author: McDONALD, Chief Justice.

text:
    Hardy L. BRIAN, Appellant, v. Harold G. ADAMS, Appellee.
    No. 5447.
    Court of Civil Appeals of Texas, Waco.
    July 5, 1975.
    Rehearing Denied July 10, 1975.

      Odeneal & Odeneal, William C. Odeneal, Jr., Dallas, for appellant.
    Norman P. Hines, Jr., Dallas, for appel-lee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Brian from judgment against him for $1400 (plus interest) in favor of plaintiff Adams.

Plaintiff, an attorney filed suit on September 29, 1972, against defendant alleging defendant in August, 1970, employed plaintiff to represent defendant’s son in a criminal case, and agreed to pay plaintiff $2500. attorney’s fees; that $1000. was paid down, and defendant agreed to pay the balance: $100. in September, 1970; $100. in October, 1970; $100. in November, 1970; $100. in December, 1970; $100. in January, 1971; $400. in February, 1971; $300. in March, 1971; and $800. in April, 1971.

Plaintiff alleged the $100. due in September, 1970, had been paid, but that the balance of $1400. was past due, unpaid, and that defendant refused to pay same. Plaintiff prayed for judgment for such $1400. plus interest.

Defendant answered among other matters that plaintiff’s claim was barred by the Two Year Statute of Limitations.

Trial was to a jury. Prior to submission of the case to the jury defendant filed motion and second motion for instructed verdict on the ground plaintiff’s claim was barred as a matter of law by the Two Year Statute of Limitations.

The trial court overruled such motions and submitted the case to the jury on special issues, pertinent of which issues, and the jury’s findings thereon are summarized as follows:

1) Defendant employed plaintiff to perform legal services for defendant’s son.
2) Defendant agreed to pay plaintiff $2500. for such legal services.
3) Defendant agreed to pay such $2500., $1000. as a down payment, $100. in September, 1970; $100. in each of October, November and December 1970; $100. in January, 1971, $400. in February, 1971, $300, in March, 1971, and $300. in April, 1971.
4) Defendant received benefit from the legal services of plaintiff in representing defendant’s son.
5) Plaintiff “claimed a total of $1400. was due from defendant on or about September 21, 1970.”

The trial court rendered judgment on such verdict for plaintiff for $1400. plus interest.

Defendant appeals on 2 points contending:

1) The trial court erred in not sustaining his motions for instructed verdict on the ground of defendant’s plea of the Two Year Statute of Limitations as a matter of law.
2) The trial court erred in not rendering judgment for defendant on the jury verdict in which the jury found that plaintiff claimed a total of $1400. “was due” from defendant on September 21, 1970.

There is evidence that on August 28, 1970, plaintiff and defendant had a meeting at which they agreed that plaintiff would represent defendant’s son for a $2500. fee to be paid plaintiff by defendant as follows: $1000. down; $100. during each of the months of September, October, November, December, 1970, and January 1971; $400. in February, 1971; and $300. in March and April, 1971. There is evidence defendant paid plaintiff the $1000. and the $100. which was to be paid in September, 1970, but that he defaulted in all of the other payments. There is evidence that plaintiff sent defendant a statement on September 21, 1970, showing a balance “due” of $1400.

Plaintiff filed this suit on September 29, 1972.

Article 5526 Vernon’s Ann.Tex.Civ.St. provides there shall be commenced and prosecuted within two years after the cause of action shall have accrued all actions where the debt is not evidenced by a contract in writing.

The jury found that defendant agreed to pay the $1400. sued for in October, November, December, 1970, and in January, February, March and April, 1971.

Plaintiff filed this suit on September 29, 1972, thus the Two Year Statute of Limitations had not run.

On September 21, 1970, plaintiff sent defendant a statement reading as follows:

The jury found in Issue 5 that plaintiff “claimed a total of $1400. was due from defendant on or about September 21,1970.”

Defendant asserts that since plaintiff claimed the $1400. balance was due on September 21, 1970, that the Two Year Statute of Limitations bars recovery.

The statement above does not claim the $1400. was due immediately or due according to a schedule of payments (as testified to by plaintiff and found by the jury).

Black’s Law Dictionary, Fourth Edition, defines due to import a fixed and settled obligation or liability, but with reference to the time for its payment there is ambiguity in the use of the term.

And Bouvier’s Law Dictionary, Eighth Edition, recites “The word ‘due’ unlike ‘ar-rear’ has more than one signification, and expresses two distinct ideas. At times it signifies a simple indebtedness without reference to the time of payment; at other times it shows that the day of payment has passed.”

In the case at bar it was the trial court’s duty, as it is ours, to harmonize the jury findings, if possible. We have before us the original statement sent by plaintiff to defendant on September 21,1970, and set out above.

In view of the findings supported by ample evidence that the unpaid balance of $1400. on the attorney’s fee due plaintiff was due in installments commencing in October, 1970, and ending in April, 1971, plaintiff’s suit filed on September 29, 1972, was not barred by the Two Year Statute of Limitations; and we hold' that the statement plaintiff sent defendant, and the jury’s findings do not bring plaintiff’s claim within the bar of the Two Year Statute of Limitations.

Both points are overruled.

Affirmed.


source: Caselaw Access Project

author: EVANS, Justice.

license: Public Domain

text:
    Merle G. FULTON, Appellant, v. Jeannette DUHAIME, Appellee.
    No. 16503.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 29, 1975.
    Rehearing Denied July 10, 1975.

      McAnineh & Hagerty, Lawrence C. Hag-erty, Houston, for appellant.
    Bates, Morgan, Madeksho & McCool, Gordon McCool, Houston, for appellee.
   EVANS, Justice.

Appellee, Jeannette Duhaime, brought this action against her former husband, Merle G. Fulton, to partition military retirement benefits which she alleged had accrued by reason of his military service during their marriage and therefore constituted community property which had not been awarded to either party upon their divorce. The trial court granted Mrs. Du-haime’s motion for summary judgment and awarded her the sum of $2652.00 as her share of retirement benefits received by Mr. Fulton subsequent to their divorce and judgment for one-half of all future payments of such benefits as and when received by Mr. Fulton.

In his first point of error Mr. Fulton asserts error of the trial court in granting the summary judgment because, as a matter of law, the military retirement benefits were not community property. Based on this premise he also argues his second point of error that the trial court lacked jurisdiction over the subject matter and that it could not partition Mr. Fulton’s separate property. Mr. Fulton argues, under these points, that the court should have considered the sworn statements contained in his motion for new trial as raising a factual issue as to whether the parties resided in a community property state at the time the military retirement benefits accrued and became vested.

The summary judgment proof conclusively established that the military retirement benefits accrued during the seventeen years of the parties’ marriage and vested prior to their divorce. Busby v. Busby, 457 S.W.2d 551 (Tex.1970); Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App. — San Antonio 1968, writ dism’d). This evidence created a rebuttable presumption that the property was community in nature at the time of the divorce. Texas Family Code Ann. § 5.02, V.T.C.A. (1973); Tarver v. Tarver, 394 S.W.2d 780 (Tex.1965). Further, Mr. Fulton expressly admitted in his sworn controverting affidavit to the motion for summary judgment that he “knew at the time of my divorce that said benefit was community property.” Upon this state of the record the trial court properly determined on hearing the motion for summary judgment that as a matter of law the military retirement benefits constituted the community property of the parties at the time of their divorce.

Mr. Fulton argues, however, that the trial court erred in not considering the sworn statements contained in his motion for new trial as creating a fact issue in the case as to whether the benefits were separate or community in nature. One month following the hearing and rendition of summary judgment, but before the entry of the judgment, Mr. Fulton filed his motion for new trial in which he stated under oath that at the time the military benefits had vested neither party had lived in a state which recognized community property. He further stated that his answers to interrogatories were based upon his mistaken belief that the benefits were community property.

The motion for new trial was not supported by affidavits and Mr. Fulton’s statements, although sworn, were merely part of a pleading in the case. These statements would not suffice as summary judgment proof even if the motion had been before the court at the time of the summary judgment hearing. Hidalgo v. Surety Savings & Loan Association, 462 S.W.2d 540 (Tex.1971). Generally, affidavits filed with a motion for new trial come too late, as the trial court is charged only with the duty of considering the record as it appears when the motion for summary judgment is heard. Rule 166 — A, Texas Rules of Civil Procedure; Superior Stationer’s v. Berol Corp., 483 S.W.2d 857 (Tex.Civ.App. — Houston [1st] 1972, no writ). A motion for new trial based upon newly discovered evidence may be considered after the hearing of the motion for summary judgment, but the motion for new trial must be supported by affidavits containing admissible, competent evidence. Jacobi v. Texas Board of Medical Examiners, 308 S.W.2d 261, 265 (Tex.Civ.App. — Waco 1957, writ ref’d n. r. e.); McDonald, Texas Civil Practice, Vol. 4, Sec. 18.16.1, p. 285. Thus, the case relied upon by the appellant, City of Mesquite v. Scyene Investment- Co., 295 S.W.2d 276 (Tex.Civ. App. — Dallas 1956, writ ref’d n. r. e.), may be distinguished, if for no other reason, on the ground that the City of Mesquite, in that case, attached to its motion for new trial an affidavit in proper form.

