text:
    STATE of Missouri, Respondent, v. Delbert Leroy OLDHAM, Appellant.
    No. KCD 28406.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.

      James R. Bickel, Nevada, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   WASSERSTROM, Presiding Judge.

The jury convicted defendant of second degree burglary and burglarious stealing but was unable to agree upon punishment. The trial court therefore sentenced defendant to four years imprisonment on each charge with the sentences running concurrently, from which defendant appeals.

The record yields the following facts. Mrs. Sadie Ketner, a widow, owned a home in Nevada, Missouri, which was broken into on June 25-June 26,1975. Mrs. Ketner was in Florida at the time of the burglary, having left her home on June 15, 1975. Two of her neighbors testified that on June 26, 1975, they discovered that a rear window pane in Mrs. Ketner’s house was broken. They saw a storm window and screen lying against the rear of her house, broken glass was in the yard, and they found the front door of the house open.

Mrs. Ketner testified that when she left for Florida all her storm windows were secured on her house, and her front door was locked. When she returned from Florida on July 8, 1975, she found missing from her home a flashlight, two pairs of binoculars, two radios, her deceased husband’s billfold, several rings, an electric fan, and personal checks.

The police returned to Mrs. Ketner most of the above property which she positively identified as her own and as having been in her home when she left for Florida. The police found the property in the trunk of a car registered to a Phil Gilbert, and to which they were directed by Nadine Gilbert. When Nadine Gilbert took the police to the car, she was in the custody of the police for investigation of the.burglary of the Ketner house.

Defendant was arrested by Vernon County Deputy Sheriff Leon Dowdy on June 28, 1975, at a motel near Nevada, Missouri. Police Officer Larry Moore of Nevada, Missouri, accompanied Dowdy to the motel. While there, Dowdy also arrested Phil Gilbert. At the patrol car in the motel parking lot, the officers read the arrestees their Miranda rights. Officer Dowdy testified that Phil Gilbert and defendant talked between themselves while they were being driven to the Nevada Police Station. Gilbert indicated to the arresting officers that he and defendant shared the motel room where defendant was arrested.

Officer Moore interrogated defendant while at the police station. He testified that before beginning questioning he again read to the defendant his Miranda rights and that defendant indicated that he understood those rights. The officer stated that the defendant did not indicate to him that he wished to speak to an attorney. Officer Moore also filled out part of a “Waiver Form” which states that the signer of the form has read his rights; that he understands them; that he is willing to speak to the police and answer questions; that he does not desire assistance of counsel; and that no threats or coercion has been used against him. Defendant signed the waiver form. Officer Moore interrogated him after he signed the form.

Initially the defendant denied having anything to do with the burglary. Officer Moore told the defendant that blood had been found near the broken window at the Ketner house. Officer Moore testified that he found a small cut near the wrist of the defendant. Officer Moore told defendant that fingerprints had been taken at the Ketner house. Officer Moore testified that he said to the defendant, “Most likely, if you are the one that done it, it will come back to you.” The defendant finally told Officer Moore verbally that he left Kansas City by car on Wednesday night of that week with Phil Gilbert, Nadine Gilbert and Rosella Grube; that the foursome arrived in Nevada after much drinking and went to a park; that while there in the park defendant told the others that he would break into the house across the street; and that he then went across the street and broke into the house, taking items from it. Mrs. Ketner’s house is across a street from a park. Defendant also told the officer that he broke into the house while drunk and that the cut on his wrist was from the burglary; that he took personal checks from a red box in the back bedroom of the house; and he also described to Moore several other items which he took from the house. These items, also described on his written statement, match identically the items which the police recovered from Phil Gilbert’s car and which items Mrs. Ketner identified as hers. The written statement by defendant is virtually identical to the description of Moore of the verbal statements made by defendant. The defendant wrote the statement immediately after making the verbal statement.

Prior to trial, defendant moved the court to suppress both the written and verbal statements. At the hearing on the motion to suppress, defendant testified that before he made any statement he requested from Officer Dowdy assistance of counsel, but Dowdy responded that he could not obtain an attorney for the defendant. He further stated that he did not read “the fine print” on the form on which he wrote the confession. The only other witness at the hearing on the motion was Officer Moore, who testified to the facts of the interrogation as outlined above. After hearing this evidence, the court overruled the motion, stating: “The Court feels that the State has sustained its burden of proof as to the voluntariness of the statement.”

I.

Defendant first complains that the trial court erred in overruling his motion to suppress, contending that his statements were given after he requested an attorney and had been denied the opportunity to consult with counsel. In support of this contention, defendant relies upon his own testimony given at the hearing on the motion to suppress in which he testified that he requested assistance of counsel from Officer Dowdy who stated that an attorney could not be appointed at that time.

Defendant’s testimony in this respect could properly be considered by the trial court together with State’s Exhibit No. 9, a signed Waiver of Rights, in which defendant specifically stated, “I do not want a lawyer at this time.” In view of that signed statement given immediately before Officer Moore took defendant’s statement and just after defendant claims he asked Officer Dowdy for assistance of a lawyer, the trial court could reasonably disbelieve defendant’s testimony to the effect that he asked Dowdy for legal help. The court’s ruling on the motion to suppress, that “the State has sustained its burden of proof as to the voluntariness of the statement,” is therefore supported by the evidence taken at that time.

Moreover, before defendant’s statement was introduced in evidence, Officer Dowdy took the stand at the jury trial and in his testimony he flatly denied that any request to him had ever been made by defendant for legal assistance. When the court ruled on defendant’s trial objection to admission of his statement, Dowdy’s testimony was before the court and further supported the court’s ruling on that objection. See State v. Howell, 524 S.W.2d 11, 19 (Mo. banc 1975). The trial court’s belief in credibility of witnesses is binding upon this court. State v. Alewine, 474 S.W.2d 848 (Mo.1971); State v. Hunter, 456 S.W.2d 314 (Mo.1970).

A part of the argument portion of defendant’s brief varies from the point as stated to a degree making it doubtful whether this additional argument is properly preserved for attention. The doubt in this respect will be resolved by considering on the merits this additional argument which purports to raise a constitutional issue, thereby eliminating any question of “plain error.” The additional argument is put in defendant’s brief as follows:

“The Court’s refusal to consider the testimony previously given by appellant and requiring a repetition of this testimony by appellant at trial, put appellant in an impossible position. The Court stated that if appellant would testify to those facts, the Court would sustain the objection to the introduction of the statements. Thus, for appellant to be able to invoke his constitutional right to counsel, prior to questioning, he would have to give up his equally important constitutional right against self-incrimination by testifying at the trial, at which time he would be subject to cross examination by the State. Appellant submits that it is reversible error to coerce a defendant to choose between one of two constitutionally protected rights.”

Defendant’s argument is faulty on two grounds. In the first place, the trial court did not refuse to consider the testimony previously given. With respect to this matter the record shows the following colloquy, which represents the sum total of what defendant relies upon:

“MR. BICKEL: In requesting counsel, further interrogation should have then ceased and failing in that, his constitutional rights were violated.
THE COURT: Is there going to be testimony here—
MR. BICKEL: I am assuming that the hearing Monday is a part of the overall court record, as far as my objection is concerned.
THE COURT: All right.” (emphasis added)

Defendant then argued to the court that if the police refused to obtain counsel at the request of a defendant any subsequent conviction must be reversed. In response, the court said:

“THE COURT: All right. If the testimony discloses those facts, of course, the objection will be sustained. At this point, of course, there is no testimony to that effect.
MR. BICKEL: You are not going to consider the testimony of the defendant at the hearing on the Motion to Suppress.
MR. DARNOLD: That motion has already been ruled on. Of course he can object to me trying to introduce it or unless there is some other evidence. That hearing has been decided.”

Considered as a whole, the foregoing colloquy shows an agreement by the court to consider defendant’s former testimony rather than any rejection of it. A fair interpretation of the court’s remarks is that up to that point (at which time Officer Dowdy had already testified in opposition to defendant’s testimony), there was no persuasive evidence to show that defendant had ever requested counsel prior to making his incriminating statement. The court in effect was telling defendant that he had so far failed to show such a fact, but that if he were able to produce any further evidence which would show that to be true, then the court was still willing to suppress the statement. If defendant understood the colloquy differently, he had an obligation to make specific objection and submit an offer of proof. State v. Crow, 486 S.W.2d 248, 257 (Mo.1972); State v. Woods, 274 Mo. 610, 204 S.W. 21 (1918). Defendant took neither of those steps.

A second and independent reason why defendant’s argument fails is that any requirement that he put on his testimony at trial on the merits, if he wanted to have it considered, would not have placed him in any dilemma. In order to make out the existence of a constitutional dilemma, defendant cites and relies upon Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). In that case a defendant gave testimony on an unsuccessful preliminary motion to suppress. Then in the trial on the merits, the government undertook to use that testimony to prove one of the elements of the government’s case in chief against the defendant. The Simmons opinion held the testimony on the preliminary motion could not be so used. That opinion, however, is not in point here. In this case, the State made no effort to use the testimony given by defendant on his preliminary motion. It is defendant, not the State, who seeks use of his testimony. Moreover, unlike the situation in Simmons, defendant’s testimony here in the preliminary hearing did not tend to prove any element of the crime charged and therefore was not incriminating. The essential part of defendant’s testimony on the preliminary motion was simply that he had requested a lawyer and had been denied that right. Repetition of that testimony at the jury trial, if defendant desired to present it, would have in no way prejudiced the defense on the merits.

II.

Defendant next contends that the court erred in overruling his motion for directed verdict of acquittal at the close of the evidence, because the State failed to introduce sufficient admissible evidence to convict defendant of the crime charged. This contention is without merit.

