text:
    STATE of Texas, Appellant, v. WIERGATE LUMBER COMPANY, INC., et al, Appellees.
    No. 8258.
    Court of Civil Appeals of Texas, Beaumont.
    May 24, 1979.
    Rehearing Denied June 7, 1979.

      J. Scott Wilson, Asst. Atty. Gen., Austin, for appellant.
    John H. Seale, Jasper, for appellees.
   CLAYTON, Justice.

The State of Texas, appellant, brought this suit against appellees, Robert Powell and Wiergate Lumber Company, Inc., to enforce the provisions of Tex.Rev.Civ.Stat. Ann. art. 911b (Vernon Supp. 1978), commonly known as the Texas Motor Carrier Act. The State sought civil penalties and an injunction under the provisions of Sec. 16(b) and 16(c) of Article 911b.

The State alleged that Robert Powell acted as a motor carrier by transporting lumber and lumber by-products from the facilities of Wiergate to various cities within the State of Texas for compensation or hire on sixty separate days without a certificate of public convenience and necessity or a contract carrier permit from the Railroad Commission of Texas. The State further alleged that Wiergate procured, aided, or abetted Powell in such transportation.

It was stipulated by the parties that at all times material to this cause, property was transported between the origin and various destinations over the highways of the State of Texas between two or more incorporated cities, towns, or villages; that compensation for the transportation movements was received; and that neither Powell nor Wier-gate held a certificate of public convenience and necessity or a permit issued by the Railroad Commission of Texas.

The trial court entered judgment denying the relief sought by the State from which judgment the State appeals.

The uncontradicted testimony shows that Wiergate is in the business of manufacturing and selling lumber products and lumber by-products. Powell was employed by Wi-ergate as “manager of the trucks.” He had no duties with reference to loading, scheduling, or dispatching the trucks. His duties were “strictly in delivery of the lumber after it was loaded and seeing that it was delivered on time.” All the drivers were paid by Wiergate. All deductions for their social security and withholding taxes were made by Wiergate. All trucks were purchased by and in the name of Wiergate, and Wiergate carried liability insurance on each of such trucks. The company carried worker’s compensation insurance on the truck drivers, and Powell himself was covered by such worker’s compensation insurance. The witness Jones, as an officer of Wiergate, had the right to control the details of the work of the truck drivers involved in the particular “hauls” involved in this cause. The sales manager of Wiergate, not Powell, would dispatch the trucks to their point of destination. Jones had the right to fire any driver. All of the expenses of operating the trucks were paid out of the “hauling revenue,” with the exception of operating expenses such as gasoline, repairs, and maintenance, which were paid by Powell out of his compensation. Powell received as his compensation the net amount of the hauling revenues.

Based upon the foregoing facts, the court filed findings of fact and conclusions of law to the effect that Wiergate had a regular and established place of business in Wier-gate, Newton County, Texas; that such business was not a transportation business; that lumber and lumber by-products were manufactured in the ordinary course of the business of Wiergate; that Wiergate transported such manufactured goods over the highways, merely incidental to the operation of its business; that at all times when such goods were transported over the highways, Wiergate was the bona fide owner of such goods; that at all times when such goods were transported “they were transported by means of motor vehicles of which Wiergate Lumber Company, Inc. was the bona fide owner.”

The State’s first two points of error complain of error by the trial court in refusing to grant the State’s requested additional findings as follows, to wit:

1. All financial burden and absorption of profit or loss for the transportation operations were borne by Powell pursuant to his agreement with Wier-gate.
2. That only Powell exercised substantial supervision over the transportation operations.

The trial court, in its findings of fact, specifically found that Wiergate was the bona fide owner of the goods being transported and that such goods were transported in vehicles of which Wiergate was the bona fide owner. Under these findings of fact, Wiergate was not a “motor carrier” or “contract carrier” according to the express provisions of Tex.Rev.Civ.Stat.Ann. art. 911b, § la(l)(a) (Vernon Supp. 1978). Since Powell was only an employee and “manager of the trucks” who had no duties with reference to loading, scheduling, or dispatching the trucks, and whose only duty was “strictly in delivery of the lumber after it was loaded and seeing that it was delivered on time,” he was not a “motor carrier” or “contract carrier” within the provisions of Article 911b.