Although Mr. Fulton argues, under his third point of error, that the trial court erred in not conducting a hearing on his motion for new trial, a letter from Mr. Fulton’s attorney to the District Court, contained in the supplemental transcript, recites that a hearing was held on the motion for new trial and that the motion was denied. The record indicates no ruling of the court with respect to the motion and it apparently was overruled by operation of law. It was appellant’s burden as proponent of the motion to present it to the court. Rule 329b, T.R.C.P.; McDonald, Texas Civil Practice, Vol. 4, Sec. 18.06.3, p. 247. The record indicates only that the motion was heard and denied by the court. There is no showing that the trial court refused to afford Mr. Fulton a hearing on the motion for new trial.

In his final point of error Mr. Fulton complains that the trial court erred in its failure to file findings of fact and conclusions of law pursuant to his request. It has repeatedly been held that such findings and conclusions have no place in a summary judgment case. Gallop v. Seagoville Investments, Inc., 417 S.W.2d 727 (Tex.Civ.App.— Dallas 1967, writ ref’d n. r. e.); Kovac v. Hicks, 416 S.W.2d 496 (Tex.Civ.App. — Eastland 1957, writ ref’d n. r. e.).

The judgment of the trial court is affirmed.


author: TUNKS, Chief Justice.

text:
    The GARY SAFE COMPANY, Appellant, v. TRANSPORT INSURANCE COMPANY, Appellee.
    No. 1174.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 2, 1975.
    Rehearing Denied July 23, 1975.

      Frank G. Jones, Houston, for appellant.
    Henry P. Giessel, Alice Giessel, Talbert, Giessel & Stone, Wayne Fisher, Fisher, Roch & Gallagher, William C. Book, Pomer-oy & Tekell, Michael 0. Connelly, Butler, Binion, Rice, Cook & Knapp, Houston, for appellee.
   TUNKS, Chief Justice.

The Gary Safe Company was the shipper of a safe, which was transported by Bras-well Motor Freight Lines, Inc., a common carrier. Malloy’s Sweda Cash Registers, Inc. was the consignee of the safe. When the safe reached its destination, Truitt Reynolds, an employee of Braswell, was helping to unload it when it fell on him. Reynolds sued Gary and Malloy’s for damages for the personal injuries he sustained.

Transport Insurance Company issued both a workmen’s compensation policy and a comprehensive liability policy, in which Braswell was the named insured. Under its workmen’s compensation policy Transport paid benefits to Reynolds. Transport intervened in the suit filed by Reynolds seeking reimbursement for the compensation benefits it had paid to Reynolds. Thereupon, both Gary and Malloy’s filed cross-actions against Transport alleging that they were insureds under the comprehensive liability policy issued by Transport to Braswell. Transport filed a general denial to each of the cross-actions and a motion for summary judgment as to both. Gary, but not Mal-loy’s, filed a motion for summary judgment on its cross-action against Transport. After a hearing the trial court granted Transport’s motion for summary judgment against Gary and Malloy’s and denied Gary’s motion for summary judgment against Transport. The summary judgment on the’ cross-actions was severed. Gary, but not Malloy’s, has appealed.

With reference to the persons insured under the comprehensive liability policy issued by Transport to Braswell, the following language of that policy is controlling as to this case:

Each of the following is an insured under this insurance to the extent set forth below:
(c) any other person while using an owned automobile . . . with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, but with respect to bodily injury or property damage arising out of the loading or unloading thereof, such other person shall be an insured only if he is:
(1) a lessee or borrower of the automobile, or
(2) an employee of the named insured or of such lessee or borrower;

The question to be determined is whether Gary was a “lessee or borrower” of Bras-well’s truck, in which the safe had been transported and from which it was being unloaded. We hold that Gary was not a lessee or borrower and affirm the judgment of the trial court. National Auto. & Cas. Ins. Co. v. Glens Falls Ins. Co., 493 S.W.2d 909 (Tex.Civ.App. — Tyler 1973, no writ), involved the construction of an insurance policy with similar language. Glens Falls had issued a policy on a truck which excluded coverage when the defendant was the owner of the premises at which the truck was being unloaded, unless the defendant was a “bailee or borrower” of the truck. The driver of the truck was injured while the truck’s cargo was being unloaded on the premises of the consignee of the cargo. The truck driver sued the consignee. The Court held that the consignee was not covered by the Glens Falls policy because it was the owner of the premises at which the truck was being unloaded when the injury occurred. Although the Court did not discuss the matter in its opinion, if the consignee had been a bailee or borrower of the truck, the exclusionary provision would not have applied and it would have been an insured under the policy.

In Prudhomme v. Vancouver Plywood Co., La.App., 240 So.2d 587 (1970), it was held that one engaged in the loading of another’s truck was not a bailee or borrower of the truck so as to be an insured under the policy covering the truck.

In Walter S. Kozdranski Co., Inc. v. Jamestown M. Ins. Co., 40 A.D.2d 187, 338 N.Y.S.2d 634 (1972), ait’d mem., 34 N.Y.2d 542, 354 N.Y.S.2d 104, 309 N.E.2d 873 (1974), a declaratory judgment action was brought to determine whether, under the facts of the case, an insurer was liable under the loading and unloading provision of an automobile policy. Kozdranski contracted with the Stauffer Chemical Company to supply a backhoe and truck to clean out a sludge pit on Stauffer’s premises. Kozdranski arranged with Gross Plumbing & Heating Co., Inc. for Gross to supply a truck to be used at the site to assist Koz-dranski’s backhoe operator, Chapman, in removing the sludge waste. An accident occurred while the backhoe was being used to remove the sludge and an employee of Stauffer, who was not engaged in the operation at the time, was killed. The employee's survivor and Chapman sued Kozdran-ski, and brought a declaratory judgment action to determine their rights and obligations under the insurance policies issued to Kozdranski and Gross, respectively. Under the facts of the ease, the Court held that Kozdranski was a lessee or borrower of the Gross dump truck. In addition, the Court held that under the facts of the case, the alleged negligence occurred during the loading and unloading of the truck. The facts held by the Court to constitute a lessee-lessor situation were that Kozdranski paid by the hour for the services’ of the truck and driver, that the truck was to be used only as directed by Kozdranski’s backhoe operator, and that Gross was to bill Kozdranski at the end of the month for the number of hours that the truck and driver were at Stauffer’s site.

In White v. Great American Insurance Co. of New York, 343 F.Supp. 1112 (M.D.— Ala.1972), a summary judgment case, a truck driver for Arrow Truck Lines was injured during the loading of an Arrow truck by employees of Union Camp Corporation on the latter’s premises. Union Camp’s general liability insurer brought an action for reimbursement against Arrow’s insurer claiming coverage for the Union Camp employees under the loading and unloading provision of Arrow’s policy. The Court held that the Arrow truck was leased or borrowed under the policy provision. The Court said: “At the time of the accident, the truck was in the possession of Union Camp for purposes of loading the consignment. Union Camp was paying Arrow for delivery of the consignment. The truck was either leased or borrowed for the purpose of loading.” Id. at 1119.

Although the holding in White seems to support appellant’s contention, that case is factually distinguishable from the case at bar. In White the truck was in the possession of Union Camp for purposes of loading the consignment and was actually in the process of being loaded by Union Camp’s employees at the time of the accident. That case might factually support the claim made by Malloy’s in the trial court, since it was the consignee upon whose premises and by whose employees the safe was being unloaded at the time the accident occurred. However, Malloy’s did not appeal from the summary judgment rendered by the trial court. Moreover, the Court in National Auto. & Cas. Co. v. Glens Falls Ins. Co., supra, held under a similar fact situation that the consignee' was not an additional insured of the common carrier. The decision in Kozdranski is also clearly distinguishable on its facts from the case at bar. There, the facts showed that Kozdranski had actually entered into a lease agreement with the owner of the insured truck, and that at the time of the accident, the truck’s driver was being directed by a Kozdranski employee.

We hold that the summary judgment evidence shows, as a matter of law, that the Gary Safe Company was not a lessee or borrower of the Braswell delivery truck at the time of the accident, and, therefore, was not entitled to coverage under the loading and unloading provision of the comprehensive liability policy issued to Braswell. This holding is supported by the holding in National Auto. & Cas. Ins. Co. v. Glens Falls Ins. Co., supra, which involved a policy provision similar to the one at issue in this appeal.

Affirmed.


author: PALMORE, Justice.

text:
    KENTUCKY BOARD OF TAX APPEALS et al., Appellants, v. CITIZENS FIDELITY BANK AND TRUST COMPANY, Executor of the Estate of Lois Don Clancy, Deceased, Appellee. CITIZENS FIDELITY BANK AND TRUST COMPANY, Executor of the Estate of Lois Don Clancy, Deceased, Cross-Appellant, v. KENTUCKY BOARD OF TAX APPEALS et al., Cross-Appellees.
    Court of Appeals of Kentucky.
    June 20, 1975.

      William P. Sturm, Legal Staff, Dept, of Revenue, William S. Riley, Asst. Atty. Gen., Dept, of Revenue, Frankfort, for appellants and cross-appellees.
    Edwin G. Middleton, Middleton, Reutlinger & Baird, Louisville, for appellee and cross-appellant.
   PALMORE, Justice.

This case involves the construction and constitutional validity, under the equal protection clause of the 14th Amendment, of KRS 140.040, which applies to powers of appointment.

The appellee and cross-appellant, Citizens • Fidelity Bank and Trust Company (hereinafter called the executor), is executor of the will of Lois Don Clancy, who died in 1962 a resident of Kentucky. Mrs. Clancy was the life beneficiary with power to appoint the remainder under two trusts, one created by the will of Harriett M. Don, who died a resident of New York in 1921, and the other by the will of Julia H. Morrison, who died a resident of New York in 1926. The assets of these trusts were located in New York and the trusts were administered by a New York trustee. By her will Mrs. Clancy exercised the powers of appointment in favor of her daughter, whereupon the assets of the trusts were relinquished to the appointee.

