“There can be but one satisfaction exacted for the same demand.”]; Johnson v. Conrades, 232 S.W. 680, 681 (Mo. banc 1921) [“when a person has a cause of action against two or more parties, he may bring a separate suit against each of them (except on joint obligations) and recover judgment against each, but he can have but one satisfaction, and the payment and satisfaction of any one of the cause of action or judgment rendered thereon satisfies and discharges all the others.”]; Schuchman v. Roberts, 234 Mo.App. 509, 133 S.W.2d 1030, 1035 (1939) [“It is uniformly held that the payment of a judgment by a party primarily liable to pay same extinguishes the judgment.”]; Household Finance Corporation v. Avery, 476 S.W.2d 165, 167-168 (Mo.App.1972) [“it is ordinarily true that when a valid and final personal judgment in an action for the recovery of money is rendered in favor of a plaintiff, plaintiff’s cause of action is merged in the judgment and is extinguished, and further, the voluntary payment of a money judgment by those primarily liable for the debt satisfies and extinguishes the judgment.”]

      . Cf. Bucholz v. Metropolitan Life Ins. Co., 176 Mo.App. 464, 158 S.W. 451, 452 (1913) [“There is no word in the statute suggesting that such recovery is to be taxed as costs in the case, but rather it inheres in the cause of action in addition to the principal sum recoverable . . ” (emphasis supplied).]


author: STEWART, Judge.

text:
    Sigmond C. SEELIG, Respondent, v. Estelle K. SEELIG, Appellant.
    No. 36381.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 13, 1976.

      Ackerman, Schiller & Schwartz, Clayton, for appellant.
    Love & Lacks, Chester A. Love, Jr., George A. Adolf, Clayton, for respondent.
   STEWART, Judge.

Defendant appeals from the judgment of the trial court which modified a decree of divorce relieving plaintiff of all further obligations to pay alimony. We reverse.

After twenty-five years of marriage defendant-wife was granted a decree of divorce from plaintiff-husband on December 6, 1972. The parties settled their property rights by way of stipulation. The court accepted the stipulated recommendation of the parties that defendant have custody of the minor son, Robert, and that plaintiff pay the sum of $150.00 per month to defendant for support of Robert. The parties further stipulated that plaintiff pay to defendant “the sum of $575.00 per month as and for alimony.” The latter stipulation was made part of the decree. By the stipulation defendant was permitted to live in the family home until April of 1974 at which time she could purchase plaintiffs one-half interest or the real estate would be sold and the proceeds divided.

Fourteen months after the decree the plaintiff filed a motion to modify the decree seeking to be relieved of his obligation for alimony and child support. Defendant then filed a motion to modify seeking an increase in maintenance, child support and attorney’s fees.

The court made findings of fact and entered its decree in which it denied defendant’s motion to modify in all respects and denied plaintiff’s motion to modify as to child support. The court granted plaintiff’s motion to terminate his obligation to pay alimony. The court further denied defendant’s request for an allowance for attorney fees.

Neither party takes issue with the court’s refusal to modify the judgment as to the support for the minor son, Robert.

This case was one of the first cases to come before the trial court after the Dissolution of Marriage Act Sections 452.300 to 452.415 became effective and the trial court in entering its decree frankly expressed its concern with respect to the interpretation which would be accorded the new act.

The statute, with respect to modification, unlike its predecessor, codifies the standards to be considered in modification.

That portion of Section 452.370 which governs the modification of decrees of dissolution, which is pertinent to our consideration of this case reads:

“. . . the provisions of any decree respecting maintenance or support may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.”

An original judgment is res judi-cata as to the facts and conditions bearing upon the award and existing at the time of its rendition, as shown by the evidence. The burden of showing a change of circumstances “so substantial and continuing as to make the terms unreasonable” is upon the party seeking modification of the decree. Dodds v. Dodds, 353 S.W.2d 810 (Mo.App.1962).

We begin our review with these basic guides. Our review is that accorded cases of an equitable nature. We defer to the trial court’s vantage with respect to the credibility of the witnesses. Rule 73.01. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

The court found that plaintiff had a net worth of $41,619.97 at the time of the hearing on the motion. No finding was made with respect to plaintiff’s net worth as of the entry of the divorce decree. The court found that defendant had a net worth of $171,373.00 as of the date the motion was heard; that $65,900.00 of that amount had been received by defendant since the decree of divorce; this consisted of $3,000.00 executrix fee and $62,900.00 inheritance from her father’s estate. The court found this to constitute “a substantial change in circumstances.” No finding was made as to defendant’s net worth at the time of the decree.

The court further found that plaintiff’s income for periods pertinent to the case to be: 1971 — $32,748.15; 1972 — $60,041.81; 1973 — $26,142.86; and for the first six months of 1974 — $9,273.00. The court found that plaintiff’s income had declined from the date of the decree and that the decline in income constituted “a substantial change in circumstances, from the income [plaintiff] had at the time of the divorce.”

The court concluded that the “total net worth of [defendant] plus the income . from her various corporations indicates that she must support herself and that there is no obligation on the part of petitioner to pay maintenance to [defendant].”