The State has not challenged any of the findings by the court by a point of error, and, in the absence of such a challenge, they are binding upon the appellate court. Lovejoy v. Lillie, 569 S.W.2d 501 (Tex.Civ. App.—Tyler 1978, writ ref’d n. r. e.); Katz v. Rodriguez, 563 S.W.2d 627 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.); McBurnett v. Gordon, 534 S.W.2d 370 (Tex. Civ.App.—Beaumont 1976, writ ref’d n. r. e.).

The findings of fact made by the trial court and the undisputed evidence in the record precludes either Wiergate or Powell from being a motor carrier or contract carrier. Additional findings and conclusions are not required to be prepared and filed by the court where they do not relate to the ultimate or controlling issues, or where they conflict with the original findings and conclusions made and filed by the trial judge. Garcia v. Ramos, 546 S.W.2d 400 (Tex.Civ.App.—Corpus Christi 1977, no writ); Huber v. Buder, 434 S.W.2d 177 (Tex.Civ.App.—Fort Worth 1968, writ ref’d n. r. e.); Friedman v. Cohen, 429 S.W.2d 510 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n. r. e.). The refusal by the court to make and file the requested additional findings does not constitute error. These points are overruled.

The State’s third point is without merit and is overruled.

The judgment of the trial court is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: CLAYTON, Justice.

license: Public Domain

text:
    K. BROUSSARD et al., Appellants, v. LUMBERMENS MUTUAL CASUALTY CO. et al., Appellees.
    No. 8272.
    Court of Civil Appeals of Texas, Beaumont.
    May 24, 1979.
    James McNicholas, Beaumont, for appellants.
    Dewey Gonsoulin, David W. Ledyard, Beaumont, for appellees.
   CLAYTON, Justice.

Appellants Broussard and International Galvanizers, Inc., (Galvanizers) filed this suit against St. Paul Fire and Marine Insurance Company (St. Paul) and Lumbermens Mutual Casualty Company (Lumbermens) to recover the sum of $57,233.66, which sum Broussard had previously recovered in a judgment against Galvanizers. In a non-jury trial the court, based upon an agreed statement of facts, entered a take nothing judgment, from which judgment Broussard and Galvanizers appeal.

Broussard sustained a serious personal injury on July 31, 1970, on the premises of Galvanizers while helping to load a flatbed trailer with steel pipe, such trailer being owned by Galvanizers. Broussard and Industrial Labor Supply, Inc., were covered by a Texas Employers Insurance Association policy of worker’s compensation insurance. Broussard filed a worker’s compensation case against such insurance carrier and subsequently settled his claim against Texas Employers.

On March 17, 1972, Broussard filed a third party action against Galvanizers. The defense of this action was tendered by Gal-vanizers to St. Paul and Lumbermens. St. Paul had issued an automobile liability policy to David Dean, President of Galvanizers, and Lumbermens had issued to Galvanizers a comprehensive general liability policy. St. Paul and Lumbermens, after obtaining reservation of rights agreements, filed their answers in this case and subsequently withdrew their answers and defenses to such suit, and Galvanizers then assumed its own defense. On November 3, 1975, Broussard obtained a judgment against Galvanizers for the sum of $57,233.66. On February 22, 1977, Broussard and Galvanizers brought this suit against St. Paul and Lumbermens seeking to recover such sum under their policies.