The Kentucky Department of Revenue assessed inheritance taxes against the daughter on the basis that the transfers under the powers of appointment were taxable as having taken place at Mrs. Clancy’s death, and that the assets thus transferred should be aggregated with the other property left by Mrs. Clancy out of her own separate estate to the daughter for the purpose of determining the exemption and rates applicable to this separate property that passed to the daughter apart from the operation of the powers of appointment.

Following an unsuccessful appeal to the Board of Tax Appeals the executor appealed to the Franklin Circuit Court.

The executor contended first that KRS 140.040 is constitutionally invalid, hence no inheritance tax is collectible by Kentucky on the property (hereinafter called the appointive property) that passed by virtue of the powers of appointment, and secondly, if it be mistaken in that respect, that the appointive property should be taxed separately from, and not aggregated with, the other property willed by the testatrix to her daughter. The trial court was not convinced by the constitutional argument but upheld the executor on the alternative point, whereupon the taxing authorities appealed and the executor cross-appealed to this court. Our conclusion is that the position of the taxing authorities was correct on both points.

Subsection (2) of KRS 140.040 provides that when a power of appointment “passes to the donee thereof at the death of the donor, under any instrument, and if the donor dies on or after April 24, 1936, the transfer shall be deemed to take place, for the purpose of taxation, at the time of the death of the donor and the assessment be made at that time against the life interest of the donee and the remainder against the corpus. The value of the property to which the power of appointment relates shall be determined as of the date of the death of the donor and shall be taxed at the rates and be subject to the exemptions in effect at the death of the donor. . . . It is further provided that the remainder interest passing under the donee’s power of appointment . . . shall be added to and made a part of the distributable share of the donee’s estate for the purpose of determining the exemption and rates applicable thereto.”

Subsection (3) of KRS 140.040 provides that “in all cases other than that described in subsection (2) the transfer shall be deemed to take place, for the purpose of taxation, at the time of the death of the donee. In such cases, the value of the property to which the power of appointment relates shall be determined as of the date of the death of the donee and shall be taxed at the rates and be subject to the exemptions in effect at the death of the donee.”

The executor’s constitutional argument centers on the proposition that the statute creates two classes of appointees who are similarly situated except for the date of the death of the donor at whose death the power passed to the donee, and that there is no reasonable basis for differentiation between those who take under powers created prior and subsequent to April 24, 1936.

To preview the following discussion, our response to this argument is (1) that the real classification effected by the statute depends on the taxability of the transfer by this state at the death of the donor, and (2) that April 24, 1936, is a reasonable basis for differentiation because that is the date on which transfers through appointment first became taxable in Kentucky at the death of the donor.

As it appears in its present form KRS 140.040 was last amended by Ch. 96, Acts of 1948. Its evolution prior to that time is set forth in Allen’s Ex’r v. Howard, 304 Ky. 280, 200 S.W.2d 484 (1947), but for the sake of convenience we shall again summarize it here.

Between 1906, when first enacted (Ch. 22, Acts of 1906), and 1924 the inheritance tax statutes did not include any special provision for powers of appointment. Contingent and conditional interests were then taxed “at the highest rate which upon the happening of any said contingencies or conditions would be possible,” and the tax was “due and payable forthwith . . . out of the property transferred.” Carroll’s Ky.Stat., § 4281a — 1a (1922). A prospective beneficiary could, however, defer payment by executing bond. Id., § 4281a-2.

What is now the main portion of KRS 140.040(1) was enacted by Ch. Ill, Acts of 1924, and became § 4281a-l, subsection 3, Carroll’s Ky.Stat. It provided in substance that whenever any person exercised a power (regardless of when or where created) the appointment was to be considered a taxable transfer in the same manner as if the appointive property had belonged to the donee in his own right, and that the same principle was to apply to the perfecting of a remainder interest through the donee’s failure to cut it off by exercising his power.

Trouble arose with the passage of Ch. 8, Acts of the Third Extra Session, 1936, which became effective on April 24, 1936. Without otherwise changing the language of the section as it had been enacted in 1924, § 1(3) of the 1936 act simply added the following proviso (emphasis added):

“Provided that . . . the transfer shall be deemed to take place, for the purpose of taxation, at the time of the death of the donor and the assessment be made at that time against the life interest of the donee and the remainder against the corpus and collection thereof shall be made ” from the executor of the donor’s estate.

In short, as amended in 1936 the statute said that the testamentary exercise or non-exercise of a power of appointment should be deemed a transfer from and out of the estate of the donee of the power, but for tax purposes would be treated as taking place at the death of the donor and would be taxed at that time.

In retrospect at least, two inferences from the 1936 amendment seem obvious and unavoidable. One is that since the tax was to be assessed and collected at the donor’s death the amendment could not apply if the donor’s death had occurred before the amendment was enacted. The other is that since transfers by nonresident donors generally are not taxable by this' state the amendment could not have been intended to apply to powers created by nonresident donors. Nonetheless, and despite the revenue department’s protests to the contrary, the obvious presented no insurmountable obstacle to this court. It held in Reeves v. Fidelity & Columbia Trust Co., 293 Ky. 544, 169 S.W.2d 621 (1943), that if the donor had died before the effective date of the 1936 amendment the tax should be collected at the time of the donee’s death but at the rates that had been in force at the time of the donor’s death, and in Ream v. Dept, of Revenue, 314 Ky. 539, 236 S.W.2d 462 (1957), it came to the same conclusion with respect to the 1946 exercise of a power created by the will of a donor who had died a resident of Connecticut in 1924. Under these decisions, if the transfer was not taxable by this state at the donor’s death it was taxed at the donee’s death but at its value and at the rates applicable as of the time of the donor’s death.

Meanwhile, Ch. 204, Acts of 1942, added a further sentence providing that the appointive property shall be aggregated with and considered a part of the donee’s estate for the sole purpose of determining the exemption and rates applicable to such portion of the estate as may have passed to the appointee aside from the exercise or nonexer-cise of the power. It is of interest to note that in the Reeves opinion it was observed that the 1942 act did give the statute the effect the revenue department had contended was inherent in the 1936 amendment, but there is no mention of that observation in the later Ream opinion.

The statute was revamped by Ch. 96, Acts of 1948, as follows:

(1)The old 1924 language was retained as KRS 140.040(1), followed by this sentence: “The time at which such transfer shall be deemed to take place, for the purpose of taxation, shall be governed by the provisions of subsections (2) to (4) of this section.”

(2) The substance of the 1936 proviso as amended by the 1942 act was retained as KRS 140.040(2), except for its being made explicit that it applies only to powers of appointment taking effect at the death of a donor on or after April 24, 1936.

(3) A new subsection, KRS 140.040(3), provided that in all cases “other than that described in subsection (2)” the transfer shall be deemed to take place, for tax purposes, at the donee’s death and that the property to which the power relates shall be taxed at its value, at the rates, and subject to the exemptions in effect at that time.

The remaining sections of KRS 140.040 [(4) and (5)] as revised in 1948 are not vital to our disposition of the case.

As we see this statute in perspective, neither the unimaginative draftsmanship of its various amendments nor the artificial and unnecessary result invented in Reeves and followed in Ream can obscure what appears to have been a clear and consistent legislative purpose since 1936, which is to tax transfers by appointment at the death of the donor if possible and at the death of the donee if not. We consider the Reeves opinion unsound, and with it Ream, its progeny. Both are overruled.

Most transfers of property rights take place all at once. Even the most insignificant fractional interest ordinarily passes instantaneously from one ownership to another. Powers of appointment present an exception, but because an exception would not have comported with the necessities out of which common-law principles had grown, the common law pretended that nothing passed until the power was exercised, and then the title passed from the donor. As a practical matter, however, we know that a power of appointment involves a two-stage transfer, which begins with the creation of the power and ends with its exercise — or, in the instance of a default in exercise, begins with the creation of a power to shift the title and ends when the power dies unexer-cised. It is elementary, of course, that a state may tax the transfer at either stage.

Under the 1924 act the transfer was taxed exclusively at the second stage, which is more desirable from an administrative standpoint at least. If, however, the donee of a power is or becomes a nonresident of the state, or exercises the power inter vivos, the transfer escapes taxation unless it has been intercepted at the first stage. That was the hole the 1936 act meant to plug. But since donors who had created or might thereafter create powers outside the jurisdiction of the state could be reached only through resident donees, and since resident donees already were subject to that jurisdiction by virtue of the 1924 act, there was no reason or necessity for the 1936 amendment to reach out for such donors, Reeves and Ream to the contrary notwithstanding.

The executor would have us construe KRS 140.040(2) as applicable to all donors, resident or nonresident, whose deaths occur or have occurred on or after April 24, 1936 (as the 1936 act was construed in Reeves), and KRS 140.040(3) as applicable to all instances in which the donor died before that time. Proceeding on this premise, which is conceded to be the sine qua non of its constitutional argument, the executor contends that if the trusts involved in this case had been created on or after April 24, 1936, there would be no tax on the transfer effected by the donee’s exercise of her testamentary powers.

If KRS 140.040(2) were so construed, then of course a transfer begun by a nonresident donor on or after April 24, 1936, and later completed by a resident donee would entirely avoid taxation by this state. The contention that it should be so construed rests on the absence of the word “resident” to restrict the meaning of “donor.” We do not accede. As heretofore stated with reference to the 1936 amendment, which is assimilated by KRS 140.040(2), we cannot construe a statute that calls for the assessment and collection of a tax at the time of a donor’s death as having been intended to apply where the state has no power to levy such a tax. The very argument illustrates the absurdity of such a construction. In that context, physical absence of the restrictive adjective “resident” does not defeat its inclusion by necessary implication.