Before we can consider the question of the extent, if any, of maintenance due either spouse upon a motion to modify, we must consider the question of whether there has been a substantial and continuing change in circumstances which would render the terms of the original decree unreasonable.

We consider first the finding that there had been a substantial change in circumstance resulting from funds received by defendant since the date of the decree. Of the $65,900.00 attributed to the increase in net worth $3,000.00 was income from services rendered as co-executrix of her father’s estate. The value of the stock of the closely held family corporation ($11,400.00) were based upon the inheritance tax appraisal file of the probate court. At most this would reflect the value of the stock as of April 20, 1969. Plaintiff produced no evidence of the present value of the stock. This is of no significance in view of the conclusion which we reach.

The source of the funds received after the divorce is the estate of defendant’s father, H. E. Krisman. Mrs. Seelig’s father died on April 20, 1969, approximately three and one-half years before defendant obtained her divorce from plaintiff. Letters testamentary were issued May 22, 1969. Mrs. Seelig was co-executrix of the estate.

Title to the inherited properties passed to defendant upon the death of her father subject to the possession of the executors during the period of administration. The property was chargeable with expenses of administration and other claims § 473.-260. Defendant had title to the inheritance prior to the date of the decree of divorce. Although the exact amount had not been determined the time for filing claims had passed and a reasonable expectation could be readily determined. The only testimony which was admitted with respect to this subject came from defendant. She testified that the amount which she received was less than she had anticipated. The only evidence presented by plaintiff with respect to this issue was that defendant received the distribution above described after the decree of divorce had been granted. Title to the inheritance had passed to defendant and was a part of her net worth prior to and at the time the parties were divorced. The plaintiff failed to carry his burden of showing that the physical receipt of defendant’s inheritance constituted a substantial change in circumstances.

The other element of substantial change found by the court was a decline in plaintiff’s income. In view of the fact that the amount of alimony was reached by agreement as set forth in the stipulation we have no evidence of record as to be basis upon which this figure was determined. The stipulation is silent with respect to the representation of the parties as to their income and as to their reasonable needs.

The divorce was granted on December 6, 1972. Plaintiff’s total income for the year 1972 was $60,041.81. Of this amount $17,-017.81 consisted of extraordinary or non-recurring income. Plaintiff had capital gains upon the sale of assets and received his share of the profit-sharing plan of his former employer. The income from his employment as a stockbroker on commissions was $43,034.00. The record is devoid of any evidence indicating that the final figures on plaintiff’s income were available at the time the stipulation setting the amount of alimony was entered into. The plaintiff’s income from commissions in the full year preceding the divorce, 1971, was $32,195.15. His total income for 1971 was $32,738.15.

As plaintiff testified, the year following the divorce was a bad year for the stock market. Plaintiff’s income followed the fortunes of the market in that year just as it had followed the good fortune of the market in the year before. In 1973 plaintiff’s income from commissions dropped to $25,977.86. His total income for that year was $26,142.86. Plaintiff’s income from commissions for the first six months of 1974 was $9,273.77 with other income a total of $9,594.77.

The question before us is whether there was a change in circumstance by reason of the diminished income that was so substantial and continuing as to render the continued payment of alimony unreasonable. As the Commissioner’s note to Section 316 of the Uniform Marriage and Divorce Act comments, “this strict standard [for modification] is intended to discourage repeated or insubstantial motions for modification.”

There was a considerable loss of income shown especially for the first six months of 1974. There is, however, no showing that the needs of the defendant have been diminished. There is no evidence as to what those needs were at the time of the original decree. When called as a witness by plaintiff she testified that for the year 1973 she had income, exclusive of alimony of $8,327.00; of this $1,200.00 was the balance of executrix fees which would be non-recurring. Thus her income was $7,127.00. There is a paucity of evidence respecting defendant’s income at the time of the divorce. The only reference to defendant’s income at that time was a comparison between two specific items. She now receives $500.00 per year more from H. E. Krisman Stores, the family corporation, than she did at the time of the divorce. She received $6.00 per year more in taxable dividends.

Defendant, who was 47 years of age, testified that she suffered from hypoglycemia, high blood pressure, irregular heart beat and chest pains and that she had been advised by her physician not to seek outside employment. She listed her expenses at $1,046.00 per month for herself and $455.00 per month for her son. Plaintiff listed his expenses at $655.00 per month, exclusive of alimony and support payments.

It has been said that reduction in income of the spouse who is under the obligation to make payments of alimony or support is a proper factor to be considered, but that factor alone does not necessarily require a modification, particularly where there has been no substantial changes in the needs of the other spouse. Conversely it has been held an increase in the wealth and earning capacity of the spouse under the obligation to make payments does not justify an increase in such payments. Markham v. Markham, 506 S.W.2d 84 (Mo.App.1974). See also Lane v. Lane, 439 S.W.2d 550 (Mo.App.1969).