In reviewing a denial of a motion for judgment of acquittal the evidence will be viewed in the light most favorable to the State, and the State is entitled to all reasonable inferences from the evidence. State v. Thomas, 529 S.W.2d 379, 383 (Mo.1975). The State’s evidence must be accepted as true and all evidence and inferences to the contrary must be disregarded. State v. Cox, 527 S.W.2d 448 (Mo.App.1975); State v. Sanderson, 528 S.W.2d 527 (Mo.App.1975); State v. Gideon, 453 S.W.2d 938, 939 (Mo.1970).

In his statement to the police, defendant admitted that he and Phil Gilbert, Nadine Gilbert, and Rosella Grube went to a park in Nevada, Missouri, after traveling from Kansas City, Missouri, on June 25, 1975. The defendant admitted that he broke into a house located across from the park and took certain items from that house. The evidence is uncontroverted that Mrs. Ket-ner’s house is located across from a park in Nevada, Missouri. It is also clear that her home was broken into and certain items were missing which were later found in Gilbert’s car and which items Mrs. Ketner positively identified as belonging to her and as missing from her home. Phil Gilbert and defendant shared a room at the motel where both were arrested. The arresting officers testified that Gilbert and the defendant spoke with each other while being taken to the Nevada police station. Blood was discovered on the broken window at Mrs. Ketner’s house and while at the police station Officer Moore found a recent cut on defendant’s wrist. Accepting the above evidence as true and drawing favorable inferences to the verdict from the above evidence, the State made a submissible case.

III.

The defendant’s final contention is that the court erred during allocution by considering information from a “Hoover Rap Sheet,” because some of the information on the sheet was of arrests which did not result in convictions, and therefore the court was prejudiced to impose a heavier sentence than was proper.

The court did consider what is known as a “Hoover Rap Sheet,” which contained information regarding previous criminal charges against the defendant some of which resulted in conviction and some of which resulted in dismissal. The “Sheet” also does not make clear whether one particular conviction was a felony or a misdemeanor conviction. The defendant complains that the Hoover Rap Sheet was unsworn, uncertified as a court record, and unauthenticated. He says in his brief that it contained evidence of a burglary charge against the defendant dismissed by the State. He states that it contained information of a suspended sentence for which no violation was shown. To summarize his contention, he reasons that the court was improperly influenced to give a heavier sentence by this uncertified and irrelevant information.

It must be noted that defendant in no way objected to the court’s consideration of the Hoover Rap Sheet, nor did he at any time ever claim that the information shown thereon was in any way false. Failing this, defendant preserved nothing for appellate review. State v. Perryman, 520 S.W.2d 126 (Mo.App.1975); Griffith v. State, 504 S.W.2d 324 (Mo.App.1974).

In any event, the trial court was entitled to consider this data and committed no error in doing so. Rule 27.07(b); State v. Hawkins, 491 S.W.2d 342 (Mo.1973); State v. Jackson, 476 S.W.2d 540 (Mo.1972); State v. Cline, 452 S.W.2d 190, 195 (Mo.1970).

Affirmed.

All concur.


source: Caselaw Access Project

author: WASSERSTROM, Presiding Judge.

license: Public Domain

text:
    John W. HALIBURTON, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28409-28454.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   WASSERSTROM, Presiding Judge.

Defendant pleaded guilty to second degree murder in 1972 and was sentenced to 35 years imprisonment by Judge Lucas. In 1975, defendant filed this motion to vacate the sentence under Rule 27.26. That motion was denied by Judge Clark on the record without appointment of counsel or the holding of an evidentiary hearing. On this appeal, defendant assigns those denials as error.

The basis upon which defendant seeks to vacate the sentence is ineffective assistance of counsel prior to and in connection with his plea of guilty. To support that charge, defendant’s motion alleges:

“1. The court-appointed lawyer, Kenneth Simon, interviewed the Movant for a total of less than 30 minutes, which can be proven by Jackson County Jail visiting records.
2. Mr. Simon did not interview the available defense witnesses for the Movant to prepare the defense.
3. Mr. Simon did not interview the state’s witnesses, nor did he investi-gatre (sic) the prosecution’s evidence and explain such evidence to the Movant in detail so that Movant would know what evidence would have to be refuted.
4. Mr. Simon pressured the Movant into a guilty plea against the expressed desire of the Movant who wished to have a trial as he was not guilty.”

I.

To qualify for an evidentiary hearing on a 27.26 motion, the movant must meet the following requirements: 1) His motion must allege facts, as opposed to conclusions, warranting relief. Smith v. State, 513 S.W.2d 407 (Mo. banc 1974); Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974); Arnold v. State, Mo.App., St. Louis District, 545 S.W.2d 682, decided December 14, 1976. 2) Those facts must raise matters not refuted by the files and records in the case. Rule 27.26(e); Smith v. State, supra; Hogshooter v. State, supra; Arnold v. State, supra; Morris v. State, Mo.App., St. Louis District, 547 S.W.2d 827, decided December 21, 1976. 3) The matters complained of must have resulted in prejudice to the defendant, Smith v. State, supra. Each of defendant’s four complaints fails to comply with one or more of those requirements.

A. With respect to the complaint that his counsel only interviewed him for less than 30 minutes, the law does not impose any minimum period of time necessary for this purpose. Williams v. State, 508 S.W.2d 211, 214 (Mo.App.1974); State v. Hamel, 420 S.W.2d 264, 266 (Mo.1967). The time required is simply that sufficient to accomplish proper representation. Defendant’s motion does not state why additional time in interviewing was necessary or what would have been accomplished to his benefit thereby. Indeed, his evidence given before Judge Lucas at the time of the hearing on his guilty plea strongly indicates that no good purpose would have been served by additional conference. At that time defendant stated in answer to questioning by the court that he was in fact guilty, that he was perfectly satisfied with the legal advice he had been given and that he had no unhappiness about his counsel not having done everything he could to defend him in the case.

Moreover, once defendant entered his guilty plea, a determination of the adequacy of counsel became immaterial except to the extent that it bears on the issue of voluntariness and understanding in the entry of the plea. Floyd v. State, 518 S.W.2d 700 (Mo.App.1975); Barylski v. State, 473 S.W.2d 399, 402 (Mo.1971); White v. State, 530 S.W.2d 444 (Mo.App.1975); Parks v. State, 518 S.W.2d 181, 184 (Mo.App.1974); Williams v. State, supra. The record made before Judge Lucas demonstrates beyond quibble that the plea of guilty was entered voluntarily, with proper understanding, and without coercion from counsel or anyone else. In this connection the following portions of defendant’s testimony before Judge Lucas are particularly pertinent: no one had threatened, forced or coerced him in any way to enter the plea; the fatal shot occurred when he and two others were attempting to rob the victim, defendant pulled out his gun, held it on the victim and pulled the trigger; no one, specifically including his own attorney, had threatened him in any way to cause him to come in to enter the plea and he was entering the plea of guilty entirely of his own free will; no one had mistreated him in any way; and he was perfectly satisfied with the legal advice that he had been given and he was not saying that his lawyer had not done everything that any lawyer could do.

B. With respect to defendant’s complaints that his counsel had not interviewed available defense witnesses or the State’s witnesses, the motion fails to state what witnesses those would have been and how those interviews would have been of any benefit to defendant. The allegations are therefore purely conclusory in violation of the rule laid down in Smith and Hog-shooter. This results in the failure of any claim that the alleged lack of investigation was prejudicial. Fritz v. State, 524 S.W.2d 197, 199 (Mo.App.1975); McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974); Arnold v. State, supra; Morris v. State, supra.

Still further, the present complaint is contrary to the admission made by defendant before Judge Lucas that he was perfectly satisfied with the legal advice he had been given and that his lawyer had done everything that any lawyer could do. On top of all that, this alleged failure to investigate in no way touches upon the voluntar-iness and understanding nature of the plea of guilty and the alleged failure to investigate is therefore immaterial.

C. With respect to the alleged “pressure” by defendant’s counsel to enter into a guilty plea, the nature of this alleged pressure is not stated and the allegation is therefore purely conclusory in violation of Smith and Hogshooter. Moreover, this present claim of coercion is belied by the testimony given by defendant before Judge Lucas detailed above.

Under the applicable legal standards, the trial court properly declined to hold an evi-dentiary hearing on defendant’s motion.

II.

Defendant argues as his second point that the trial court should have appointed counsel before overruling the 27.26 motion. He complains that his motion was an untutored effort by a layman which could have been fleshed out and made to comply with legal rules by one schooled in the law. He contends that it is unfair to rule against him because of the inartistic nature of his motion when at the same time he was denied counsel who could have cured the defects.

This basic argument was persuasive upon two members of the Supreme Court as evidenced by the dissent in Loflin v. State, 492 S.W.2d 770 (Mo. banc 1973). However, the majority of the Supreme Court views the matter otherwise, and the majority view is binding upon this court.

Under the majority decision in Lofíin and the facts disclosed by the files and records here, defendant was entitled to neither an evidentiary hearing nor court appointed counsel in connection therewith. See also Keller v. State, 523 S.W.2d 127, 129 (Mo.App.1975). State v. Fritz, 429 S.W.2d 699 (Mo.1968) involves very special circumstances not presented here, and Fritz is not in point.

Affirmed.

All concur.


author: PRITCHARD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. James Douglas DIXON, Appellant.
    No. 28419.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.

      R. M. Gifford, Green City, for appellant; Gifford & Gifford, Green City of counsel.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   PRITCHARD, Chief Judge.

In a trial to the court, appellant was found guilty of the sale of marihuana, and was sentenced to five years imprisonment in the Department of Corrections.

Appellant makes three contentions for reversal. The first point is that the court erred in refusing to “quash” the indictment because it failed to specify the nature of the controlled substance allegedly sold, and failed to negative the exceptions to the definition of marijuana contained in § 195.-010(20), RSMo Supp., 1975, thus placing an unconstitutional burden of proof on appellant under § 195.180.