Appellants Broussard and Galvanizers’ first point complains of error by the trial court in “ruling that Dean and International Galvanizers did not have ‘good cause’ for late notice of the accident.” Under the agreed statement of facts, it was agreed and stipulated by the parties that Broussard sustained serious injuries on July 31, 1970, which required hospitalization for over a month and medical treatment for several years; that Dean, President of Galvanizers, learned of Broussard’s accident and injuries on the same day but did not give notice of the accident to St. Paul or Lumbermens until he was served with suit papers in March 1972, some twenty months later; that no other representative of Galvanizers gave notice of such accident to St. Paul or Lumbermens prior to March 1972; and, that the only reason that Dean did not report the accident any sooner was because Broussard was being taken care of by his worker’s compensation carrier.

The policies issued by St. Paul and Lum-bermens contained the provision that in the event that an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents “as soon as practicable,” and that “no action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy. . . . ”

Compliance with the provision that notice be given “as soon as practicable” is a condition precedent, the breach of which voids policy coverage. Dairyland Mutual Ins. Co. of Texas v. Roman, 498 S.W.2d 154 (Tex.1973); Members Mutual Insurance Co. v. Cutaia, 476 S.W.2d 278 (Tex.1972); New Amsterdam Casualty Co. v. Hamblen, 144 Tex. 306, 190 S.W.2d 56 (1945); Klein v. Century Lloyds, 154 Tex. 160, 275 S.W.2d 95 (1955); Latham v. Mountain States Mutual Casualty Co., 482 S.W.2d 655 (Tex.Civ.App.—Houston [1st Dist.] 1972, writ ref’d n. r. e.); Carroll v. Employers Casualty Co., 475 S.W.2d 390 (Tex.Civ.App.—Beaumont 1971, writ ref’d n. r. e.).

The facts not being in dispute as to whether notice was given “as soon as practicable,” the question becomes one of law for the determination by the court. Commercial Standard Ins. Co. v. Harper, 129 Tex. 249, 103 S.W.2d 143, 146, 110 A.L.R. 529 (1937); Klein v. Century Lloyds, supra; Carroll v. Employers Casualty Company, supra; Norman v. St. Paul Fire & Marine Insurance Co., 431 S.W.2d 391 (Tex.Civ.App.—Beaumont 1968, no writ).

The phrase “as soon as practicable” as used in the notice provision of general liability policies requiring the insured to give the insurer notice of an accident or occurrence as soon as practicable means notice within a reasonable time, and what is a reasonable time depends upon the facts and circumstances in each particular case. Insurance Company of North America v. Asarco, Inc., 562 S.W.2d 557 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n. r. e.); Employers Casualty Co. v. Scott Electric Co., 513 S.W.2d 642 (Tex.Civ.App.—Corpus Christi 1974, no writ).

The delay of twenty months in giving notice of Broussard’s accident to the insurance companies did not constitute giving notice “as soon as practicable” as required by the insurance policies. See Edwards v. Ranger Insurance Co., 456 S.W.2d 419 (Tex.Civ.App.—Fort Worth 1970, writ ref’d n. r. e.); Standard Accident Insurance Co. v. Employers Casualty Co., 419 S.W.2d 429 (Tex.Civ.App.—Dallas 1967, writ ref’d n. r. e.); Norman v. St. Paul Fire & Marine Insurance Co., supra, and authorities cited therein; Lane v. Anchor Casualty Co., 355 S.W.2d 90 (Tex.Civ.App.—Houston 1962, no writ); Klein v. Century Lloyds, supra.

Galvanizers seeks to excuse or escape from the delay in giving the required notice of accident for the reason that Dean, President of Galvanizers, knew that Brous-sard was being taken care of by his worker’s compensation carrier. This was its sole excuse. This contention is legally insufficient to excuse the admitted failure to comply with the condition precedent in the policies of insurance. The excuse offered is not even a belief that Broussard would not make a claim against Galvanizers. It has been held the mere belief that the injured person would not make a claim against the insured is insufficient to excuse the late notice. Norman v. St. Paul Fire & Marine Insurance Co., supra; Kellum v. Pacific National Fire Insurance Co., 360 S.W.2d 538 (Tex.Civ.App.—Dallas 1962, writ ref’d n. r. e.). See Standard Accident Insurance Co. v. Employers Casualty Co., 419 S.W.2d 429, supra; Employers Casualty Co. v. Scott Electric Co., supra; Dunn v. Travelers Indemnity Co., 123 F.2d 710 (5th Cir. 1941); National Surety Corp. v. Diggs, 272 S.W.2d 604 (Tex.Civ.App.—Fort Worth 1954, writ ref’d n. r. e.). This point is overruled.