In this case plaintiff’s evidence as to his commission income was that he had received $6,130.21 for the first five months of 1974 and $9,273.77 for the first six months. On this basis he averaged approximately $1,225.00 per month for the first five months and an increase to $3,143.56 for the sixth month. This would indicate some improvement in plaintiff’s earnings. The evidence on behalf of plaintiff also reveals that early 1974 was a period of transition for plaintiff. His employer was taken over by another brokerage firm.

The income of plaintiff in the month of June should not be considered any more of a criteria of his capacity to pay than the income of the first five months of 1974. Nor can we say that his income for 1972 was or should have been used on the basis for the judgment for alimony or of the change in income at this time. Both plaintiff’s past and present earnings constitute evidence of his capacity to pay. Page v. Page, 516 S.W.2d 537 (Mo.App.1974). We can not say that the decrease in earnings in 1973 and the first five months of 1974 partake of the character of continuing change contemplated by the statute.

We feel that the legislature in enacting § 452.370 intended to require a stricter standard for modification of a decree of dissolution than was formerly required. The court in this case made a finding that plaintiff’s reduced earning constituted “a substantial change in circumstances.” The court did not find that the change was “so substantial and continuing as to make the terms [of the decree] unreasonable.” From plaintiff’s own evidence it would appear that he can meet his own needs while meeting the needs of the defendant and that the terms of the original degree are not unreasonable.

Plaintiff urges that we use the criteria of § 452.335, section 1, to determine whether defendant is entitled to maintenance. This portion of the statute provides that maintenance can be awarded only if the court finds that the spouse seeking maintenance “(1) [l]acks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (2) [i]s unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.” Both these situations must be present to grant maintenance under this statute. This point was determined by the parties when they entered into the stipulation, and when entered into the decree it became res judicata. Until the moving party carries the burden imposed by § 452.370 the original decree may not be disturbed.

There is no substantial evidence in this case from which it can be said that plaintiff has carried the burden imposed upon him. Butler v. Butler, 483 S.W.2d 677 (Mo.App.1972). There was no basis for modification of the decree with respect to alimony.

The trial court denied defendant’s request for an allowance for attorney’s fees. The applicable statute § 452.355, entitles a party to reasonable amounts of attorney’s fees considering the relative financial condition of both parties. Such an award is in the discretion of the trial court and we review only for abuse of discretion. Specking v. Specking, 528 S.W.2d 448, 452[9] (Mo.App.1975). Under the evidence we find no abuse of discretion in the trial court’s failure to award defendant attorney’s fees.

The judgment is reversed so far as it terminates plaintiff’s obligation to pay alimony. In all other respects the judgment is affirmed. Costs to be taxed to plaintiff.

CLEMENS, P. J., and KELLY, J., concur.

      . § 452.070 R.S.Mo.1969 Alimony and maintenance
      “. . The Court, on the application of either party, may make such alteration, from time to time, as to the allowance of alimony and maintenance, as may be proper . . . ”

      . Plaintiff invoked the husband-wife privilege when defendant sought to testify concerning plaintiff’s knowledge of the existence and the nature and extent of the estate.

      . In plaintiff’s testimony he gave the following breakdown for the first five months: $1,133.25; $2,229.29; $283.44; $937.84; $937.87. Using these figures his income for June would be $3,752.08.


author: GUNN, Judge.

text:
    William Roscoe WHITE, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.
    No. 37055.
    Missouri Court of Appeals, St. Louis District, Division Three.
    July 13, 1976.
    Motion for Rehearing or Transfer Denied Aug. 18, 1976.

      John M. Rueseler, Cape Girardeau, for plaintiff-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Kenneth W. Shrum, Pros. Atty., Bollinger County, Marble Hill, for defendant-respondent.
   GUNN, Judge.

On this Rule 27.26 appeal, the movant-ap-pellant, William Roscoe White, charges that the trial court erred in finding that his waiver of appeal for a first degree murder conviction and plea of guilty for armed robbery were knowingly and voluntarily waived.

In a Rule 27.26 hearing the determinations of the trial court are presumably correct and will be sustained unless clearly erroneous. Williams v. State, 530 S.W.2d 740 (Mo.App.1975); White v. State, 530 S.W.2d 444 (Mo.App.1975). “Clearly erroneous as that term is used in Rule 27.26(j), V.A.M.R., means that although there was evidence to support the trial court’s finding, the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed.” Armstrong v. State, 534 S.W.2d 547, 548 (Mo.App.1976). Movant importunes us to ruminate on the facts and read the entire record. We have tractably responded to movant’s plea. But after punctilious review of the record, we find that the trial court made no mistake in finding that movant’s plea of guilty and waiver of appeal were knowingly and voluntarily made; no basis exists for setting aside the trial court’s findings.

Movant dwells on the argument that his plea of guilty to the robbery charge was made to obtain a concurrent sentence with the murder conviction and to avoid consecutive sentences. Such argument does not afford grounds for 27.26 relief, as expectation of a lighter sentence does not render a plea involuntary. Abrams v. State, 521 S.W.2d 177 (Mo.App.1975).