The relevant portion of the indictment alleged that appellant “did willfully, unlawfully and feloniously sell a certain controlled substance, to-wit: Marij uana, botanically known as Cannabis Sativa L * * § 195.010(20), RSMo Supp.1975, defines marihuana as “ * * * all parts of the plant genus Cannabis in any species or form thereof, including, but not limited to Cannabis Sativa L. * * * It does not include the mature stalks of the plant, fiber produced from stalks (except the resin extracted therefrom), fiber, oil or cake, or the pound, manufacture, salt, derivative, mixture or preparation of the mature stalks * * (Italics, supra, added.) § 195.-020, under which appellant was charged, provides that “It is unlawful for any person to * * * sell, * * * any controlled or counterfeit substance except as authorized in Section 195.010 to 195.320 * * § 195.180 provides, “In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of this law, it shall not be necessary to negative any exception, excuse, proviso, or exemption, contained in this law, and the burden of proof of any such exception, excuse, proviso or exemption, shall be upon the defendant.” The issue of the specificity of the allegation as to what portions or derivatives of the plant were sold was ruled in State v. Page, 395 S.W.2d 146, 148[2] (Mo.1965), where it was held that the challenge to the indictment was without merit. § 195.180 was noted as authorizing the indictment to be in the language used. Besides, the exceptions to the definition of marihuana in § 195.010(20), supra, are contained in a separate sentence, and in that circumstance, State v. Bridges, 412 S.W.2d 455, 457 (Mo.1967), controls. It was there said that where exceptions are not a part of the statutory definition of the crime (e. g., here possession, sale, etc. of the stalks, fibers, etc., are not crimes), but are contained in distinct and independent clauses of the statute, or in separate sections, it is not usually necessary either to plead or prove them, and that the exceptions are purely matters of affirmative defense. See also State v. Collins, 394 S.W.2d 368, 371[5] (Mo.1965), holding that a federal judgment of conviction for possession and sale of heroin was admissible as a prior felony conviction for Second Offender purposes despite its failure to contain specific negation of the state narcotic exemption statutes, § 195.020, et seq.

In this case Chemist Durham testified that the green plant material in evidence was marihuana. The terms “cannabis” and “marihuana” are synonymous. State v. Simpson, 534 S.W.2d 568, 570 (Mo.App.1976). The state further proved that the green plant material was not mature stalks or other material not defined as marihuana, and appellant stipulated twice at trial, that it was a controlled substance. The state, perhaps unnecessarily, shouldered the burden of proof as to the exceptions to the definitions of marihuana not being in the case. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), cited by appellant, held merely that the reasonable doubt standard of criminal law applies to juvenile proceedings as a matter of constitutional due process of law. Mullaney v. Wilbur, 421 U.S. 684, 701, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), held that a Maine rule placing the burden of proof upon a defendant to prove he acted in heat of passion on sudden provocation did not comport with the requirement of the due process clause of the fourteenth amendment that the prosecution must prove beyond a reasonable doubt every fact necessary to constitute the crime charged. As above construed, the indictment specified the elements of the crime charged, it not being necessary to negative the separately enumerated exceptions. No unconstitutional shifting of the burden of proof is here involved. Point I is overruled.

Appellant’s second point is a composite of three contentions for reversal. The first is that the trial court erred in overruling the motion for new trial because the verdict was against the weight of the evidence. This contention need not be noticed other than to say that in a court-tried case under Rule 26.01, the findings of the court shall have the same force and effect of a verdict of a jury, and review shall be in the same manner as though a verdict of guilty had been returned by a jury. State v. Haislip, 411 S.W.2d 81 (Mo.1967). See State v. Simmons, 494 S.W.2d 302, 303[2] (Mo.1973), holding that the weight of the evidence in either a court or a jury tried (criminal) case is not reviewable by an appellate court.

The second contention of Point II is that the state failed to show a sale of the controlled substance. Appellant seems to base that contention on the evidence that Debbie, his then wife, actually handed the marihuana to Trooper Moses and took the money from him. The argument ignores the further evidence that Moses and appellant bartered for a quantity of marihuana, and a price was established between them. Appellant then brought the marihuana from the kitchen to the living room where he handed it to Debbie, who handed it to Moses, who handed Debbie $30.00, who handed the money to appellant. These facts, with Debbie only as a conduit, causes them to fall within the definition of a “sale” under § 195.010(30) RSMo (Laws 1975, p. -, H.B. 438, § 1), as including “barter, exchange, or gift, or offer therefor, and each such transaction made by any person, whether as principal, proprietor, agent, servant or employee; * * Obviously, under the evidence, appellant was the principal actor in the transaction. See State v. Sykes, 478 S.W.2d 387, 389-390 (Mo.1972). Appellant also argues' as his third contention that the state failed to show his possession of the controlled substance, evidently claiming that possession is an element of sale. It is not necessary to decide the contention as the evidence clearly shows appellant’s possession when he got the marihuana from the kitchen. Point II is overruled.

One year and four months after the indictment was filed and two days before trial was to begin (in October, 1975), appellant filed a request for continuance and for a psychiatric examination under § 552.020,2 RSMo (Supp.1975). The court overruled it as not being timely but the appellant concedes that the real issue is whether the court had reasonable cause to believe that appellant had a mental disease or defect excluding fitness to proceed, which is the requirement under the statute. See State v. Rand, 496 S.W.2d 30, 36[10] (Mo.App.1973), and cases there cited and quoted. As in the Rand case, appellant’s motion stated no facts which would raise a reasonable doubt in the mind of the court that appellant was suffering from a mental disease or defect. In support of the motion, appellant did testify that in September, at the suggestion of his father, that he seek some sort of psychiatric evaluation, he saw Dr. George J. Lytton, M.D., of Kansas City. Dr. Lytton suggested that appellant come back and get in touch with him again, but appellant did not return because he was in jail in Trenton, Missouri, on a sentence for careless and imprudent driving. A report was to have been made by Dr. Lytton after appellant saw him again. On the first visit, Dr. Lytton thought it might be a good idea if appellant would seek help in a private institution of some sort. On cross-examination, appellant acknowledged that he assisted his counsel somewhat in preparing for the deposition of Trooper Moses; that he knew he was charged with selling marihuana; that he saw his counsel possibly once every six to eight weeks since the indictment was returned, and would talk to him about his defense; and that he went to see Dr. Lytton basically because of his emotional state.

Although it is true under Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), that if at any stage of the proceedings a bona fide doubt as to a defendant’s competency to proceed arises, the doubt must be resolved. Considering all the evidence here, the court did resolve the matter, and not improperly so. What is significant is that on October 22, 1975, two days before the case was set for trial, appellant appeared with counsel and waived trial by jury. At that time the court extensively questioned appellant as to his understanding of his rights to jury trial. At that time appellant acknowledged that he had a full understanding of the proceedings against him. It further appears that medication appellant was receiving for headaches, and a tranquilizer, would not affect his ability to make a decision, and after a conference with counsel and all the members of the family, they were of the opinion that appellant had the capacity to think through whether he wanted to have a jury trial. There is no evidence which would raise a reasonable doubt as to appellant’s ability to stand trial, and the court did not err in overruling the motion for continuance and psychiatric examination. Point III, raising the issue, is overruled.

The judgment is affirmed.

All concur.


text:
    Carl BILLINGS, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28473.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Pub. Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   WASSERSTROM, Presiding Judge.

Carl Billings was convicted of arson, and his direct appeal was unsuccessful. Billings v. State, 503 S.W.2d 57 (Mo.App.1973). He now seeks relief by way of Rule 27.26. Following an evidentiary hearing, the trial court denied the motion. Billings contends on this appeal that the trial court erred in overruling his Rule 27.26 motion because the evidence shows that Glenn Terry, the State’s chief witness at his trial, gave false testimony to the knowledge of the prosecutor. We affirm.

Appellant actually complains of two instances of false testimony. First, he claims that Terry gave false testimony concerning a “deal” between the prosecution and this witness. Secondly, appellant alleges that Terry falsely stated at trial that he had no misdemeanor convictions when in fact the evidence at the Rule 27.26 hearing reveals that Terry did have a misdemeanor conviction at the time of trial. In both instances, appellant alleges that the prosecution was aware that Terry’s statements were false but failed to correct the erroneous testimony.

A conviction obtained by the use of evidence known to be false by representatives of the State who allow it to be admitted without correction must be vacated under the Fourteenth Amendment. Napue v. People of State of Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); State v. Statler, 383 S.W.2d 534, 537 (Mo.1964); Coles v. State, 495 S.W.2d 685, 687 (Mo.App.1973). Appellant has wholly failed to meet the burden of proof imposed on him to show perjury on the part of the witness and knowing use of this perjury by the State.

Regarding the so-called “deal,” Terry was extensively questioned at the Rule 27.26 hearing. He consistently denied that there was a “deal” between the State and himself, and he affirmatively testified that no favorable treatment had been offered to him if he cooperated with the State by testifying for the prosecution. There is no evidence that any deal existed, and consequently there is no evidence that Terry gave false testimony at trial concerning any “deal.” Accordingly, appellant has failed to show the use of false testimony concerning a “deal” to the knowledge of the prosecution.

At the trial, witness Terry was asked if he had ever been convicted of a misdemeanor and he replied that he had not. Later he found out that he had a misdemeanor “conviction” for “fighting on the street” but he didn’t know at the time of the trial if he was “charged” with it. There was no evidence at the Rule 27.26 hearing as to whether the “misdemeanor” was a violation of a city ordinance or a violation of state statute.