Our construction of KRS 140.040(2) and (3) is as follows:

KRS 140.040(2) applies to all transfers taxable by this state at the death of the donor. We say “taxable” for the simple reason that obviously it cannot apply to a transfer which, for whatever reason, is not taxable by this state. Two circumstances in which the testamentary creation of a power is not taxable by this state come immediately to mind: either the donor died before April 24, 1936, when there was no statute affecting that stage of the transfer, or he was not a resident of this state at the time of his death (whether before or after April 24, 1936), for which reason the transfer had not thus far come within its jurisdiction to tax.

KRS 140.040(3) applies to all other taxable transfers completed by the exercise or nonexercise of a power of appointment, which includes all transfers that were not subject to this state’s inheritance tax laws when they were commenced but are subject to those laws by reason of the donee’s residence in this state at the time he exercises the power. In this class of transfers at the donee’s death are all powers created by nonresidents, all powers created prior to April 24, 1936, and all powers created by inter vivos transactions (or, more precisely, powers that pass to the donee other than at the donor’s death).

Since we do not adopt the construction advocated by the executor it becomes unnecessary to consider the applicability and effect of Binney v. Long, 299 U.S. 280, 57 S.Ct. 206, 81 L.Ed. 239 (1936), except insofar as it may relate to the alternative contention that an aggregation of the appointive property with other property left to the appointee out of the donee’s separate estate is discriminatory. Before dealing with that contention, perhaps it will be helpful for us to examine briefly the difference in practical effect between KRS 140.040(2) and KRS 140.040(3).

Under KRS 140.040(2) the taxes are assessed and collected following the donor’s death. They are levied against both the life estate of the donee and the remainder interest of the prospective appointee, according to property values and tax rates in effect at that time. There is no provision' for adjustment of these taxes following the donee’s death. If the donee is or becomes a nonresident and the distributable shares of his estate at the time of his death are not subject to taxation by this state, that is the end of it. The tax on the appointive share has been paid. If, however, the donee’s estate is subject to this state’s inheritance taxes, and if the donee leaves to the appointee other property, in addition to that which passes by reason of the exercise (or nonexercise) of the power of appointment, then for the sole purpose of determining the exemption and rates applicable to that additional property the value of the appointive remainder interest as of the date of the donee’s death is aggregated with it.

Under KRS 140.040(3) there is no complication. No tax was paid or payable at the donor’s death. The appointive property is simply treated as a part of the donee’s general estate. The disadvantage to the taxpayer, in comparison with what his situation would have been under KRS 140.-040(2), is that both the appointive property and whatever other property he has received from the donor’s estate are exposed to higher rates under the progressive schedules set forth in KRS 140.170, whereas under KRS 140.040(2) that portion of the estate represented by the appointive property, though used for the purpose of pushing the nonappointive share into higher rate brackets, has already been taxed and is not exposed to any higher rate than that which was separately applied to it at the time of the donor’s death. Nor, under KRS 140.-040(2), would the tax on the appointive share itself be affected by an enhancement (or decrease) in its value during the interim between the donor’s and donee’s deaths.

Binney v. Long, 299 U.S. 280, 57 S.Ct. 206, 81 L.Ed. 239 (1936), involved one testamentary and two inter vivos trusts. Only the testamentary trust, created in 1891, presented a problem comparable enough with this case to justify discussion. All of the relevant events occurred in Massachusetts. The life beneficiary died intestate in 1931, having failed to exercise a power to appoint the remainder interest among her children.

Prior to 1907 Massachusetts death taxes “applied only to collateral inheritance and excluded devolution to lineal descendants. In 1907 a law was enacted taxing testamentary devolution ... to lineal descendants; this made no mention of powers of appointment; the tax was graduated according to amounts and relationships, but there was no requirement of aggregation of various interests passing and accruing to a single beneficiary from or on account of the death of a decedent to ascertain the rate of tax. Such a provision for uniting interests was enacted in 1924, and incorporated with the first section of the act of 1907 as amended into a single section.

“The act of 1907 and its amendments were prospective in operation and exempted estates of those who had died prior to its effective date. .

“In 1909 provision was made for a succession tax upon the occasion of the exercise, or nonexercise of, powers of appointment. . The effective date of this provision was declared to be September 1, 1907, which was the effective date of the 1907 act. . . . ” 299 U.S. at p. 284, 57 S.Ct. at p. 208.

The 1909 act provided that the exercise (or nonexercise) of any power of appointment created prior to September 1, 1907, should be treated as a transfer of the do-nee’s own property. Under the 1907 law no tax had been payable on the appointive remainder interest until it came into possession, at which time it was taxed as a transfer from the donor rather than the donee. 299 U.S. at p. 292, 57 S.Ct. 206. The effect, therefore, of switching into the donee’s estate property which theretofore had been separately taxable as a part of the donor’s estate was to throw it into a different and higher tax classification. A divided court, with Justices Cardozo and Brandéis dissenting, held that in placing “those who succeeded to remainder interests created prior to September 1, 1907, into a taxable class while . . . taxing on a different basis and at a different rate remaindermen taking under instruments effective subsequent to September 1, 1907,” the 1909 and 1924 acts were arbitrary. 299 U.S. at pp. 294, 295, 57 S.Ct. at p. 212.

One significantly distinguishing feature of the Binney problem was that unlike our 1936 act, the 1907 Massachusetts law made no provision for collection of a tax on the appointive property at the time of the donor’s death. See 299 U.S. at pp. 293, 294, 57 5.Ct. 206. Thus if two different appointees came into simultaneous possession of equal assets through the exercise of separate powers of appointment, one created before 1907 and the other after 1907, both paid the inheritance tax at that time, one as if he had taken from the donor and the other as if he had taken from the donee. Our law is essentially different in that both do not pay at the same time, and each is taxed on the basis of circumstances existing at the time the tax is levied. By undertaking to draw it (299 U.S. at pp. 293, 294, 57 S.Ct. 206), Binney leaves the inference that this distinction had dispositive importance.

Quite aside from the factual distinction, there is reason to doubt that Binney would be followed by the United States Supreme Court today. Even the court as then constituted did not agree in what it meant. Thus, for example, we find Justice Roberts, the author of the opinion, dissenting in Whitney v. State Tax Comm., 309 U.S. 530, 542, 60 S.Ct. 635, 84 L.Ed. 909 (1939), on the ground that the case was “indistinguishable in principle” from Binney In any event, we are satisfied that because April 24, 1936, was the date on which this state began to tax the transfer of appointive property at the time of the donor’s death, it provides a reasonable and therefore constitutionally sound basis for the classification effected under KRS 140.-040 as we construe it.

We realize, of course, that the law could more nearly achieve complete equality of treatment. That would be so, for example, if the appointee under a power created on or after April 24, 1936, were taxed exactly the same as if the power had been created before April 24, 1936, subject to a credit in the amount theretofore paid at the donor’s death, with interest from date of payment. Conversely, the appointee of property not taxed at the donor’s death might be taxed retroactively, a la Reeves and Ream, with interest representing the use value of the tax money during interim, and then be given the same treatment as under KRS 140.040(2). However, the constitutionality of a classification does not depend upon whether it is necessary, or could have been avoided, but whether it is rationally related to a legitimate objective. Cf. Chapman v. Eastern Coal Corporation, Ky., 519 S.W.2d 390, 393 (1975). That test is amply satisfied by KRS 140.040.

Two other points bear mention. In a similar case some time ago, which did not reach the courts, the revenue department accepted the taxpayer’s viewpoint and taxed separately property that had been appointed under a power created before 1936. Now, the executor argues, since a contemporaneous construction thereby was placed on an ambiguous statute it should continue to be followed. We mention the argument only to lay it to rest. In the first place, we think that most of the ambiguity is not intrinsic to the statute but has generated from the outside. Except for Reeves and Ream it very well may have led a peaceful existence. Secondly, we are no more disposed to hold that an administrative body can change a law by mistake than to hold that it can do so on purpose.

Finally, it is argued that by the express terms of KRS 140.040(2), “or from the language thereof it may be reasonably implied,” when the value of the appointive property is aggregated with other property left to the appointee out of the donee’s separate estate (for the purpose, that is, of determining the exemption and rates applicable to the separate property), “the value of the donee’s life interest outstanding- at the death of the donee ” (emphasis added) is to be deducted from the value of the appointive property, and therefore the same deduction should be made under KRS 140.-040(3). The answer is that there is no such animal as a value of a life interest remaining at the end of the life on which it depends, and there is no authority for deducting this fictional creature under either subsection of the statute.

The judgment is reversed on the appeal and affirmed on the cross-appeal with directions that it be modified accordingly.

All concur.

      . That decision held that there was no taxable transfer at the death of a donor who had created a testamentary power of appointment by an inter vivos instrument.

      . Under the present statute, KRS 140.110, the rate is calculated on the basis of “the most probable contingencies or conditions” named in the instrument.

      . See, however, the lucid opinions in In re Newton’s Estate, 35 Cal.App.2d 830, 221 P.2d 952 and 956 (1950).

      . We are not here concerned with powers that may be exercised inter vivos.

      .In this context we use the word “appointee” as including a beneficiary who takes, or whose interest is freed of the conditional limitation, by reason of a default in exercise of the power.