The record on appeal fully supports the trial court’s findings that movant’s waiver of appeal to the murder conviction and plea of guilty to the robbery charge were knowingly and voluntarily made, without coercion and with knowledge of the consequences. Further recitation of the proceedings relating to the appeal waiver and guilty plea issues would be of benefit to no one. Borman v. State, 528 S.W.2d 502 (Mo.App.1975); Parsons v. State, 528 S.W.2d 162 (Mo.App.1975); Waggoner v. State, 517 S.W.2d 189 (Mo.App.1974); Cox v. State, 515 S.W.2d 199 (Mo.App.1974); Griffin v. State, 513 S.W.2d 706 (Mo.App.1974). We do note, however, that the trial judges accepting movant’s plea of guilt to the robbery charge, waiver of appeal to the murder conviction and hearing the 27.26 motion exercised nonpareil patience in their conduct of the proceedings, were thorough in their explanations and granted movant and his counsel grand latitude in their participation.

Movant also challenges the sufficiency of the evidence as to defendant’s guilt. This is a matter which was not presented in the 27.26 motion and was raised for the first time on appeal. We cannot, therefore, consider this issue which was not before the trial court. Garrett v. State, 528 S.W.2d 174 (Mo.App.1975). Further, a 27.26 motion is not to be used as a surrogate for a second appeal or challenge to the sufficiency of the evidence. McCrary v. State, 529 S.W.2d 467 (Mo.App.1975).

No error appearing, we affirm the trial court’s action denying movant’s 27.26 motion for relief.

SIMEONE, P. J., and KELLY, J., concur.

      . A different trial judge conducted the Rule 27.26 hearing than had accepted movánt’s guilty plea and waiver of appeal.


author: WEIER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Joseph PARHM, Defendant-Appellant.
    No. 37383.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 20, 1976.
    Motion for Rehearing or Transfer Denied Aug. 18, 1976.
    William Shaw, Public Defender, David M. Adams, Asst. Public Defender, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Christopher, R. Brewster, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Ann Frances Carpini, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant was convicted of burglary in the second degree and stealing. Under the Second Offender Act, the court fixed pun--ishment at eight years for the burglary and two years for stealing which were ordered to run consecutively.

Defendant first contends that it was error for the trial court to fail to instruct the jury that they could consider whether the defendant was guilty of stealing over $50.00 for the reason that the evidence supported an instruction on such charge. Defendant was charged with burglary and stealing under § 560.110, RSMo 1969. He was not charged with the independent crime of stealing. When a defendant is charged with the crime of stealing in conjunction with burglary, a finding that the defendant is guilty of burglary is a condition precedent to any finding that the defendant is guilty of stealing. State v. Auger, 434 S.W.2d 1, 5[4] (Mo.1968). In such circumstances, the act of stealing is a dependent offense. State v. Cline, 447 S.W.2d 538, 541[1] (Mo. banc 1969). Where one is charged with burglary and stealing under an information or indictment pursuant to § 560.110, supra, the court may not properly acquit the defendant of burglary and convict him of stealing. State v. Staten, 478 S.W.2d 265 (Mo.1972); State v. Smith, 462 S.W.2d 425, 426[2] (Mo.1970).

Defendant further contends that it was error for the trial court to sustain the state’s objection to that portion of the defendant’s final argument in which he alluded to the absence of fingerprint evidence. He contends that this was proper final argument and a suitable matter for the jury’s consideration. That same contention was made in State v. Terry, 472 S.W.2d 426, 430[8] (Mo. banc 1971). The court there held that a defendant could not in argument draw an unfavorable inference from the state’s failure to take fingerprints from articles touched by him because it is not incumbent on the state to take fingerprints.

Finding no error, the judgment is affirmed.

McMILLIAN and RENDLEN, JJ., concur.


author: SMITH, Chief Judge.

text:
    Robert COALE, d/b/a Robert Coale Const. Co., Plaintiff-Respondent, v. Rolla RICKARD et al., Defendants-Appellants.
    No. 36635.
    Missouri Court of Appeals, St. Louis District, Division Four.
    July 20, 1976.

      Mcllrath, Black & Williams, Gary R. Black, Sr., Flat River, for defendants-appellants.
    Charles G. Hyler, Farmington, for plaintiff-respondent.
   SMITH, Chief Judge.

Defendants appeal from a judgment of $1353.95 plus interest against them in a court-tried contract case. The judgment also found in favor of plaintiff on defendants’ counterclaim.

The suit arose from a written contract by which plaintiff agreed to “erect, build, finish and complete in a good sound workmanlike manner in accordance with proposal with” defendants an addition to defendants’ home. The contract was for a total price of $9644.00 payable “40% when roof is on; 40% when drywall and painted; 20% on completion.” The first two installments were paid. The balance due, after several adjustments was $1353.95.

Defendants contended that the work called for in the contract was not completed, and that it was done in an unworkman-like manner contrary to the express terms of the written contract. The counterclaim was based upon the cost to defendants of remedying plaintiff’s failures under the contract.