If Terry’s “conviction” was for violation of a city ordinance then his testimony at trial, that he had no misdemeanor convictions, was not subject to impeachment. See Kansas City v. Roberts, 411 S.W.2d 847, 849-850 (Mo.App.1967); § 491.050 RSMo 1969, Note 13. However, even if Terry did have a criminal misdemeanor conviction for violation of a state statute, thus making his testimony at trial subject to impeachment, there is no evidence whatsoever that the prosecution had knowledge that the testimony was false. Therefore, appellant has failed to meet his burden of proof and, accordingly, the judgment of the trial court, denying Rule 27.26 relief, is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Clifford TENEBRUSO, Appellant.
    No. KCD 28526.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.
    James L. McMullin, Kansas City (McMul-lin, Wilson & Schwarz, Kansas City, of counsel), for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   PRITCHARD, Chief Judge.

Appellant was convicted by the verdict of a jury for the commission of the offenses of burglary in the second degree and stealing. The court, applying the Second Offender Act, § 556.280, RSMo 1969, sentenced appellant to 8 years for the burglary, and 4 years for the stealing, to be served consecutively in the Department of Corrections.

The sole issue presented here is whether the case should be reversed and remanded for a finding of the applicability of the Second Offender Act, because the court failed to make that finding which (as contended) resulted in the jury not making an assessment of the punishments. Appellant presents the point as plain error resulting in manifest injustice under Rule 27.20(c), because the point was not preserved during trial or in the motion for new trial. It will be considered under the plain error rule because of Rule 28.02 which, in part, requires consideration of the sentence although not raised in the trial court or preserved for review. State v. Holmes, 434 S.W.2d 555, 559[6, 7] (Mo.1968).

The amended information, in addition to charging the present offense, alleged that appellant was convicted of the crime of burglary in the 2nd degree on May 13,1974, was sentenced to 3 years in the Department of Corrections, and on the same day was placed on probation for a period of 3 years to the Missouri State Board of Probation and Parole.

Shortly before the close of the state’s case, it offered “ * * * [I]n compliance with the Second Offender Information, which the State has filed in this case, the State offers into evidence State’s Exhibit No. 7, which is a certified copy of the Judgment and Sentence and probation of one Clifford A. Tenebruso, which states that on the 13th day of May, 1974, in the County of Jackson, said defendant, Clifford Tenebruso, was convicted of the crime of Burglary in the Second Degree, and that thereafter, on the 13th day of May, 1974, said defendant, Clifford Tenebruso, was sentenced to a term of three years, in the Missouri Department of Corrections, and that thereafter, on the 13th day of May, 1974, said defendant was placed on probation for a period of three years to the Missouri State Board of Probation and Parole. In compliance with Section 556.280 of the Missouri Revised Statutes, the State offers this exhibit into evidence.” [The appellant objected to the admission into evidence of the exhibit on the ground that there was no showing that the Clifford Tenebruso in the exhibit was the same man as appellant, a contention which is not here pursued.] “THE COURT: Well, the Court takes judicial notice of the facts, as set out in State's Exhibit 7, as being part of the court record of Jackson County, Missouri. The objection is overruled.” The exhibit was then received in evidence.

After appellant was sentenced by the court, his counsel orally moved the court for bond, saying: “MR MCMULLIN: Very good, Your Honor, and would you consider setting a bond in this case, whereby he may be able to make bond? We realize that the bond may not be able to be made, because he has a parole revocation facing him on the one he’s on parole on, but we would like to ask for a bond, in the event that, after I contact the other people today, if they don’t revoke him, we want to make a bond. THE COURT: Well, the Court has considered the matter of bond and the background of this defendant and the Court is aware that the defendant was, in fact, on probation for burglary, at the time of the commission of this burglary and, considering all of the circumstances, the appeal bond is set in the sum of $50,000.00.”

The matter of appellant’s prior conviction was not only alleged in the amended information, so as to apprise him that the second offender act would be applicable, but it was taken up outside the hearing of the jury. The receipt into evidence of State’s Exhibit 7 showing the prior conviction is not here challenged. At sentencing by the court counsel stated that appellant was on parole, and the court stated it was aware that appellant had been on probation for burglary at the time of the commission of the instant burglary. The jury was not instructed as to assessing punishment, and by its verdict found guilt only. The entire procedure was accomplished in accordance with the purpose of the second offender act. Under the facts, no prejudice has occurred to appellant, and the lack of a finding by the court can only be a harmless omission. State v. Blackwell, 459 S.W.2d 268, 272[3] (Mo. banc 1970) applies. See also State v. Franklin, 547 S.W.2d 849 (Mo.App. 1977), handed down concurrently herewith.

In the Blackwell case, however, it was noted, “It is desirable that the court in its findings detail each of these required items, as that will serve to insure that the required evidence has been offered * * *.” See also State v. Abernathy, 515 S.W.2d 812 (Mo.App. 1974). If the finding had been made in this case, it would have eliminated this appeal upon the sole point of lack of finding, and one of the points in the Franklin case, supra.

The judgment is affirmed.

All concur.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Leonard FRAZIER, Appellant.
    No. KCD 28572.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.
    Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Sixteenth Judicial Circuit, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., David L. Baylard, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and SHAN-GLER and DIXON, JJ.
   PER CURIAM:

Appellant was convicted of the commission of the crime of murder in the second degree by the verdict of a jury. In accordance with the verdict, the court sentenced appellant to 30 years imprisonment in the Department of Corrections, Jefferson City, Missouri. The dispositive issue is whether the state made a submissible case, and in the consideration of the facts below, it must be concluded that it did not, and the case must be reversed and remanded for new trial.

On May 12, 1975, Michael Holiway and his two brothers, David L. (the deceased), and Paul, were in Michael’s 1965 Chevelle on the way from their residence to a store. Michael was driving, David was in the front passenger seat and Paul was in the back seat. At about 7:30 or 8:00 p.m., Michael skidded to a halt next to a brown Thunderbird which was parked in the street at 44th and Indiana in Kansas City. Michael and his brothers spoke to the three men in the Thunderbird, and Michael recognized the man in its back seat as Charles Edwards, and identified appellant as the man riding in the front passenger side of the Thunderbird. There was then a conversation between one of Michael’s brothers, Michael and the men in the Thunderbird, and the driver of the Thunderbird (who was Warren Frazier, appellant’s brother) pulled a gun and shots were fired into the Holiway car. Michael tried to pull David down, but David was shot and killed, and Michael was shot in the right lung. Michael saw only one gun in the Thunderbird and it was in the hand of Warren Frazier, the driver.

Paul Holiway, 14 years old, testified that on the way to the store a car parked to their right was encountered. Someone in that car “hollered” and Michael Holiway stopped, and David Holiway, in the front passenger seat, talked with a man in the other car, asking, “What you all got the guns for?” He saw the driver of the other car [Warren Frazier] with a gun, and he saw no other guns. Shots were fired at the Holiway car, and Paul ducked down in the back seat. He recognized the occupant in the back seat of the other car as Charles Edwards, who did not have a gun, but he did not see the man in the front passenger seat of the other car [appellant] with a gun either. After the shooting Michael told Paul to go home, and he ran home to get help. According to Paul, there were no guns in the Holiway car.

Richard Beal, arriving at the scene about 8:04 p.m., found the Chevelle with its passenger door open and deceased lying in the street with his feet inside the door. There were nine (bullet) holes in the passenger door, and one exit hole on the driver’s side. Gerald R. Borchers found six spent 9 millimeter casings and one spent bullet outside the car. He also found spent bullets, lead fragments and copper jackets inside the car. Dr. Bonita J. Peterson removed the three slugs from deceased’s body upon performing an autopsy, and in her opinion, death was caused by gunshot wounds to the back and head with massive internal bleeding. The three slugs were examined by John Clayton, supervisor of the Firearms and Toolmarks section of the Regional Crime Laboratory. Clayton determined that two of these slugs were fired from a .38 caliber special, and the other slug came from a 9 millimeter, semi-automatic gun which was also the size of slug found outside the car. It was Clayton’s expert opinion that two different weapons were involved in the assault.

Michael Holiway testified that when the two cars were stopped at 44th and Indiana, he and his brother asked “What is going on?” and Michael said (to the driver of the other car) “ ‘How come you have been cruising around the area?’ ” He said, “ ‘Ah, it ain’t nothing.’ Then they just pulled the gun and started firing. Q. You said something about cruising around the area. Had you seen this automobile before that day? A. Yes, sir. Q. What at? A. I saw it down on 43rd,- going — it was right off of Indiana and 43rd, because I helped an apartment man move that day. I saw it earlier. And then just a little bit before that, I saw it pass by my house. Q. When you saw that car pass by, did you recognize anyone that was in it? A. No, sir. Q. Okay. So when you were asking about them cruising around, your comments were directed toward the car on that particular time? A. Yes, sir.” On cross-examination, Michael testified he had never had any hassle with Leonard Edwards, and “Q. You do not recall that, in Complaint No. G-170789 you were charged with Assaulting Leonard Edwards by shooting at him? A. Yes, I was charged with him, but it wasn’t true. Q. It wasn’t true? A. No, it wasn’t. Q. You were charged on April 27, 1975, at 0345 hours with distrubing the peace of Leonard Edwards by shooting at him; is that correct? A. Yes, it is correct. Q. All right. You know that Leonard Edwards is the brother of Charles Edwards? A. Yes, he is. Q. The man whom you said was in the car, and you have said? A. No, I didn’t say he was in the car. Q. Charles Edwards was not in the car? A. Yes, Charles Edwards was in the car. Q. Now, at the time this shooting incident took place, in which you claimed that you and your brother were unarmed, this case in which Charles Edwards had, or Leonard Edwards has accused you of shooting at him, had not yet been settled; had it? A. No, sir; it hasn’t?”