      . For example, donor A dies in 1905 leaving a half interest in Blackacre to X in fee and the other half interest to Y for life with power to appoint the remainder in fee. X dies in 1910 leaving his half interest to Y for life with power to appoint the remainder in fee. Y dies in 1930, exercising one power in favor of B and the other in favor of C.

      . Compare also Madden v. Kentucky, 309 U.S. 83, 93, 60 S.Ct. 406, 84 L.Ed. 590 (1939), as evidence of the difference in viewpoint between Justice Roberts and the majority of the court with respect to the equal protection and privileges and immunity clauses of the 14th Amendment.


author: PER CURIAM.

text:
    STATE ex rel. Clarence MILLETT, Relator, v. Honorable J. Casey WALSH, Judge, Respondent.
    No. 58872.
    Supreme Court of Missouri, En Banc.
    July 14, 1975.
    James C. Jones, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for relator.
    John C. Danforth, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for respondent.
   PER CURIAM.

This is an original proceeding in mandamus.

Relator is charged in a two-count information with two offenses of first degree robbery by means of a dangerous and deadly weapon. He filed a motion in the trial court for separate trials of the two charges, stating as grounds that to try and convict him of both offenses in one trial would subject him to mandatory imposition of consecutive sentences under § 546.480, RSMo 1969, V.A.M.S., and thus deny him the right to have the trial judge exercise his discretion on whether the sentences should be concurrent or consecutive, all in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution. His motion was overruled but on his petition this court issued its alternative writ..

Relator’s contention in this proceeding is the same as that stated as grounds in support of his motion for separate trials of the two charges. A like position of an appellant was upheld by this court in State v. Baker, 524 S.W.2d 122 (banc — decided June 9, 1975), in which § 546.480 was declared unconstitutional. The result is that a trial judge may now exercise his discretion as to whether, upon conviction of an accused of two or more offenses in one trial, the sentences to be imposed should be concurrent or consecutive. Hence, the reasons asserted by relator for making our alternative writ peremptory no longer have force and the writ issued should be quashed.

Accordingly, the alternative writ of mandamus is quashed.

All concur.


author: PER CURIAM:

text:
    In the Matter of the Honorable Roger D. HINES, Municipal Judge, Respondent.
    No. 59067.
    Supreme Court of Missouri, En Banc.
    July 14, 1975.
   PER CURIAM:

This is a disciplinary proceeding against respondent in which the Commission on Retirement, Removal and Discipline, after conducting a formal hearing into respondent’s direction of his court, has recommended that he be removed from the office of Municipal Judge of the City of Columbia. See In Re Fullwood, 518 S.W.2d 22 (Mo. banc 1975).

Respondent did not object to the findings and recommendation of the Commission as authorized by Rule 12.09, V.A.M.R.; and, in accordance with Rule 12.08, the court has considered the matter as submitted and reviewed the record heretofore filed.

The Commission made detailed findings of fact that respondent violated the Canons of Judicial Ethics in numerous respects.

Nothing could be gained by developing the specific instances of improper conduct therein found, and it is sufficient to say that such findings are sustained by the record.

Respondent is herewith removed from the office of Municipal Judge of the City of Columbia, and the clerk of this court is directed to furnish and deliver certified copies of this opinion and order as provided in Rule 12.26.

SEILER, C. J., and MORGAN, HOLMAN, HENLEY, FINCH and DONNELLY, JJ., concur.

BARDGETT, J., not participating.

      . The Commission exists by virtue of Art. 5, § 27, of the Missouri Constitution of 1945, V.A.M.S., and proceeds in compliance with Missouri Supreme Court Rule 12.

      . Rule 12.09 provides, in part, that: “Respondent within 30 days after the date of such service [transcript of the record] may file a brief setting forth any objections he may have to the findings and recommendations of the Commission and argument in support thereof.”

      .A new Rule 2 was made effective July 1, 1975, and it is entitled: “Code of Judicial Conduct.”


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Bruce Ray WILBORN, Appellant.
    No. 35759.
    Missouri Court of Appeals, St. Louis District, Division Four.
    May 6, 1975.
    Motions for Rehearing on Transfer Denied June 26, 1975.

      William Shaw, Public Defender, Joseph R. Aubuchon, Asst. Public Defender, Clayton, for appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Scott A. Raisher, Asst. Attys. Gen., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Bruce Ray Wilborn, charged under the Second Offender’s Act, § 556.280, RSMo 1969, V.A.M.S., with robbery in the first degree, was found guilty by a jury and sentenced by the court to imprisonment for a term of thirty years.

On September 26, 1972, Frederick Leon Caby, proprietor of a Clark Service Station located at 7731 Page Avenue, St. Louis County, was servicing the automobile of Adrian DeHart. A Chevrolet Nova station wagon entered the service station. It had two or three occupants and the driver was appellant. At appellant’s request Mr. Caby checked the oil and added a quart. Mr. Caby then returned to the DeHart automobile, but appellant followed him and stated that he wanted a dollar’s worth of gasoline. Mr. Caby told appellant he would have to wait until he had finished servicing the DeHart automobile, and he then went to the back room of the building to get an oil rag. He testified that he “found a colored male * * * ransacking my cabinets and money drawers and places where I keep the day’s receipts.” According to Mr. Caby, “his pockets and waistline was bulged with money he got out of the drawer, one of the drawers there.” When Mr. Caby entered the room the person “pulled” from his pocket a .38 calibre revolver, the property of Mr. Caby which he had taken, pointed it at Mr. Caby and pulled the trigger, but the revolver did not fire because there was no bullet in the chamber. Mr. Caby grabbed the gun and “pushed it over in one of the shelves there.” He also grabbed the person’s hair and “started pushing his face in the wall.” At this time appellant entered the room, picked up a pair of garden shears, and “stuck” them in Mr. Gaby’s neck and told him to turn the person loose or he would run the shears through his throat. Because of this Mr. Caby turned the man loose, and he and appellant left and drove away in the Chevrolet Nova.

On cross-examination, Mr. Caby testified that when he first went in the back room “they [he?] already had [the] gun and already had the money,” and that the reason he scuffled with the person was to “keep this man from shooting me.”

Section 560.120, RSMo 1969, provides: “Every person who shall be convicted of feloniously taking the property of another from his person, or in his presence, and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person; * * * shall be adjudged guilty of robbery in the first degree.”

The court instructed the jury that if it found and believed from the evidence beyond a reasonable doubt that the defendant, Bruce Ray Wilborn “did wilfully, unlawfully and feloniously make an assault upon one Fred Caby by putting the said Fred Caby in fear of an immediate injury to his person by means of a certain dangerous and deadly weapon, a pair of shears, * * * and if you further find and believe * * * that by so putting the said Caby in fear of such personal injury * * with the said shears * * * the defendant did then and there wilfully, unlawfully, and feloniously take and steal U.S. currency, the property of Clark Service Station, then and there in the lawful custody of Fred Caby * * * in the presence of and against the will of the said Fred Caby with the felonious intent then and there to steal the said currency, * * * then you will find the defendant guilty of Robbery in the First Degree by means of a Dangerous and Deadly Weapon.”

Appellant contends that the trial court erred in giving this instruction “because there was no evidence that the defendant or anyone else obtained possession of the money by means of a dangerous and deadly weapon.” Appellant argues that possession of the money (and pistol) was obtained by stealth, and that the pistol and the money were already in the hand and pockets of the colored man when Mr. Caby came into the back room of the service station.

Appellant cites numerous cases, all to the effect as stated in State v. Vandament, 299 S.W.2d 532 (Mo.1957), that ‘“In order to constitute robbery by intimidation, it is essential that the property taken be surrendered because of the apprehension of injury, and that the fear be that under compulsion of which the victim parts with his property. The fear essential to robbery must be caused by accused, intentionally, and not arise from the mere temperamental timidity of the victim.’ ” See, for example, State v. Adams, 406 S.W.2d 608 (Mo.1966); State v. Hawkins, 418 S.W.2d 921 (Mo. banc 1967); State v. Thompson, 414 S.W.2d 261 (Mo.1967); and for an older case, see State v. Parker, 262 Mo. 169,170 S.W. 1121 (1914).

At the time the trial judge determined that the evidence would sustain an instruction on robbery, the court approved the following statement of the law, as set out in 77 C.J.S. Robbery § 11: “In order to constitute robbery, the force or fear may and must be employed either to obtain or retain possession of the property or to prevent or overcome resistance to the taking; but as discussed infra § 13, force employed merely as a means of escape is not sufficient. * * * Although there is a measurable period of time between the taking and subsequent force, if the latter occurs so soon after the former as to be a part of the same transaction the violence is legally concomitant with the taking.”

In II Wharton’s Criminal Law and Procedure, § 559, in discussing the “Time of exercise of force and fear,” it is stated: “The act of the defendant may either precede or be concurrent with the taking of the victim’s property. But in any case the circumstances must be such that at the time of the taking of the property the victim was in fear. * * * The fact that there is a substantial interval between the time when the defendant acts and the time when the victim gives up the property does not necessarily preclude a conviction for robbery if it is found as a fact that the victim was reasonably acting under the influence of fear induced by the defendant.”

The precise factual situation of this case is unique, and general principles are helpful only as a guide, but in this jurisdiction, as well as others, it is well recognized that “the violence used in the robbery must precede, or be contemporaneous with, the taking of the property.” (Italics added.) State v. Parker, 262 Mo. 169,170 S.W. 1121, 1123 (1914). As noted by Wharton, supra, at § 559: “Conflict in the decisions in some states arises because of the uncertainty as to when the taking is completed.”