We deal initially with plaintiff’s motion to dismiss the appeal. He first contends that defendants’ motion for new trial did not adequately preserve anything for review. As we stated in South Side Plumbing v. Tigges, 525 S.W.2d 583 (Mo.App.1975) [1]:

“As a motion for new trial need not be made at all, [in a court-tried case] the filing of one which is imperfect should not prejudice the appellant’s position on appeal.”

Plaintiff also requests dismissal because of alleged inadequacies in defendants’ statement of facts in their brief. While the statement is not a model, it is not sufficiently deficient to warrant dismissal. The motion to dismiss is denied.

We need not deal at length with the many claimed inadequacies in plaintiff’s performance. The burden is upon plaintiff to show that he completed the contract as written. Modern Heating Co. v. Florida Land & Fruit Co., 228 S.W. 1079 (Mo.App.1921); Brush v. Miller, 208 S.W.2d 816 (Mo.App.1948). The proposal attached to the contract calls for: “½ drywall in new addition-plastered and painted.” Plaintiff admitted the ½ inch drywall was not plastered. The following question and answer then appears:

“Q. All right. So according to this proposal we haven’t completed the contract in accordance with the terms as of this date, have we?
A. Right.”

There was considerable additional testimony by plaintiff indicating his lack of knowledge whether all of the work called for in the contract had in fact been completed, but review of that evidence is unnecessary in view of his clear admission set forth above. His cause of action was based solely on his contract and his right to recover the balance under that contract was dependent upon his completion of the contract. Because, by his own admission he has not completed the contract, and has not sought recovery upon any theory of prevention or frustration, he has failed to establish his right to recovery.

Defendants’ evidence dealt with a series of alleged failures in plaintiff’s performance. Some of these were not matters covered by the contract, some were matters corrected before the work was completed, and some were not clearly shown to be failures or unworkmanlike. No effort was made to establish the cost of repair or replacement of each of the alleged failures separately. The only evidence of damages was the testimony of an expert that based on “defects” he observed that “it’d run between three and $4000.”

Under our appellate review in a court-tried case, (See Rule 73.01 and Murphy v. Carron, 536 S.W.2d 30 (Mo.1976)) we cannot conclude that the judgment of the trial court on the counterclaim was against the weight of the evidence, nor do we have a firm belief that judgment is wrong.

Judgment for plaintiff on his petition reversed, judgment for plaintiff on defendants’ counterclaim affirmed.

ALDEN A. STOCKARD and NORWIN D. HOUSER, Special Judges, concur.


text:
    Paul BRAUCH, Appellant, v. William F. MELICK, M.D., Respondent.
    Nos. 36580, 36581.
    Missouri Court of Appeals, St. Louis District, Division Four.
    July 20, 1976.
    James F. Koester, St. Louis, for appellant.
    Anderson, Gilbert, Wolfort, Allen & Bier-man, Robert G. Burridge, Stuart M. Haw, Jr., St. Louis, for respondent.
   SMITH, Chief Judge.

Defendant Melick appeals from the action of the trial court in denying his motion for directed verdict following a jury verdict in favor of plaintiff Brauch. While the trial court denied the motion for directed verdict, it did grant the defendant’s motion for new trial.

We are confronted initially with plaintiff’s motion to dismiss the appeal. Some additional statement of the posture of this case is required. Following the action of the trial court, defendant filed his notice of appeal. Plaintiff then filed his notice of appeal challenging the action of the trial court in granting a new trial. The appeals were consolidated for hearing by this Court on its own motion.

Defendant filed a transcript in his appeal, prior to the order of consolidation. Plaintiff filed no transcript, did not request the defendant’s transcript be treated as a transcript in plaintiff’s appeal, and did not file any brief in either case. Defendant filed a “Statement, Brief and Argument of Appellant” in his appeal.

As can be seen, plaintiff has done nothing in his appeal except file a notice of appeal. In that posture the appeal has not been perfected and should be dismissed. Williams v. Ellis, 323 S.W.2d 238[1] (Mo.1959); City of Kirkwood v. Missouri State Board of Mediation, 478 S.W.2d 690[15] (Mo.App.1972).

It is also clear that the denial of defendant’s motion for directed verdict is not an appealable order since the trial court granted the motion for new trial. Bailey v. Interstate Airmotive, 358 Mo. 1121, 219 S.W.2d 333[1] (1949); Gier v. Clark, 300 S.W.2d 519 (Mo.1957). Such an appeal must be dismissed. It is true, as defendant contends that the courts have stated such a dismissal is more “academic than real.” See Schmittzehe v. City of Cape Girardeau, 327 S.W.2d 918[1] (Mo.1959). This is normally true because the submissibility of plaintiff’s case may be considered on plaintiff’s appeal. Here, however, the matter is not academic. Plaintiff’s appeal must be dismissed because it has not been perfected and defendant’s appeal cannot stand because it is taken from a non-appealable order.

Appeals dismissed.

ALDEN A. STOCKARD and NORWIN D. HOUSER, Special Judges, concur.


author: SWOFFORD, Judge.

text:
    Adam GERLACH, Appellant, v. James R. SPRADLING, Respondent.
    No. KCD 27717.
    Missouri Court of Appeals, Kansas City District.
    Aug. 2, 1976.
    Motion for Rehearing and/or Transfer Denied Aug. 30, 1976.