The state argues that the evidence that the Frazier car was cruising around the Holiway neighborhood, with the evidence that Michael Holiway had been charged with assaulting Leonard Edwards, created a reasonable inference that appellant, Warren Frazier and Charles Edwards, were out to avenge the assault upon Leonard, and thus appellant was present at the scene of the crime by preconcert. The state cites and quotes 22 C.J.S. Criminal Law § 88(2), p. 266, “So where one’s presence is by preconcert, he may be guilty as an aider and abettor, although neither by word nor by act does he encourage or discourage the commission of the felony; and a conspirator’s presence at the scene of the crime constituting the object of the conspiracy may warrant his conviction, notwithstanding he was not participating in the commission of the crime.” The fallacy of the state’s argument is that there was no evidence at all of a conspiracy to avenge the assault upon Leonard Edwards. There was no act done, under the evidence, in furtherance of any such conspiracy. There was no evidence that any of the occupants of the car at 44th and Indiana, including appellant, were in it as it was seen by Michael some time before. There is, of course, no evidence that appellant did anything to participate in the shooting. He was merely present as a passenger in the front seat. There is no evidence upon which an inference that appellant was an aider and abettor could be legitimately based. Under this record, which is bereft of any evidence concerning an agreement or conspiracy or “presence by preconcert”, all that is shown is appellant’s presence in the automobile at the time of the shooting. Although many times distinguished upon facts showing participation in the commission of crimes beyond mere presence, State v. Castaldi, 386 S.W.2d 392, 395[1-3] (Mo.1965), controls: “Presence of the accused at the commission of a felony is evidence to be considered in determining whether he was guilty of aiding and abetting, but in order to aid and abet another in the commission of a crime something more than mere presence must be shown. * * * It is necessary that the accused ‘associate himself with the venture’ . (citing case); that some form of affirmative participation be shown (citing case) — participation in the crime as something that he wished to bring about; that he sought by his action to make it succeed, (citing case); that he ‘consciously shared’ in the criminal act. (Citing case).” It was said in Castaldi that flight is a circumstance to be considered against an accused in connection with other evidence of the commission of a crime. The state argues here that appellant fled the scene. But the evidence is that appellant’s brother was behind the wheel of the car. There is no evidence that appellant had any control over the car. Although evidence of the independent flight of a conspirator may be admissible as part of the res gestae, 22A C.J.S. Criminal Law § 777, pp. 1181, 1184, there is no proof that Warren Frazier, the driver of the car, was a conspirator. The proof showed that two weapons were used in the shooting, but there is no proof that appellant had or fired any weapon. The state cites People v. Kolep, 29 Ill.2d 116, 193 N.E.2d 753 (1963); and State v. Simmons, 494 S.W.2d 302 (Mo.1973). Both may be distinguished. In Ko-lep, the charge was murder of one Roseann Beckman, whose death resulted from hitting her head on the sidewalk after she was struck by co-defendants. The court found a common design of Kolep and the co-defendant to commit an unlawful act — have intercourse with Beckman against her will, to which Kolep assented. In Simmons, there was preconcert of action of defendant in climbing over a fenced area with others and trespassing on a boat. He fled upon being discovered and concealed himself. Obviously, those facts, as the court held, constituted more than “mere presence.”

It does not appear that the state may not produce evidence of a conspiracy of appellant and his companions to commit an unlawful act — the avenging, if so, of the prior assault by Michael Holiway upon Leonard Edwards. For this reason, the case is not reversed outright. State v. Morse, 503 S.W.2d 450, 451 (Mo.App.1973); State v. Wade, 531 S.W.2d 726, 730 (Mo. banc 1976). If, however, on further proceedings, or consideration by the state, such evidence is not produced or is not likely to be produced, or if there is no further showing of his active participation, the appellant should be discharged.

The judgment is reversed and the case is remanded for new trial.


text:
    STATE of Missouri, Respondent, v. Robert L. GOREE, Appellant.
    No. KCD 28575.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.
    Terry E. Brummer, Asst. Public Defender, 13th Judicial Circuit, Columbia, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   PRITCHARD, Chief Judge.

A jury rendered its verdict of appellant’s guilt of burglary in the second degree and fixed his punishment at 4 years imprisonment. The court sentenced him to imprisonment in the Department of Corrections for the 4 years set by the jury.

No issue is presented as to the sufficiency of the evidence to sustain the conviction. The sole contention of error is that the court overruled appellant’s challenge for cause of venireman Sterling Kelley, thus forcing him to utilize his peremptory challenges, and the court’s refusal to sustain the challenge was an abuse of discretion.

The court first introduced counsel for the state: Mr. Earl Seitz, assistant prosecuting attorney, and the court stated that he worked under the supervision of the prosecuting attorney, Milt Harper, and in that same office were Mr. Eric Sower, Mr. John Clark and Mr. David Strauss. No venireman responded that he was a client of or personally acquainted with state’s counsel other than simply knowing that Mr. Harper was the prosecuting attorney and Mr. Seitz was the assistant. The state waived the voir dire examination. Appellant’s counsel then inquired: “ * * * I would further ask this question in regard to possible criminal cases: Is anyone presently a complaining witness in a criminal case, in other words, have you had contact with the Prosecuting Attorney’s Office as a complaining witness, anyone? Mr. Kelley, I am aware of the situation you’re in. Could you tell me approximately how long that case has been, how long have you had contact with the Prosecuting Attorney’s Office? JUROR KELLEY: It began a little over a year ago. My most recent contact was probably a month ago. MR. BRUMMER: Can you tell me about how many conversations you might have had, who you have talked to in the Prosecutor’s Office? JUROR KELLEY : Eric Sower is handling the case and I talked to him yesterday, briefly, about it, asking what progress was being made or if the continuance had been set or whatever. MR. BRUMMER: In the past, can you tell us about how many conversations you have had with members of their office? JUROR KELLEY: Oh, I was in probably twice discussing it with them.” Appellant’s counsel made 10 challenges for cause, including: “Juror No. 14, Sterling Kelley, he’s a complaining witness, has had several conversations with the Prosecuting Attorney’s Office over the period of more than a year.” This challenge was overruled by the court, it stating: “No foundation shown to me, Mr. Brummer, that he’s in any way prejudiced. You asked him if he had contact with the police and he indicated yes, he had. I don’t think that, the fact that a witness has reported a crime, if you want to develop that, but I don’t think you have shown any— * * * MR. BRUMMER: The grounds I allege on 14,1 thought, I may be wrong, that he’s a complaining witness, not for his familiarity with the policemen but his contacts with the Prosecuting Attorney’s Office. THE COURT: I understand. He’s like many other people. But there has been nothing further developed whether this in any way causes him to have any preconceived idea, any prejudice. He simply reported that he’s been discussing a particular case. I don’t think that’s grounds in itself. * * * ”

It seems rather clear from the foregoing that Venireman Kelley had some kind of contact with the prosecuting attorney’s office as a complaining witness. It was not developed, however, for the benefit of the trial court or for this court, the nature of the case in which Kelley was involved, or, more importantly, whether that experience would prevent him from entering the jury box with an open mind, without bias and prejudice toward appellant, or without having formed an opinion as to his guilt. The matter can only be reviewed in the posture presented: whether the fact, standing alone, that Kelley was a complaining witness in a criminal case is a basis for sustaining a challenge for cause.

Chapter 546, RSMo 1969, controls the statutory grounds for the challenge for cause of a juror. § 546.140 provides that “No witness in any criminal case shall be sworn as a juror therein if challenged for that cause before he is sworn; and if any juror shall know anything relative to the matter in issue, he shall disclose the same in open court.” As noted, it was brought out that Venireman Kelley was a complaining witness in another case, so that matter was disclosed to the court. § 546.150 provides, “It shall be good cause of challenge to a juror that he has formed or delivered an opinion on the issue, or any material fact to be tried, but if it appear that such opinion is founded only on rumor and newspaper reports, and not such as to prejudice or bias the mind of the juror, he may be sworn.” Again, as noted, it was not developed that Kelley had formed an opinion as to the issue, or any fact to be tried, in this case, or that he had a bias or prejudice toward appellant by reason of being a complaining witness in some other criminal case. Absent some inquiry, and a concomitant showing, that Kelley had formed an opinion in this case, or that he had a bias or prejudice against appellant by reason of his being a complaining witness in another case, it cannot be said that the trial court erred in refusing to sustain the challenge.

There is no statutory authority in this state that a venireman is disqualified from being sworn to try a criminal case because he is a complaining witness in another case. It is, however, said at 50 C.J.S. Juries § 230, p. 978, “Independent of statute a juror may be incompetent on the ground of bias if he is a party to, or interested in, another suit of the same character or involving the same controversy, is under indictment for an offense of the same character, or is the prosecuting witness in another case then pending against the same accused for a similar offense.” [Italics added.] The facts in the C.J.S. footnoted case show that the reason for the disqualification went farther than the veniremen being mere complaining witnesses in other cases. In Carr v. State, 104 Ala. 4, 16 So. 150 (1894), it was developed that juror Neff was a witness before the grand jury in a similar case, that of a banker receiving deposits knowing that the bank was insolvent, and there was a like case pending in court in which Neff was a prosecuting witness against a defendant for receiving a deposit from him knowing, or having had reason to know the bank was insolvent, and Neff believed the defendant was guilty, and in which case Neff would recover, by way of a fine, the amount of his deposit. These additional facts caused the court to hold that Neff should have been discharged as a juror upon defendant’s challenge for cause. In Durham v. State, 182 Tenn. 577, 188 S.W.2d 555 (1945), footnoted at 47 Am.Jur.2d, Jury, § 272, p. 848, juror Meador answered on voir dire examination that he had no court experience except that he was called as a juror at the present term of court in the case of State v. Ray Dean, and was excused. He did not reveal the facts of at least two experiences in court of “exceptional character”: one in which he had been a defendant, was found guilty and served a term in prison; and in the other he was prosecutor on an indictment for a grave offense of a character similar to that of the case he had been called to try as a juror. The court posed the question that did not these facts give rise to a legal presumption of the want of impartiality which the constitutional requirement contemplated, and reversed and remanded the case for new trial. These facts distinguish the Carr and Durham cases from the one here presented.