In this ease, the evidence is to be considered most favorably to the State and in conformance with the verdict, and when so considered at the time Mr. Caby discovered the man in the back room of his service station, the latter was then engaged in “ransacking [the] cabinets and money drawers and places where [Mr. Caby kept] the day’s receipts.” The person had picked up some or perhaps all of the money he ever obtained, but he was still ransacking the cabinets, and he had not started to leave or to depart. He then continued the project already started by use of the deadly and dangerous weapon, the gun, and the transaction constituting a robbery was completed only when appellant entered and threatened Mr. Gaby with serious bodily injury by use of the shears. In other words, under the factual situation of this case, the force or threat of serious bodily injury made by appellant was contemporaneous with the taking and a part of the single transaction.

In State v. Parker, supra, the accused stuck his hand in the victim’s pocket and removed some money before the victim knew what had happened. In ruling that the offense of robbery was not committed, the court said: “The act of theft was wholly accomplished before [the victim] got frightened. No blow was struck or threatened; no weapon was used or shown; nor was any threat of injury, either immediate or remote, uttered by defendant.” (Italics added). It was then held that the violence used was not contemporaneous with the taking of the property. As distinguished from the facts of the Parker case, the factual situation of this case is comparable in some respects to the “snatching with force” cases. In State v. Spivey, 204 S.W. 259 (Mo.1918), it was said: “Snatching a valuable article from another is always denominated robbery where any force is exercised either to overcome resistance of the person robbed or in detaching the article taken where it is fastened in some way to the clothing or person of the one robbed.” See also State v. Houston, 451 S.W.2d 37 (Mo. 1974), and the annotation at 42 A.L.R.Sd 1381. In the “snatching with force” cases the accused takes hold of the object but does not have full control because it is fastened to the victim, and force is necessary to complete the taking. In this case, the man in the back room had taken hold of some money but he did not have complete control because Mr. Caby entered the room while he was still ransacking, and force by the man and putting in fear by appellant was necessary to obtain control and possession of the money.

In State v. Clemons, 356 Mo. 514, 202 S.W.2d 75 (1947), cited and relied on by appellant, it was stated: “There are decisions holding that when the accused had already obtained dominion over property by stealth and then used force and violence or putting in fear merely as a means of escape, the crime would not be robbery.” But in applying the rule to the facts of that case the court said: “In this case it'is true the appellant first snatched the pistol from the glove compartment of the automobile. But he then used it as a means of completing his dominion over the weapon itself, and of obtaining possession of the automobile, all as a part of the same res gestae. And it is generally held that when the sudden taking or snatching is concurrent with intimidation or violence the crime is robbery.” (Italics added.)

We have found two cases that are reasonably comparable on the facts. In Montgomery v. Commonwealth, 346 S.W.2d 479 (Ky.1961), three persons entered a restaurant, but acted “so as to arouse [the] suspicion” of the lady in charge, a Mrs. Trimble. Appellant spread a newspaper on the counter and read or pretended to read it. A person by the name of Busby used the telephone, and then ordered a coca-cola and started toward the door. When Mrs. Trimble told him that he had not paid for the coca-cola he returned and gave her a dime. As she started to “ring it up” on the cash register, appellant was standing nearby. She heard a noise behind her and turned and saw Busby “leaning over the counter and lifting a box from the floor” .which contained $58. Appellant then went through the swinging door in the counter to where s.he was, and she took a step or two toward Busby. Appellant then stepped up with an opened knife in his hand, called Mrs. Trimble a “bad name” and told her if she moved he would cut her throat. She testified on cross-examination that appellant “had made no threatening ‘gesture or maneuvers’ toward her at any time before Busby got the box of money.” The Kentucky statutes did not define the crime of robbery so the court looked to the common law for the definition and the distinction between larceny. It has been held as early as 1875 that the Missouri statutory definition of robbery “made no new distinction nor declared any new principle” to the common law definition. State v. Broderick, 59 Mo. 318 (Mo.1875). Therefore, the Missouri and Kentucky definitions of robbery are comparable.

In a well reasoned analysis of the crime of robbery, the Kentucky court held: “The appellant contends that the removal of the box of money from its place behind the counter was asportation, and thereby the crime of grand larceny was complete before the knife was displayed. Technically, that may be sufficient in some circumstances to consummate the crime of larceny. * * * Even that claim is tenuous, for there was scarcely a distinct measurable period of time between the removal of the property from the floor and the violence. * * * It is generally recognized that the requisite element of force or putting in fear must either precede or be contemporaneous or concurrent with the taking of the property. * * * Particularly, in Armstrong v. Commonwealth, * * * [190 Ky. 217] 227 S.W. 162, 163, we stated that it is not indispensable ‘that the force employed or the putting of the person robbed in fear should precede the taking of the property. It will be sufficient if both or either accompany the taking of the property, and that was the case here.’ * * *. In the present case it would be an unsubstantial conception of the facts to say that the taking of the box of money was completed, or that the larceny had already been consummated, when the defendant made his threat and displayed his knife. The acts originated and occurred in the same period of time, that is to say, were contemporaneous.”

The other case of interest because of the factual similarity, is State v. Culver, 109 N.J.Super. 108, 262 A.2d 422 (1970). There Paul Caruso heard his daughter scream from the living quarters back of his grocery store, and when he opened the door to the living quarters he was confronted by the accused with a gun in his hand. A struggle occurred, and Caruso was struck over the head with the gun and accused made his escape. When the daughter had previously entered the living quarters she was struck from behind by the accused. There was no direct proof that the money had been taken before or after the assaults on the daughter and Caruso, but when Caruso was first confronted by the accused he noticed that his jacket was bulging. The court stated that “in the context of the facts before us, the taking was not terminated when the defendant took the money from the dre'sser drawer and [presumably] placed it in his coat pocket. Here, Caruso’s precautions for the security of his property placed defendant in a position where, if he was to enjoy the stolen items, he had to take them out of the area of Caruso’s control. * * * Unfortunately for defendant, first [the daughter] and then Caruso interfered with his exit.” The New Jersey court continued: “Reason and logic would seem to dictate that where an owner of premises takes similar, though less effective, precautions against thievery and his opposition is overcome as he interposes himself to prevent the thief from taking the money from the portion of the premises in which it had been kept, his use of force is concurrent or concomitant with the taking, thus constituting the thief’s action as robbery. * * * The series of events which allegedly took place here — the ransacking of the room, taking the money, [the daughter’s] discovery of the thief and her giving of the alarm, Caruso’s attempt to stop him, defendant’s assault upon both of them and his consequently successful exit from the apartment — constituted a single incident or occurrence, the res gestae of the crime. * * * Such a situation is clearly distinguishable from one in which force is used to foil pursuit after the taking is complete.”

In this case the person was “ransacking” when Mr. Caby entered the back room and engaged the man in a scuffle. Appellant then entered and made his threat of serious bodily harm to Mr. Caby. It was all one single transaction. The trial court did not err in submitting an instruction to the jury on robbery in the first degree with a dangerous and deadly weapon.

Appellant’s second point is that the trial court erred in overruling his objection to the testimony of Police Officer Newberry “that he arrested appellant based on the description and license plate number he received over the radio, in that the testimony allowed hearsay evidence * *

Mr. Marvin E. Chunn was the operator of a Standard service station next door to the Clark station operated by Mr. Caby. An automobile “came speeding in [his station] with the tires squealing” and a lady jumped out and said “Call the police, there’s a holdup going on next door.” Mr. Chunn told his employee to call the police, and he went to the Clark station and took a pistol with him. He saw a “guy,” whom he identified in court as the appellant, about halfway between the station and a Chevrolet Nova, and he told him to stop. An automobile then pulled in between them, and appellant ran to the Chevrolet Nova. Mr. Chunn fired at the Nova but it drove away. He then ran to his station and wrote down the first three figures or numbers of the license plate on the Nova, which were PE7. Mr. DeHart testified that as the result of the occurrences at the station he told, his wife to take down the license number of the Chevrolet Nova, and she did, and that he later talked to the police and furnished them the information he had. Mr. Medlin of the Missouri Department of Revenue testified that the records of his office showed that the title to a 1963 Chevrolet Nova station wagon had been issued to Bruce A. Wilborn, and that the license number for the year following August 16,1972 was PE7 346.

From the argument in appellant’s brief we find that he apparently objects to the following testimony of Police Officer New-berry:

Q. Let me direct your attention back to the morning of September 26. Did you have occasion to proceed to Prairie and Lee Avenues?
A. Yes, Sir.
Q. What were you looking for when you proceeded there?
A. We had received radio—
Mr. Aubuehon [defense counsel]. I object, Your Honor. Hearsay.
Mr. Dittmeyer [prosecutor]. Can’t testify to what you were told.
Q. Were you searching for anything when you went there?
A. I was.
Mr. Aubuehon: I object, Your Honor. Conduct based on hearsay.
The Court: Overruled.
A. I was searching for a ’63 Nova station wagon that was—
Q. Were you looking for a particular license number?
A. Yes, Sir.
Q. When you got in the vicinity of Prairie and Lee, did you have occasion to see the automobile you were looking for?
A. Yes, Sir.
A. At this time I turned my vehicle around and followed the vehicle at which time I could, I observed the license plate number on it.
Q. And was that the license plate you were looking for.
A. Yes, sir.
* * * * * *
Q. What was that?
A. PE7 346. Missouri License Plate.