      Larry 0. Denny, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Clarence Thomas, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

Following an automobile collision wherein the appellant drove his vehicle into the rear of a parked car at 8:00 o’clock p. m. on March 3,1974, the investigating police officer noticed a strong odor of alcohol on appellant and that he was staggering. Appellant admitted that he had been drinking that afternoon and he was placed under arrest and thereupon taken to the hospital for repair of a cut lip.

The arresting officer testified that on two occasions at the scene, and three times at the hospital, he explained the so-called implied consent law and requested the appellant to submit to a Breathalyzer test, and that the appellant refused, which facts are undisputed by the appellant.

Thereafter, the arresting officer made a sworn report to the Director of Revenue (respondent) as provided by Section 564.-444(1) RSMo 1969, and the respondent entered an order revoking appellant’s driving license for a period of one year. Upon review of this order in the Magistrate Court and in the Circuit Court, the action of respondent was affirmed. This appeal followed.

Appellant’s sole point is that “due process of law requires” that before the State of Missouri revokes a person’s driving privileges for refusal to submit to a Breathalyzer test, the person arrested must be clearly and unequivocally told that such refusal will automatically result in a revocation. Stated differently, appellant asserts that a warning that such refusal to take the test “may”, “might”, or “could” result in a revocation of license, does not satisfy the requirements of constitutional due process.

There is no substantial or significant conflict in this record that the arresting officer warned appellant only that his refusal to take the test “can”, “might” or “may” result in the loss of his driving privileges and that appellant was not told that he “could definitely lose” his license upon such refusal.

The appellant’s position is without merit. The statute in terms, and the deci-sional law in this state, are clear that the mandate of Section 564.444 RSMo 1969 requires only that the arresting officer clearly advise the arrestee of “the possibility of license revocation”. Bolling v. Schaffner, 488 S.W.2d 212, 215[3, 4] (Mo.App.1972); State v. Hanson, 493 S.W.2d 8, 12[9] (Mo.App.1973); Jones v. Schaffner, 509 S.W.2d 72, 80[9] (Mo.1974).

To bolster his argument, the appellant strongly asserts (in the face of the clear and unequivocal language of the statute) that, once the arrestee refuses to submit to a Breathalyzer test, the arresting officer is mandatorily required to file the sworn report with the director of revenue and is left no option for the exercise of discretion. This argument is unacceptable.

The statute provides that upon such refusal to submit to the test, Section 564.-444(1), RSMo 1969:

“ * * * In this event, the arresting officer, if he so believes, shall make a sworn report to the director of revenue that he has reasonable grounds to believe that the arrested person was driving a motor vehicle upon the public highways of this state while in an intoxicated condition and that, on his request, refused to submit to the test. * * * ” (Emphasis supplied)

That there is an area under this statute between the arrest, warning and refusal, for the exercise of the arresting officer’s discretion, has been recognized in the case of Jones v. Schaffner, 509 S.W.2d 72, 80[9] (Mo.1974), where the court stated:

“ * * * the refusal of a motorist to submit to a chemical test upon request of the arresting officer does not amount to an automatic loss of license. Revocation occurs only if the arresting officer believes the motorist was driving while in an intoxicated condition, that upon his request the motorist refused to submit to a test, and the officer subsequently so swears in a report filed with the Director. At the time of arrest and warning, the officer is not under compulsion to file the statement. * * * ”

This same interpretation of the statute was adopted by the Springfield District of this court in the case of In re Green, 511 S.W.2d 129, 132-133[4] (Mo.App.1974).

The conclusion is inevitable that the explanation and warning here shown met the constitutional requirements of due process.

The judgment is affirmed.

All concur.


author: TURNAGE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Darrell RANDALL, Appellant.
    No. KCD 27897.
    Missouri Court of Appeals, Kansas City District.
    Aug. 2, 1976.
    Motion for Rehearing and/or Transfer Denied Aug. 30, 1976.
    Application to Transfer Denied Oct. 12, 1976.

      Thomas M. Larson, Pub. Defender, Lee M. Nation, Kansas City, for appellant.
    John M. Danforth, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and ROBERT R. WELBORN and ANDREW J. HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Darrell Randall was convicted following a jury trial of possession of marihuana in one count, possession of hashish in another count, and possession of LSD in a third count. Sentence was imposed at four years confinement on the marihuana count, five years on the hashish count, and fifteen years on the LSD count, with all sentences to run concurrently.

On this appeal, Randall alleges (1) the Legislature has not designated the possession of hashish as being a crime separate from the crime of possession of marihuana and this count should be reversed, (2) an unlawful search and seizure at the time the drugs were found and seized by police officers, (3) Chapter 195, relating to drug offenses constitutes an unconstitutional delegation of legislative authority to the Division of Health, and (4) Chapter 195 is unconstitutional as applied to Randall in that it denied to him his First Amendment right to freedom of religion. This court finds the possession of hashish is not a separate crime from the possession of marihuana and reverses the conviction as to the possession of hashish but affirms the other two counts.