State v. Land, 478 S.W.2d 290, 292[3] (Mo. 1972), cited by appellant, did not reverse the conviction because the juror had been a victim, but on his admission of possible prejudice as a result of having been a victim. In State v. Green, 511 S.W.2d 867, 876[15] (Mo. 1974), there was a contested inclusion of a juror who had been a victim of a crime, but from whom it was developed that the juror could differentiate his former experience from that on trial, and he could be fair to the state and to the defendant. Held, “On this record it may not be said that the court abused its discretion, because the sense of the examination is that the juror would base his verdict solely on the evidence.” So also in State v. Daugherty, 484 S.W.2d 236, 237[1] (Mo. 1972). In State v. Harris, 425 S.W.2d 148, 154, 155 (Mo. 1968), the challenge to the venireman was on the ground that his experiences in connection with two other burglaries of his home and theft of his car would affect his “feelings” in the case [inferentially, appellant’s contention here], but the court held that there was no abuse of discretion in refusing to sustain the challenge, saying, “A determination by the trial judge of the qualifications of a venireman necessarily involves a judgment based on an observation of the demeanor of the venireman and, in the light of that observation, an evaluation and interpretation of his answers as they relate to whether he would be fair and impartial if chosen as a juror.” See also Humphrey v. State, 502 S.W.2d 251 (Mo. 1973). Manifestly, what may be gleaned from these cases, and the statutes, is that something more than the venireman having been the victim or complaining witness in another crime must be shown so as to indicate a bias or prejudice as grounds for a challenge for cause. The trial court did not err in ruling that no foundation had been laid for the challenge for cause.

A further reason, aside from the foregoing, exists for denying relief to appellant in this case. Although appellant stated in his motion for new trial and here states in his brief that he was forced to expend one of his peremptory challenges to remove Venireman Kelley, the record does not bear that out, and it is not conceded in respondent’s brief. This alone is enough to deny the contention. State v. Londe, 345 Mo. 185, 132 S.W.2d 501 (1939); and see State v. Simpson, 529 S.W.2d 19 (Mo.App. 1975).

Appellant more than somewhat obscurely contends in argument that not only was Venireman Kelley the prior victim of a crime, but he was also involved with the prosecutor’s office. He says, “In effect, the state was serving as his counsel at the time of appellant’s trial.” It does not appear that Kelley was involved with the prosecutor’s office any more than being a complaining witness, as, for instance, by being represented by the prosecutor or someone in his office, in a civil matter as might give a right of challenge for cause under § 495.-150, applicable to Boone County, Missouri. The prosecutor represents the state, and not a complaining witness because he is retained by the state for the prosecution of persons accused of crimes. State, on Inf. McKittrick v. Wymore, 345 Mo. 169, 132 S.W.2d 979, 986 (banc 1939); State ex rel. Griffin v. Smith, 363 Mo. 1235, 258 S.W.2d 590, 593 (banc 1953). This contention is without merit.

The judgment is affirmed.

All concur.


text:
    Louis E. SERNA, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28645.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.
    Application to Transfer Denied May 10, 1977.
    Terry E. Brummer, Asst. Public Defender, 13th Judicial Circuit, Columbia, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   PRITCHARD, Chief Judge.

This is an appeal from a denial of a motion to vacate sentence under Rule 27.26. The sole point on appeal relative to the allegation of ineffective assistance of counsel, is the trial court’s failure to make a finding upon counsel’s failure to call Connie Crouch as a witness.

The matter arose in this manner: “Allegation two” of appellant’s Rule 27.26 motion as to ineffective assistance of counsel: “The law could have established that mov-ant and Wade were friends and that the alleged sale [of heroin] was procured through entrapment in that the lawyer could have secured witnesses that Wade and movant were very goods friends * * [Brackets added.] Appellant testified that he believed he had an entrapment defense to the sale of heroin because he and the informer (Wade) were good friends. He wanted, at trial, to call Connie Crouch, his employer to show his friendship with the informant, and gave his counsel her name. Appellant understood that his counsel talked to her after his arrest, but only about making bond. On cross-examination, appellant testified: “Q Are you telling this Court that you asked Mr. Franklin to call her as a witness? A. Well, I wanted her as a witness, right, you know. Q What was she going to testify to? A. That me and Bill Wade were friends. Q That’s the only thing; right? A. Right. Q Nothing else? A. Nothing else. Q She wasn’t a witness to the facts of the case, was she? A. What? Q Is there anything else that she knew about this case other than the fact that you say she would testify you and Wade were friends? A. To my knowledge I don’t think so. Q What would have been the only reason whatsoever; correct? A. Right.”

Counsel who represented appellant at the original trial testified on the hearing of this motion that appellant never did tell him what Crouch’s role in the case was, but he did say to talk to her. He did talk to her, but only in regard to bonding, and she knew absolutely nothing about the allegations in the indictment. The deposition of Wade was taken shortly before trial, during which Wade testified that he and appellant were good friends, that had a bearing on case, and he was present at the time of trial, and the facts he wanted Wade then to testify to were brought out by the narcotics agents. “Based upon his [Wade’s] evidence at the deposition, I felt that his story would remain the same and it would be damaging to Mr. Serna. In other words, it was just another witness that would be testifying substantially to the same thing that the police officers were testifying to. Q You’re familiar with the law of entrapment in the State of Missouri? A. Yes. Q And your knowledge of this, of course, was considered in making your trial decision as far as whether or not to call Mr. Wade as a witness; is that correct? A. I did not feel like entrapment was a viable defense.” It thus does not appear that there were any facts which would constitute a defense of entrapment, and on this record, counsel could not be considered derelict in failing to present the same, and the failure to call Connie Crouch as a witness to show merely that Wade and appellant were good friends does not show that counsel was ineffective in representing appellant.

The court did not in so many words rule the allegation, but stated generally, “Taking all contentions which had been raised by movant, they would not support either singularly or collectively the claim of denial of effective assistance of counsel”, and the court concluded: “By any standard which one might employ, from the early harsh standard of ‘a farce and a mockery of justice,’ to the more recent pronouncement by the Missouri Supreme Court in Anderson v. State, 487 S.W.2d [455], l.c. 460 [quoting] * * *. In the instant case the record at evidentiary hearing that movant’s counsel was fully cognizant of his responsibilities and that the contentions now made are simply a complaint by way of hindsight as to what counsel should have done.” The findings and conclusion of the trial court are sufficient to rule the allegation. Brown v. State, 495 S.W.2d 690, 696 (Mo.App.1973); Bradley v. State, 494 S.W.2d 45, 49 (Mo. 1973).

The judgment is affirmed.


author: DIXON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Michael T. BLUMER, Defendant-Appellant.
    No. KCD 28658.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.
    John B. Schwabe, II, Columbia, for defendant-appellant.
    David M. Strauss, Asst. Pros. Atty., Boone County, Columbia, for plaintiff-respondent.
    Before SWOFPORD, P. J., PRITCHARD, C. J., and DIXON, J.
   DIXON, Judge.

Defendant appeals a judgment of conviction and sentence imposed for driving while intoxicated as proscribed by § 564.440, RSMo 1969. He asserts error in failure to instruct on driving with ten-hundredths of one percent or more by weight of alcohol in the blood (an offense proscribed by § 564.-439, RSMo Supp. 1975), claiming that it is a lesser included offense of driving while intoxicated. He also asserts error in the overruling of his objection and motion for mistrial made during the closing argument of the prosecutor. We affirm.

Since no claim is made that the evidence was insufficient, we will set forth only the facts necessary to show that a submissible case was made. On September 29, 1975, a Columbia, Missouri, policeman observed an automobile being driven over a curb while making a left turn. He continued to observe the vehicle swerve twice into the lane of oncoming traffic. The policeman stopped the car and asked the driver, the defendant, for his driver’s license. As defendant emerged from the car, the policeman observed that defendant was unsteady on his feet and that there was a moderate odor of intoxicants inside the vehicle and about the defendant. The results of two field sobriety tests (walking a straight line and putting finger to nose) indicated to the policeman that the defendant was intoxicated. The policeman placed the defendant under arrest for driving while intoxicated and took him to the police station. A breathalyzer test given shortly thereafter indicated fifteen-hundredths of one percent by weight of alcohol in the defendant’s blood.

The trial court refused defendant’s request for an instruction which would have allowed the jury to find defendant guilty of driving with ten-hundredths of one percent or more by weight of alcohol in the blood, an offense proscribed by § 564.439, RSMo Supp. 1975. Section 564.439 became effective September 28, 1975, and provides in pertinent part,

“1. No person shall drive a motor vehicle when the person has ten-hundredths of one percent or more by weight of alcohol in his blood. .
“2. Any person who violates5 the provisions of this section is guilty of a misdemeanor . . . .”

Section 564.440, RSMo 1969, under which defendant was charged, provides in pertinent part, “No person shall operate a motor vehicle while in an intoxicated condition. Any person who violates the provisions of this section shall be deemed guilty of a misdemeanor on conviction for the first two violations thereof, and a felony on conviction for the third and subsequent violations thereof . . . .”

The general method for determining whether an offense is a lesser included offense of another is to compare the essential elements of both offenses. If all the essential elements of the offense which is being considered for submission as a lesser included offense are found to coincide with some of the essential elements of the graver offense, the former will be a lesser included offense of the latter. State v. Friedman, 398 S.W.2d 37, 39 (Mo.App.1965); State v. Amsden, 299 S.W.2d 498, 504 (Mo.1957); Richardson, “Lesser Graded or Included Offenses,” p. 9, The Missouri Bar Committee Comments on Missouri Approved Criminal Instructions (1973). Therefore, if all of the essential elements of driving with ten-hundredths of one percent or more by weight of alcohol in the blood (§ 564.439, RSMo Supp. 1975) are found to coincide with some of the essential elements of driving while intoxicated (§ 564.440, RSMo 1969), then the former is a lesser included offense.