Appellant argues: “The above testimony permitted the jury to connect appellant’s complete license plate number (based upon the testimony by Mr. Medlin of the Bureau of Motor Vehicles) with the number purportedly recorded and reported to the police by Mrs. DeHart but of which there was no direct testimony by the State’s case.”

There were no objections except the two above set forth, and they were not specifically directed to the testimony about which appellant now complains. The contention now presented is totally without merit. The officer testified only to what he saw and what he did. That was not hearsay. It is true that the officer testified that he observed the automobile with the license plate PE7 346, and that the State showed that that was the license number on the automobile for which appellant had obtained a title. It is also true that the State showed that Mr. Chunn furnished the police the first three figures or numbers of the license on the automobile in which the robbers drove away, and that Mr. DeHart testified that he had given the police the entire number, although he did not testify as to what the number was. The precise basis for appellant’s contention is difficult to understand, and for that reason we have set out the testimony and circumstances in greater detail than otherwise should be necessary, but in so doing we clearly demonstrate that the point is totally without merit.

Appellant’s third point is that the trial court “committed plain error by neither sua sponte declaring a mistrial nor instructing the jury panel to disregard the prosecuting attorney’s highly prejudicial comment that the defendant, ‘If he pleaded not guilty,’ should ‘speak for himself.’ ” The incident complained of occurred during the voir dire examination of Mary S. Cook.

MR. AUBUCHON: [defense counsel] Would it bother, would you hold it against Bruce Wilborn if he allowed the evidence to speak for itself and pled not guilty instead of going to that chair and saying so?
MR. AUBUCHON: [This answer undoubtedly was by Juror No. 7 — Mary S. Cook] Nope.
MR. DITTMEIER: [prosecutor] Your Honor, I am going to object to that. I don’t[?] think the question is ambiguous. Let him speak for himself if he pleaded not guilty instead of letting him sit in the chair. I don’t understand the question. THE COURT: I am, if you will forgive me for being confused even though the jury didn’t appear to be. Will you rephrase the question?

There then followed some discussion not here relevant, and appellant’s counsel then asked: “Would it affect your ability to presume innocence until, you know, until the contrary should be proven if it is proven because Bruce Wilborn did not take the witness stand?” The juror answered “No.”

There are several reasons why this contention is totally without merit. First, there was no objection made at the time to the comment of the prosecutor. Second, there is no mention made whatever of this incident in the motion for new trial. However, appellant contends that the Court sua sponte should have declared a mistrial or instructed the jury to disregard the remark, and thereby attempts to invoke the “plain error” rule.

We note that it was appellant’s counsel who first made mention of what effect appellant’s failure to testify could have. Section 546.270, RSMo 1969, provides that “If the accused shall not avail himself * * * of his * * * right to testify * * * it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt nor be referred to by any attorney in the case * * (Italics added.) See also Rule 26.08. After appellant’s counsel asked the question he did, it is obvious that the prosecutor then attempted to rephrase the question that had been asked to demonstrate why he did not understand it. We reject appellant’s assertion that in effect the prosecutor retaliated by stating in unequivocal terms, “Let him speak for himself if he pleaded not guilty instead of letting him sit in the chair.” What appellant here attempts to do is to take the prosecutor’s comment completely out of context, and ignore the fact that he was the one who first presented the issue, and was the first to inject what effect the jury should give to his failure to testify, if he did not do so. If there was anything wrong with the comment of the prosecutor, and under the circumstances, we think not, it was self-invited, and under those circumstances did not call for any action by the trial court sua sponte, and did not constitute plain error within the meaning of Rule 27.20(c).

Appellant also argues that his federal constitutional rights were prejudiced, and he cites Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Both of these cases involved situations where there were direct and certain references to the failure of the accused to testify. When considered in context, it is reasonably apparent that the prosecutor merely attempted to rephrase what appellant’s counsel had said to demonstrate why the question to the prospective juror was confusing and had not been understood. It did not constitute argument to the jury. The “facts and circumstances of each case must be carefully analyzed to determine ‘Whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ ” United States v. Mahanna, 461 F.2d 1110 (8th Cir.1972). In State v. Hutchinson, 458 S.W.2d 553, 556 (Mo. banc 1970), this court set forth the proper scope of review in a case where the objection was to a jury argument as follows: “ ‘Whether or not a particular improper argument is so prejudicial under the facts in a particular case, as to necessitate a reprimand of counsel or a discharge of the jury, is largely within the discretion of the trial court. An appellate court will not interfere unless the record shows that the trial court abused its discretion to the prejudice of the appellant.”

Here, the comment was not made in argument but in response to a question by appellant’s counsel to a juror on voir dire examination; it was made because of the confusing nature of the question by appellant’s counsel; and when the comment is read in context it did not imply that appellant should testify, but was no more than a rephrasing of the question of appellant’s counsel with the comment that the prosecutor could not understand the question. This was not an incident calling for sua sponte action on the part of the trial court in the protection of appellant’s federally protected rights by declaring a mistrial or by giving an instruction during the voir dire to the jury to the effect that no inference should be drawn by the failure of the accused to testify. Admittedly, there may be occasions when the trial court has a duty to take some action without a request, but they may be called extreme situations. Here the court witnessed the incident, heard the inflection of the voice of the prosecutor when he attempted to justify his reason for not understanding the question, and the court was able to determine whether the incident called for any action on its part without a request. On appeal, with only the benefit of the record before us, we cannot say that the failure of the court to take some action sua sponte resulted in error requiring or justifying a reversal of the judgment.

Appellant’s final point is that the trial court erred in not declaring a mistrial “after inflammatory and prejudicial remarks by the prosecutor during his closing argument.” From the argument we can determine that reference is had to the comment by the prosecutor in closing argument that: “So, ladies and gentlemen, I am going to ask you to retire and ask you to come back with a verdict of guilty and it is extremely important that you return a verdict of guilty. The evidence has been proven, he’s guilty, you know your crime on the streets, well, this you know. Most people —.” At this point appellant objected, stating that “this man is not being tried for crime on the streets.” The trial court sustained the objection, and pursuant to appellant’s request, ordered the remark stricken, but denied appellant’s request for a mistrial.

It has frequently been held that it is permissible for a prosecutor to “illustrate the effect of their [the jury’s] verdict on the community or society generally with respect to obedience to, and enforcement of, the law.” State v. Cheatham, 340 S.W.2d 16, 20 (Mo.1960). For other cases, see State v. Gordon, 499 S.W.2d 512 (Mo.1973), where it was held proper for the prosecutor to refer to the fact that the crime occurred in a “high crime area”; and State v. Pruitt, 479 S.W.2d 785 (Mo.1972), where reference in argument to the high “crime rate” was held to be permissible. The prosecutor has the right to call attention to the prevalence of crime in the community to urge the jury to do its duty and to uphold the law. State v. Elbert, 438 S.W.2d 164, 166 (Mo.1969). However, in this case a cautious trial judge sustained the objection and ordered the remark stricken. The only relief requested and not granted was a mistrial. Assuming the reference to “crime in the streets” was improper, and under the circumstances we think it was not, the declaration of a mistrial is a drastic remedy which should be exercised only where the prejudicial effect can be removed no other way. State v. Smith, 431 S.W.2d 74 (Mo.1968); State v. Camper, 391 S.W.2d 926 (Mo.1965). This determination rests largely with the trial judge who observed the incident and can best judge the prejudicial effect upon the jury, and the possibility of its removal by the action taken. State v. Raspberry, 452 S.W.2d 169, 173 (Mo.1970).. Under the circumstances here, we find no prejudicial error.

The judgment is affirmed.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.


text:
    STATE of Missouri, Respondent, v. Ronald HOSKIN, Appellant.
    No. 9710.
    Missouri Court of Appeals, Springfield District.
    June 11, 1975.

      John C. Danforth, Atty. Gen., Robert H. House, Asst. Atty. Gen., Jefferson City, for respondent.
    Jay White, Rolla, for appellant.
   PER CURIAM.

Appellant Ronald Hoskin was convicted by a Phelps County jury of tampering with a motor vehicle [§ 560.175, RSMo 1969, V.A. M.S.] and sentenced to a two-year prison term. He seeks reversal of the judgment contending the verdict of the jury is against the weight of the evidence and his trial was prejudicially tainted by prosecutorial misconduct.

A challenge to the weight of the evidence presents no reviewable issue. State v. Booker, 503 S.W.2d 76 (Mo.App. 1973). Treating appellant’s point as being directed to the sufficiency of the evidence, we have carefully read the trial transcript and find the evidence in support of the jury’s verdict sufficient to sustain appellant’s conviction.

Appellant’s complaints regarding the prosecuting attorney are not supported by the record, and we conclude appellant had a fair and impartial trial.

No error of law appears and an opinion would have no precedential value.

Judgment affirmed pursuant to Rule 84.-16(b), V.A.M.R.

All concur.


author: SMITH, Chief Judge.

text:
    CITY OF ST. PETERS, Mo., Respondent, v. KODNER DEVELOPMENT CORP. et al., Defendants, City of St. Charles, Intervenor, Appellant, County of St. Charles, Intervenor, Appellant, Missouri Cities Water Co., Appellant.
    No. 35412.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 17, 1975.

      Fenton & Prinster, St. Charles, for defendants Raymond Koenig and others.
    Bruere & Rollings, St. Charles, for inter-venor City of St. Charles.
    David A. Dalton, Pros. Atty., of St. Charles County, for intervenor County of St. Charles.
    Edwards, Seigfreid, Runge & Hodge, Inc., Mexico, for intervenor Missouri Cities Water Co.
    Niedner, Moerschel, Nack & Ahlheim, Rollin J. Moerschel, St. Charles, for respondent.
   SMITH, Chief Judge.