Randall lived in a two-story building. The building consisted of two-stories with a third story referred to as an attic. A stairway on the outside of the building led to a doorway leading onto the second story, and entrance to the third floor was obtained through a doorway located on the second floor. He stated he slept on the first floor and a Mrs. Stratton lived on the second floor. However, Randall told a police officer the entire dwelling was controlled by a church and he was the minister. A police officer working under cover testified he had visited the building prior to the date Randall was arrested and Randall showed him through the second floor and unlocked a padlock on the door leading to the third floor. The officer further testified there was no indication in the building that it was separated into multiple living units.

On the date Randall was arrested, police officers went to the building and mounted the outside stairway to the second floor. When Mrs. Stratton opened the door they informed her they had a search warrant and immediately entered the second floor and proceeded to the third floor where the undercover officer had been shown a large quantity of drugs by Randall, together with laboratory equipment apparently used in refining various drugs. Randall was arrested after the officers had gone to the third floor and discovered the drugs.

Randall was charged in five counts with possession of drugs, however, the jury returned a verdict of not guilty on two counts, leaving the three counts previously described on which he was found guilty.

Randall urges his conviction in a separate count of possession of hashish cannot stand because hashish is actually marihuana and a separate violation has not been proscribed for the possession of hashish.

Section 195.010, RSMo 1969, as amended in 1971, defines marihuana as “all parts of the plant Cannabis Sativa L., whether growing or not, the seeds thereof, the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin.”

The State produced Gary Ray Howell, the chief forensic chemist of the Regional Crime Laboratory. Mr. Howell stated hashish is defined as an extraction of the active ingredients of marihuana. He stated “so the absence of plant material plus the presence of the extractable tetrahydrocan-nabinol and other eannabinoids would be hashish.” At another point Mr. Howell stated he distinguished between marihuana and hashish mostly by physical appearance. He stated “if it is not a green leafy material and shows to be an extraction under the microscope, it is hashish.” Mr. Howell further stated hashish would be the result if the plant material were destroyed and then pressed into a fine block which would result in a pressed block of material high in concentration of tetrahydrocannabinol “THC”. Mr. Howell also referred to hashish as a refined form of marihuana.

The other chemist produced by the State, Edward Covey, stated hashish is a form of marihuana.

By Chapter 195, Missouri has adopted the Uniform Controlled Substances Act with the exception of Section 195.200, the penalty section: This section is not a part of the Uniform Act. In Section 195.200 is found the only reference to hashish in Chapter 195. In that section a specific penalty is imposed for possession of hashish, depending upon the quantity.

The schedules in Section 195.017 listing proscribed narcotics or drugs lists marihuana and tetrahydrocannabinols. In none of these schedules is hashish listed.

The State argues that since the Legislature has prescribed a penalty for the possession of marihuana and possession of hashish, they must be considered as separate crimes. This question apparently has not been raised in Missouri. However, a similar question was decided in State ex rel Hubbard v. Spillers, 202 S.E.2d 180 (W.Va.1974). In that case the court quoted the West Virginia statute which is the Uniform Controlled Substances Act and contains the same listing of marihuana and THC with the same definition of marihuana as is contained in the Uniform Act as adopted in Missouri. The court in that case concluded that “hashish is either a ‘material, compound, mixture, or preparation of marihuana.’ ” 202 S.E.2d 182[1]. The court concluded that hashish is a Schedule I controlled substance but that the indictment charging only possession of hashish was void for failure to include allegations showing hashish to be a form of marihuana which would constitute a controlled substance. The court held the possession of hashish was not a separate and distinct crime apart from the possession of marihuana since it found hashish to be marihuana.

A further difficulty with the State’s position is the fact the Legislature has not defined hashish nor has it declared the possession of hashish to be a violation of the law. It was stated in State v. Reid, 125 Mo. 43, 28 S.W. 172, 173 (1894): “It is the duty of the legislature, and not the courts, to define a crime, and ordain its punishment.” See also 22 C.J.S. Criminal Law, ¶ 17.

The definition of marihuana, as contained in Section 195.010, includes the resin extracted from any part of the plant Cannabis Sativa L., as well as every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin. It is clear the definition given by the chemist in this case would include hashish within the definition of marihuana. However, the Legislature has not proscribed the possession of hashish separate and apart from the possession of marihuana. To constitute a crime, the act must be both proscribed by the Legislature and a penalty imposed. Here a penalty was imposed but the possession of hashish was not proscribed. Since hashish, according to the testimony in this case, falls within the definition of marihuana, a separate crime has not been defined for the possession of hashish. Therefore, the possession of hashish, being marihuana, would constitute only the crime of possession of marihuana. In this case Randall was found to be in possession of 21,475.5 grams of marihuana and 1,274.7 of hashish. Considering the hashish to be marihuana, the penalty for the possession of marihuana could not be affected by adding the amount of hashish to the amount of marihuana in Randall’s possession.

Since hashish is included in the definition of marihuana, there is no separate crime for the possession of hashish, and the conviction on Count 2 for possession of hashish is reversed.