The essential elements of driving with ten-hundredths of one percent or more by weight of alcohol in the blood are (1) operating a motor vehicle, and (2) doing so with ten-hundredths of one percent or more by weight of alcohol in the blood. “For the purposes of determining the alcoholic content of a person’s blood under this section, the test shall be conducted in accordance with the provisions of sections 564.441, 564.-442, and 564.444.” Section 564.439(1), RSMo Supp. 1975. (Emphasis added.)

The essential elements of the offense of driving while intoxicated are (1) operating a motor vehicle, and (2) doing so while in an intoxicated condition. State v. Dodson, 496 S.W.2d 272, 273 (Mo.App.1973). In prosecutions for driving while intoxicated, it is permissible for laymen and experts to express their opinion that the defendant was intoxicated at the time in question. State v. Scaturro, 509 S.W.2d 491, 493 (Mo.App.1974); State v. Persell, 468 S.W.2d 719, 721 (Mo.App.1971). Although chemical test results are also admissible to show intoxication in a prosecution for driving while intoxicated (see: § 564.442,- RSMo Supp. 1972), such evidence is not needed to make a submissible case. State v. Thornton, 441 S.W.2d 738 (Mo.App.1969).

Applying the test outlined in State v. Friedman, supra, and State v. Amsden, supra, it becomes apparent that driving with ten-hundredths of one percent or more by weight of alcohol in the blood is not a lesser included offense of the offense of driving while intoxicated. To be sure, the first element of each offense, i. e., operation of a motor vehicle, is identical. However, the second element of § 564.439, RSMo Supp. 1975 (driving with ten-hundredths of one percent or more by weight of alcohol in the blood), does not coincide with any essential element of the offense of driving while intoxicated.

Ten-hundredths of one percent by weight of alcohol in the blood is a cold medical fact. Intoxication is a physical condition usually evidenced by unsteadiness on the feet, slurring of speech, lack of body coordination and an impairment of motor reflexes. As previously mentioned, intoxication can be proven either by opinion evidence or by chemical analysis of blood, breath, saliva, or urine (see: § 564.442, RSMo Supp. 1972), or by both. Consequently, the presence of ten-hundredths of one percent by weight of alcohol in a defendant’s blood is not an essential element of the offense of driving while intoxicated. Since this essential element of the offense proscribed by § 564.439, RSMo Supp. 1975, does not coincide with any essential element of the offense proscribed by § 564.440, RSMo 1969, the former offense is not a lesser included offense of driving while intoxicated, and the trial court was not obliged to instruct on it.

Defendant’s allegation of error in overruling his objection and motion for mistrial directed at remarks made by the prosecutor during closing argument is without merit. After stating that the evidence presented by the State was sufficient to find the defendant guilty of driving while intoxicated, the prosecutor asked the jury to send a message advising the public that drunk drivers are punished in Boone County. Defendant alleges that the trial court erred' in failing to sustain his objection to this comment and in failing to sustain his motion for mistrial directed at this comment.

Defendant recognizes that previous authority holds such remarks proper. See, e. g., State v. Harris, 413 S.W.2d 244, 248 (Mo.1967); State v. Jones, 384 S.W.2d 554, 560 (Mo.1964). Nevertheless, he disagrees with that authority and argues that the remarks were prejudicial due to their lack of relevance to his guilt or innocence.

This argument completely overlooks the two-fold duty of the jury. The jury sits not only to determine facts but also to determine punishment. The function of punishment for crimes serves a multitude of purposes, among which are retribution, and deterrence from crime of others who would be similarly disposed. The prosecutor’s remarks were directed to this latter jury function, especially that of deterrence. The trial court did not err in overruling defendant’s objection and motion for mistrial.

The judgment is affirmed.

All concur.


author: SWOFFORD, Judge.

text:
    STATE ex rel. MISSOURI POWER & LIGHT COMPANY, a corporation, Relator, v. The Honorable James T. RILEY, Judge of the Circuit Court of Cole County, Missouri, Nineteenth Judicial Circuit, Division No. 1, Respondent.
    No. KCD 28848.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.

      J. Steve Weber, Norman G. Curtwright, Jefferson City, for Missouri Power & Light Company, relator.
    Dale E. Sporleder, Jefferson City, Howard F. Sachs, Kansas City (Spencer, Fane, Britt & Browne, Kansas City, of counsel), for relator.
    Stanley P. Christopher, Deputy Counsel- or, Russell D. Jacobson, Associate Counsel- or, Kansas City, Jackson County, for amicus curiae, Jackson County.
    William M. Barvick, Jefferson City, for respondent.
    Paul W. Phillips, Asst. Gen. Counsel, for amicus curiae, Missouri Public Service Commission.
    Before PRITCHARD, C. J., and SHAN-GLER, DIXON, SWOFFORD, WASSER-STROM, SOMERVILLE and TURNAGE, JJ.
   SWOFFORD, Judge.

In January of 1975, the relator, Missouri Power and Light Company (MPL) filed with the Missouri Public Service Commission (Commission) two revised tariffs for the purpose of increasing rates for gas and electric service supplied to its customers. Various hearings and proceedings ensued before the Commission which resulted in orders on December 5, 1975 (to be effective December 17, 1975) disapproving the tariffs, as filed, but permitting MPL an increase in both its electric and gas rates.

Throughout the course of these proceedings, William M. Barvick actively participated as Public Counsel, and duly filed Motions for Rehearing before the Commission on December 16, 1975, which were denied on December 23, 1975. Thereafter and on January 21,1976, the Public Counsel filed a Petition for Review in the Circuit Court of Cole County, Missouri, and that court’s Writ of Review issued. In February, 1976, MPL, upon motion, was permitted to intervene in the review proceedings and filed a Motion to Dismiss Appeal upon the sole ground that Public Counsel of the State of Missouri “lacks authority to appeal an order or decision of the Public Service Commission.” This motion to dismiss was overruled and this proceeding followed and a preliminary rule in prohibition issued.

In this court, Jackson County, Missouri and the Commission were permitted to file briefs amicus curiae in which both supported the standing of Public Counsel to appeal the Commission’s decisions and urged that the preliminary rule in prohibition be discharged.

It is thus apparent that this proceeding does not involve the propriety of the Commission’s approval of rate increase for MPL, but rather, the sole and only issue here is whether or not the Public Counsel of Missouri had authority, under the law, to process an appeal or initiate a review proceeding in the circuit court of Cole County to test the validity and propriety of those orders.

Any resolution of this issue requires a recall of the basic and underlying principles of the need for governmental regulation of public service utilities. Historically, such controls were initially imposed by the legislatures as a result of an inevitable recognition that the operation of public utilities necessarily affected the public’s interest and welfare. Some form of governmental control was required — control that on the one hand, would not stifle free enterprise or force such utilities out of profitable operations or suppress capital investment, and on the other hand, would protect the consumer-public. In short, the legislation was intended to create a quasi-judicial administrative forum to weigh the legitimate interest of the utilities with that of the consumer-public so as to maintain the essential services and operations at fair and reasonable levels and rates.

When ⅛⅞ Missouri Public Service Commission wés created by the Legislature in 1913, the office of General Counsel was established (Laws 1913, p. 562), and his duties were initially confined to represent and appear for it in all actions and proceedings in support of its orders and decisions. Ten years later, Laws 1923, p. 330, the duties of the General Counsel were expanded by the following:

“In addition to the foregoing duties, it is hereby expressly made the duty of the general counsel to represent the public in all rate hearings before the Commission at its office, and he shall, upon request, give to the public and any municipality advice and opinions as to their rights under the public service commission law and the legal methods and procedure for obtaining same.”

This statute has remained unchanged since its enactment in 1913 and the 1923 amendment. Section 386.080, RSMo 1969.

The General Counsel thus was given two areas of responsibility: First, a duty to act as attorney for the Commission, including the defense of the Commission’s rulings and decisions; and second, the duty to represent the public in proceedings before the Commission. While these duties were not always inconsistent, it is readily apparent that occasions were likely to arise where the inconsistency would be violent and insuperable. For example, the General Counsel could not consistently appeal from a Commission decision which he was duty bound to defend.

This conflict was made pointedly apparent in the case of State ex rel. McKittrick v. Missouri Public Service Commission, 352 Mo. 29, 175 S.W.2d 857 (banc 1943). In that case, the court held that the Attorney General did not have the right to appeal from a Commission decision since he did not have the right to intervene in the proceeding before the Commission on behalf of the general public whose interests were there exclusively represented, under authority of the statute, by the General Counsel. The dilemma thus presented was that, although the General Counsel was possessed by statutory mandate with the duty to represent the public, he was shackled, in many instances, from offering effective representation by reason of his first priority to support the Commission’s decision. And, under McKittrick, the Attorney General was precluded from assuming the role of public representative because that duty was imposed by statute upon the General Counsel.

During the years when utility rates were low and sources of energy were thought to be plentiful thére was generally little public or legislative concern regarding the interests of the broad class of public consumers with reference to utility regulation or the adequacy of their representation in proceedings before the Commission or the courts which affected the rates charged and the services afforded them.

With the combination of energy shortages, inflation and soaring utility rates, public interest and concern became increasingly apparent. It was obvious that some form of active and effective consumer participation in the regulation of public utilities was essential.

“ * * * [T]o provide for improved accountability in performance of service to the citizens of the state”, the General Assembly passed the Omnibus State Reorganization Act in 1974. Senate Bill No. 1 of the 1st Extraordinary Session of the 77th General Assembly, Appendix B, Vol. 3A, 1976 Pocket Parts, VAMS (hereinafter referred to as OSRA).