This is an appeal from a declaratory judgment by which the Circuit Court authorized the annexation of 1400 acres by the City of St. Peters pursuant to Section 71.-015 RSMo 1969, V.A.M.S. (The Sawyer’s Act). St. Peters is a city of the fourth class located in St. Charles County. Appellants are (1) landowners in the area to be annexed, (2) the City of St. Charles and (3) Missouri Cities Water Company, a utility which is certificated to provide certain services to the area proposed to be annexed. The latter two are intervenors in the action. The County of St. Charles, another interve-nor, has not appealed. The original petition for declaratory judgment was in two counts, involving two different areas. The counts were separated for trial and this Court approved the trial court’s judgment authorizing the annexation of the land in Count II in City of St. Peters v. Kodner Development Corporation, 509 S.W.2d 788 (Mo.App.1974). This appeal involves Count I.

The trial court found that the annexation is reasonable and necessary to the proper growth and development of the City of St. Peters and that the City can provide municipal services to the area to be annexed within a reasonable time. Appellants attack both these findings on a multitude of grounds.

Section 71.015 places the burden upon the city to establish that the annexation is reasonable and necessary, both as to the city and the area to be annexed. City of Bourbon v. Miller, 420 S.W.2d 296 (Mo.banc 1967) [1-4]. It further carries the burden of showing that the city can furnish its normal municipal services within a reasonable time. City of St. Ann v. Buschard, 356 S.W.2d 567 (Mo.App.1962) [12]. We review the trial court’s determination de novo and reach our conclusion regarding law and facts but accord deference to the trial court’s findings of credibility. As long as the reasonableness of the annexation is fairly debatable, the determination to annex is for the city and the court must uphold it. City of Bourbon, supra, [1-4]. While certain guidelines have on occasion been set out by courts, there are no rigid standards and each case must be decided on its own individual facts and circumstances. New laws and modern economic and social trends must be taken into consideration. City of Olivette v. Graeler, 338 S.W.2d 827 (Mo.1960) [20].

Certain guidelines which have applicability to annexations involving a city or town located in an essentially rural area are of little benefit when dealing with urban or suburban areas. In the former cases people are locating within an established city and annexation becomes a necessity when the geographic limits are unable to contain the population desirous of locating in the city and it begins spilling over into surrounding land. But it is still the city or town, surrounded by rural or non-residential land, to which the population is affixing itself. A different phenomenon is involved when dealing with America’s middle-age problem — urban spread. There the population is associating itself with a large metropolitan area, without regard generally to the particular city, town, village or county in which it is locating. Rather the considerations are proximity and access to an overall metropolitan job market. St. Charles County is in the midst of experiencing explosive residential and commercial population growth because of its proximity and access to the greater St. Louis area. The record here adequately shows that the St. Peters area has changed and is continuing to change from a rural area to an area of residential subdivisions and related commercial developments. Much of the proposed annexation area has been platted, developed or committed to such change. True, much of the area is still rural, but the evidence supports the conclusion that such usage is temporary. The evidence further supports the conclusion that the land values in the area to be annexed are high by virtue of their suitability for residential development, not because of their value as agricultural land.

In City of Olivette v. Graeler, 338 S.W.2d 827, 1. c. 837, 838 (Mo.1960), the Supreme Court pointed up the problems involved in rapid residential subdivision development as follows:

“There were 99 incorporated cities in St. Louis County at the time of the trial. Most of them were east of Lindbergh Boulevard. It is obvious that some of them were originally incorporated as a defensive measure to avoid annexation by an adjoining city. Some of them are completely surrounded by other incorporated cities and have no opportunity to extend their boundaries. There is a great deal of competition between other cities for the unincorporated territory adjoining them. ... It would seem to be in order for the court to consider what the ‘proper development’ of a city is in these circumstances as an element of the issues of necessity and reasonableness. Decentralization has affected both the industry and the people of the metropolitan community. The increase in land values has been phenomenal in St. Louis County but, on the present record, the increase in this area cannot be attributed wholly to its proximity to a particular city.”

With these general thoughts in mind, we turn to appellant’s specific contentions. St. Peters annexed areas in 1970, 1971 and in Count II of this suit. Appellants contend that annexations should be infrequent. That has been said in cases. City of St Joseph v. Hankinson, 812 S.W.2d 4 (Mo.1958) [15]. That of course is only one factor in determining reasonableness, and is not conclusive. City of St. Peters v. Kodner Development Corporation, supra, [4]. In this case it must be weighed against the explosiveness of the growth of the area, the necessity to plan for and provide services as new areas are taken in, and the reluctance of courts to allow excessive acquisitions at one time. As to the latter factor compare City of Mexico v. Hodges, 482 S.W.2d 545 (Mo.App.1972) and City of Mexico v. Salmons, 514 S.W.2d 102 (Mo.App.1974). We do not find the frequency of annexation here to be unjustified in view of the residential development occurring.

Appellants contend the land is not adjacent to or contiguous with the city boundaries and does not serve to even up or square off the boundaries. The area to be annexed abuts the city and under State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 228 S.W.2d 762 (Mo.banc 1950) is adjacent and contiguous. While squaring off boundaries is a consideration it is not paramount. Judicial concern with irregular boundaries is bottomed upon desire that the municipality function “effectively as a unit rather than in several small, unconnected areas which could have problems in providing municipal services.” City of St. Ann v. Spanos, 490 S.W.2d 653[2] (Mo.App.). The record does not warrant such concern here. In addition drawing the boundaries is exclusively a legislative function. City of St. Joseph v. Hankinson, supra. We cannot conclude that such function was exercised arbitrarily. The evidence indicates the boundaries were drawn to include those areas with a strong desire to be annexed, including subdivision developments and commercial developments.

St. Peters already provides water and sewer service to much of the area to be annexed. On sharply contested evidence the trial court concluded that such service could be provided in a reasonable time throughout the annexed area without detracting from or jeopardizing the present customers. We believe the trial court correctly decided that question. The evidence also supports the conclusion that annexation will provide equivalent police protection, reduction in fire insurance rates (fire protection is by an independent governmental unit and will not change), a parks and recreation program, comprehensive zoning, slightly cheaper sewer and water service than intervenor Missouri Cities provides, cheaper streets in subdivisions to be developed, street lights and some increase in property values. The financial condition of the city is sound and the annexation will not weaken, and will probably strengthen that. Certain additional intangibles such as a sense of community and greater municipal attention are also indicated by the record. In addition the opportunity for the area to develop as one entity rather than as a series of balkanized subdivision municipalities supports the court’s finding of reasonableness and necessity as to both annexed area and city. It is clear that the increased tax base and the increased services is of benefit to both areas involved.

In this case where the problem is not spill-over of population from the present city but inundation from other areas we consider the evidence of some vacant space in the city to be of little value. The annexation is not, and is not claimed to be, for the purpose of correcting over-population or lack of area in the city. It is to take into the municipal fold a large area of rapid residential and commercial development in close proximity to the city. We do not find such intention and implementation to be unreasonable or unnecessary. We are cognizant of the “county community” concept utilized by the Supreme Court in City of Olivette v. Graeler, 369 S.W.2d 85 (Mo.1963) (Second Graeler). We do not find this case comparable to Second Graeler. We note initially that the County of St. Charles has not appealed from the action of the trial court. The evidence here fails to establish a county community need that the land remain under county control as part of the overall development of the county. The area here involved is largely suited for residential and commercial usage, not for industrial usage beneficial to the county as a whole. Essentially the question is whether this residential and commercial area will more properly develop under the planning and supervision of the city or that of the county. The record adequately supports the judicial and legislative decision that the city offers the better prospects.

Appellants contend that the mayor of St. Peters is in violation of Sec. 106.300 RSMo 1969, V.A.M.S. We need not decide that for there are other remedies, if true. The record does not indicate the city is corruptly run or that the mayor is in any way incompetent. The alleged conflict of interest does not demonstrate or warrant the conclusion that the annexation is not reasonable and necessary.

The judgment is affirmed.

KELLY and STEWART, JJ., concur.


author: BILLINGS, Chief Judge.

text:
    Charles Lee SLANKARD, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 9760.
    Missouri Court of Appeals, Springfield District.
    June 25, 1975.

      William J. Fleischaker, Public Defender, Joplin, for movant-appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
   BILLINGS, Chief Judge.

Charles Lee Slankard has appealed from the order of the Circuit Court of Jasper County overruling his Rule 27.26, V.A.M.R. motion to vacate a judgment and five-year sentence for armed robbery. We affirm.

The only ground preserved for appellate review is the court’s finding and conclusion, following an evidentiary hearing, that appellant’s 1972 guilty plea was entered voluntarily and with full understanding of the nature of the charge. All other grounds asserted in his motion are deemed abandoned. Crow v. State, 514 S.W.2d 13 (Mo.App.1974).

Our review in post-conviction proceedings is limited to a determination of whether the findings, conclusions and judgment of the trial court were clearly erroneous. Rule 27.26(j); Gates v. State, 515 S.W.2d 762 (Mo.App.1974).

We have read the transcript of the evidentiary hearing, including the record of the proceedings wherein appellant entered his plea of guilty. The guilty plea record clearly refutes appellant’s contention. Appellant’s false and ill-founded hope he would be granted probation or placed on judicial parole does not invalidate his unequivocal and voluntary plea of guilty. Day v. State, 516 S.W.2d 53 (Mo.App.1974).

The judgment is affirmed.

All concur.