Randall next contends the search warrant under which police went to the building and found the marihuana was invalid because the warrant simply described the building located at 3339 Gilham when in fact the building was divided into separate living units. Randall relies on State v. Barrelli, 317 Mo. 461, 296 S.W. 413 (1927).

Barrelli did hold a search warrant invalid which described an entire building when in fact the building was occupied by different persons and only the premises occupied by one person were intended to be searched. However, a recognized exception to this rule exists when the multi-unit character of the premises is not externally apparent and is not known to the officers executing the warrant. State v. Aiello, 91 N.J.Super. 457, 221 A.2d 40 (1966). See also State v. Chisholm, 7 Wash.App. 279, 499 P.2d 81 (1972) and 11 A.L.R.3d 1330.

Randall filed a motion to suppress the use in evidence of any items seized during the search under the warrant on the same grounds alleged here. The court held a pre-trial hearing at which various police officers testified there was nothing about the appearance of the building to indicate it was a multi-unit building or that separate parts of the building were occupied by different people. They stated there was only one street number on the building and there were no identifying numbers or letters on any of the entrance doors. One of the officers testified Randall told him the “dwelling” was the property of the Aquari-an Brotherhood Church and Randall was the minister. He further quoted Randall as saying all of the items found, including the contraband, was the responsibility of Randall. The officer further stated Randall made this statement while he was on the second floor of the building. It was the second floor which Randall contended was occupied solely by Mrs. Stratton, the acknowledged secretary-treasurer of the Aquarian Church. This occupancy by Mrs. Stratton gives rise to Randall’s claim of the evidence of a multi-unit building.

After hearing the evidence adduced by Randall concerning Mrs. Stratton’s separate occupancy of the second floor and the testimony of the police officers, the court overruled the motion to suppress. On that motion the burden of proof was on Randall. The conflict in the testimony involving the credibility of the witnesses was resolved in favor of the State by the trial court. Since there was substantial evidence to support the trial court’s action, this ruling will not be disturbed. State v. Gailes, 428 S.W.2d 555 (Mo.1968).

The court found there was no multi-unit use of the building. Under the rule allowing the warrant to describe the entire building if the multi-unit use is not apparent or known, the warrant here was proper. It can also be sustained on the ground Randall failed to prove a multi-unit use.

Randall next complains Chapter 195 is unconstitutional because of an impermissible delegation of authority to the Division of Health to add drugs to the schedules listed by the Legislature in such Chapter. Randall was convicted for possession of marihuana and LSD which are contained in the schedules adopted by the Legislature. He was not convicted for violating any action taken by the Division of Health. For this reason, Randall has no standing to raise a question concerning the constitutionality of this Chapter on this ground because his rights are not adversely affected by the feature of the statute about which he complains. State v. Brown, 502 S.W.2d 295 (Mo.1973). However, it may be observed the question raised was resolved in State v. Bridges, 398 S.W.2d 1 (Mo. banc 1966) adverse to Randall.

Randall lastly contends the charges against him should have been dismissed because the application of Chapter 195 prohibiting the possession of certain drugs is unconstitutional as applied to him because it denies him the right of freedom of religion. As mentioned, Randall testified he is the “Done” and a minister of the Aquarian Brotherhood Church. Some of the boxes containing hashish and marihuana were labeled as being sacraments of the church. However, Randall testified the Church did not administer any sacraments and if anyone wanted to use marihuana or LSD, he was required to furnish his own.

According to Randall, the use of drugs in his church was for the purpose of enabling people to meditate and to better understand themselves and their problems. From this he seeks to invoke the doctrine adopted in People v. Woody, 61 Cal.2d 716, 40 Cal.Rptr. 69, 394 P.2d 813 (1964). In Woody the court was dealing with a religious faith in peyote as an object of worship by certain American Indians. The court certainly did not give any blanket approval to the use of drugs under the guise of some religious belief. On the contrary in a factual setting almost identical to this case, the court in People v. Collins, 273 Cal.App.2d 486, 78 Cal.Rptr. 151 (1969) held the employment of drugs as an auxiliary to a desired capacity for communication is not a religious purpose within Woody.

While the State does not have the power to dictate or control a religious belief, it does have the power to control actions. As stated in State ex rel Swann v. Pack, 527 S.W.2d 99 (Tenn.1975), “[f]ree exercise of religion does not include the right to violate statutory law.”

It was further stated in Davis v. Beason, 133 U.S. 333, 342,10 S.Ct. 299, 300, 33 L.Ed. 637 (1890), “[i]t was never intended or supposed that the (first) amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society.” See also 35 A.L.R.3d 939.

The use of peyote was approved on a very narrow and specific ground. As held in Collins a supposed desire to heighten awareness or to enable one to have new dimensions opened is hardly a religious purpose. Randall has not shown in any manner that he could bring himself within the tightly drawn confines of the religious exemption for a violation of the law of this state. This point is denied.

The judgment on Count 2 for possession of hashish is reversed. The judgment on Count 1 for possession of marihuana, and on Count 5 for possession of LSD is affirmed.

All concur.