Section 4(5) of OSRA provides:

“(5). The powers, duties and functions vested in the general counsel to the public service commission, chapter 386 RSMo and others, are transferred by type II transfer to the department of consumer affairs regulation and licensing. The general counsel shall be appointed by the director of the department and all other employees of the office, except the general counsel and his secretary, shall be selected by the counsel in accord with chapter 36 RSMo. Funding for the general counsel’s office shall be by general revenue.”

and Section 4(6) of OSRA provides:

“(6). The public service commission is authorized to employ such staff as they deem necessary for the functions heretofore performed by the general counsel other than those powers, duties and functions relating to representation of the public before the public service commission.” (Emphasis supplied)

There is no real dispute between the parties here that these sections of the OSRA effectively transferred from the General Counsel to the Public Counsel the obligation and responsibility of the former to the latter to represent the public before the Commission. However, the relator strongly urges that those “powers, duties and functions” do not include the right of Public Counsel to appeal or seek review from the Commission’s orders allowing the MPL rate increases.

Section 386.500(1), RSMo 1969, provides that,

“After an order or decision has been made by the Commission any corporation or person or public utility interested therein shall have the right to apply for a rehearing in respect to any matter determined therein, * * *.” (Emphasis supplied)

and that such application for a rehearing (and its denial) are conditions precedent to the right of judicial review.

Section 386.510, RSMo 1969, provides the procedural methods for filing of a petition for review in the circuit court, after the Commission acts upon a motion for rehearing.

In reviewing the effect of these statutes the court in State ex rel. McKittrick v. Missouri Public Service Commission, supra, stated at l. c. 860:

“ * * * It is evident that the foregoing provisions contemplate the party applying for a rehearing, writ of review or an appeal shall be a party to the record, interested and aggrieved * * *.” (Emphasis supplied)

The right and duty of the Public Counsel to appear in behalf of the public (here the consumers of the gas and electric services afforded by MPL) at the proceedings before the Commission as a party of record is not questioned. Neither is any claim made that he failed to properly follow the statutory procedures to obtain judicial review of the Commission’s orders permitting rate increases. As previously noted, the sole claim of MPL is that he lacked statutory authority to process the review and that his duty to represent the public-consumer’s interests, as a class, before the Commission did not include any duty to protect those same interests by review proceedings. This position if adopted would leave the public without recourse, protection, remedy or representation beyond the proceedings before the Commission and would effectively withdraw from them the benefits of statutory judicial review of the Commission’s rulings and decisions in all cases where their interests were initially represented at the Commission level by the Public Counsel. Such a result would do violence to the clear historical purpose and intent of applicable law with reference to regulation of public utilities and the protection of public interest. Did the legislature intend such a result when it created the office of Public Counsel, Department of Consumer Affairs, Regulation and Licensing under OSRA?

This court in searching for the answer to that question is guided by certain well established rules and recognized principles. Paramount among these is that the statute must be viewed in the light of the circumstances of the time when the statute was passed and the goal or purpose it sought to achieve and the conditions it sought to remedy. Central Bank of Clayton v. State Banking Board, 509 S.W.2d 175, 182[2] (Mo.App.1974).

Other rules to be employed in the search for legislative intent have been expressed in many cases and include (a) the legislative purpose should be assumed to be a reasonable one; (b) laws are presumed to have been passed with a view to the welfare of the community; (c) it was intended to pass an effective law, not an ineffective or insufficient one; and (d) it was intended to make some change in the existing law. In re Estate of Tompkins (Hall v. Carpenter), 341 S.W.2d 866, 872[8] (Mo. banc 1961); Cohen v. Poelker, 520 S.W.2d 50, 52 (Mo. banc 1975), and cases cited therein.

Under the searchlight of any of these rules, it was clearly the intent of the legislature in the creation of the office of Public Counsel to divorce his functions from those of the General Counsel for the Commission; to place them in adversary positions where the facts of a situation warranted; to impose upon the Public Counsel the duty to represent the interests of the public and as a concomitant thereof clothe him with the power to adequately represent them; and, thus to achieve a fair balance of rights as between the public interest on the one hand and private interests on the other.

To ascribe any other intent, as here urged by MPL, and to hold that the Public Counsel’s duties and powers did not include the right to seek judicial review would be to charge the legislature with the enactment of an unreasonable, ineffective and insufficient law, destructive of its underlying purpose and “the spirit of the act”, State ex rel. Jackson County v. Public Service Commission, 532 S.W.2d 20, 29[3] (Mo. banc 1975); State ex rel. Dravo Corporation v. Spradling, 515 S.W.2d 512, 517[5] (Mo.1974); Laclede Gas Co. v. City of St. Louis, 363 Mo. 842, 253 S.W.2d 832, 835[3] (banc 1953); St. Louis Southwestern Railway Co. v. Loeb, 318 S.W.2d 246, 252[1] (Mo. banc 1958).

Further support for the position here taken is found in the rule that the construction placed upon the statutes by those charged with their administration be accorded strong consideration. State ex rel. Jackson County v. Public Service Commission, supra, at l. c. 28[1]; Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193, 197[3] (Mo. banc 1972). In the case at bar, both the Public Counsel and the Commission, through its General Counsel, forcefully argue that under the present state of the law the Public Counsel has the right and duty to seek judicial review of the Commission’s decisions.

In an attempt to support its contention MPL relies heavily upon the fact that the original proposed OSRA Act contained a provision which specifically stated:

“The public counsel shall, where the public interest will be served, represent the public in all utility and motor carrier matters before regulatory agencies and on appeal.”
(Senate Bill No. 1, 77th General Assembly, First Extraordinary Session, December 3, 1973 at pp. 16-17)

OSRA when finally written into the law did not contain this provision but simply transferred the authority and duties theretofore lodged in the General Counsel with reference to the public interest to the newly created office of Public Counsel by Section 4(5), supra. MPL argues that since this proposed provision was not enacted the legislature clearly intended that the Public Counsel be denied the right of appeal or review. Such reasoning cannot be accepted for several reasons.

It can be argued ¿with equal logic that the legislature failed to enact this provision because it felt that it was unnecessary and that a simple transfer of the General Counsel’s duties, pertaining to public interest, to the Public Counsel accomplished the same objective. Further, in the following legislative session, 1976, among other amendments proposed to OSRA was included the following:

“Nothing in this act shall be construed or interpreted to mean that the public counsel shall not have the right to appeal any and all orders of the public service commission which right of appeal exists and has existed since the time of transfer.” (Emphasis supplied)
(Journal of the House, Second Regular Session of the 78th General Assembly, Id. at 1322)

The bill containing this (and other amendments to OSRA) passed the House and found its way to the Senate calendar but was not voted upon in the final week of April, 1976, because it could not be reached before adjournment. It does, however, express a clear legislative purpose that the original OSRA was intended to permit the Public Counsel the right of review just as any other interested party to Commission proceedings is permitted to do by following procedural methods.

One of the accepted canons to be applied when a court is called upon to construe a statute “permits and often requires an examination of the historical development of the legislation including changes therein and related statutes”, State ex rel. Klein v. Hughes, 351 Mo. 651, 173 S.W.2d 877, 879[3] (1943); State ex rel. Smith v. Atterbury, 364 Mo. 963, 270 S.W.2d 399, 405[7] (banc 1954), and in so doing resort may be had to the Journals of the legislature and the original bill and amendments, Bullington v. State, 459 S.W.2d 334, 338[1] (Mo.1970), all as bearing upon legislature.

It is provided by Article V, Section 22, of the Constitution of Missouri:

“All final decisions, findings, rules and orders of any administrative officer or body existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law; * * * ”

This provision has been held to guarantee the right of judicial review as a constitutional guarantee as opposed to a statutory right subject only to the conditions precedent that the party is properly before the administrative body and complies with the statutory methods to secure judicial review. State ex rel. Summers v. Public Service Commission, 366 S.W.2d 738, 742[5] (Mo.App.1963); Warnecke v. State Tax Commission, 340 S.W.2d 615, 618[3] (Mo. 1960); State ex rel. Burns v. Stanton, 311 S.W.2d 137, 140[2] (Mo.App.1958).

Such party seeking review need not have a direct pecuniary or property right involved but only such interest as would require that he be heard before the administrative body (here the Commission). State ex rel. Consumers Public Service Co. v. Public Service Commission, 352 Mo. 905, 180 S.W.2d 40, 45[4] (banc 1944); State ex rel. Crown Coach Company v. Public Service Commission, 239 Mo.App. 198, 185 S.W.2d 347, 356[1, 2] (1944).

MPL relies heavily upon the case of Bosley v. Dorsey, 191 Md. 229, 60 A.2d 691 (Court of Appeals 1948), wherein the Maryland court held that a Public Counsel had no right to appeal, under facts similar to the case at bar. This court is urged to adopt the principles of Bosley as the law in Missouri and, while that decision is not, of course, binding here, it has been carefully analyzed and found to be inapposite and not persuasive. It will not be followed.

In summary, the conclusion is reached that the Public Counsel had the obligation and duty imposed by statute to appear as a party of record in the proceedings before the Commission and he did so; he was and is an “interested” party within the meaning of Section 386.500(1); as such he fully complied with all of the procedural requirements to perfect a review of the Commission’s decisions allowing MPL gas and electric rate increases; that in so doing, he performed the duties of his office as intended by the legislature and guaranteed by the Missouri constitution; and, that the respondent had and has full and complete jurisdiction over the review proceedings and properly overruled MPL’s motion to dismiss such proceedings.

Accordingly, the preliminary rule in prohibition is discharged.

All concur.

      . For a definition of “type II transfer” see OSRA 7(l)(b).

      . This officer is denominated herein by all of the parties on the briefs as “Public Counsel” and, in fact, is the Public Counsel, Department of Consumer Affairs Regulation and Licensing, in this matter, Mr. William M. Barvick.