In view of our disposition of this appeal, we deem it unnecessary to consider the other points of error urged by appellants.

Finding no error, the judgment of the trial court is affirmed.

AFFIRMED.


author: KEITH, Justice.

text:
    Weldon HALL, d/b/a Hall’s Marine, Appellant, v. Gerald BEAN, et ux., Appellees.
    No. 8276.
    Court of Civil Appeals of Texas, Beaumont.
    May 31, 1979.

      Lynwood Sanders, Orange, for appellant.
    Donald B. Kelley, Orange, for appellee.
   KEITH, Justice.

Defendant below appeals from an adverse judgment entered in a jury trial of a consumer protection case. This case comes to us with an agreed statement of facts.

Defendant, individually and in conjunction with the Orange Boat Club, arranged or sponsored a boat race, utilizing the race to advertise his marina. He supplied or was responsible for furnishing all of the prizes for the contest.

Plaintiffs obtained an entry form from defendant, executed the form, and returned it to defendant. Plaintiffs executed an agreement to hold Orange Boat Club harmless, thereby relieving it of liability for any injuries sustained in the race. Plaintiffs executed no such forms relieving the Club of its liabilities for breach of contract of deceptive trade violations and executed no releases in favor of defendant.

On the Thursday prior to the Saturday race, a newspaper article stated that the first price was a 14-foot boat, trailer, and 20-horsepower motor. The testimony was conflicting as to the source of this information pertaining to the first prize. Plaintiff called Hall’s Marine and spoke with defendant or his employee or agent prior to the race in order to verify the newspaper article, and in reliance upon such representation, expended much time, money, and effort in preparation for the race.

Plaintiffs won first prize. However, after the race, defendant maintained that the news article was incorrect and caused it to be retracted on Sunday, the day following the race. Defendant offered plaintiffs a 6-horsepower outboard motor, which he maintained was first prize, but plaintiffs refused to accept it and demanded the advertised prize. Plaintiffs filed suit against defendant claiming that defendant’s conduct constituted an unconscionable act as contemplated by the Texas Deceptive Trade Practices — Consumer Protection Act, Tex. Bus. & Comm.Code Ann. § 17.50(a)(3) (Supp.1978-79) (hereinafter DTPA). Based upon the jury’s findings, the trial court held that defendant had committed an unconscionable act and a deceptive trade practice and that plaintiffs were accordingly entitled to three times their actual damages, which were stipulated as being $1,200.00, plus reasonable attorney’s fees ($1,400.00) pursuant to § 17.50(b)(1). Defendant has perfected his appeal from this judgment.

Plaintiffs contend that performance in response to an offer made in connection with a “prize contest” creates a binding, enforceable contract, citing Bowlerama of Texas, Inc. v. Miyakawa, 449 S.W.2d 357 (Tex.Civ.App.—San Antonio 1969, writ dism’d), and Kasling v. Morris, 71 Tex. 584, 9 S.W. 739 (1888). We agree. The evidence shows and the jury found that (1) defendant, his agent, or employee made an offer to the general public to award the winners of the 1975 Down River Boat Race a new 14-foot boat, trailer and 20-horsepower motor; and (2) plaintiffs accepted this offer by winning the race. Therefore, we find that because defendant breached this contract by refusing to give plaintiffs the advertised prize and claiming first prize was really a 6-horsepower outboard motor, defendant is liable for the stipulated value of the offered prize.

Plaintiffs, however, pleaded and the court held upon the jury’s findings that defendant was liable for treble damages and attorney’s fees because he had violated § 17.-50(a)(8) of DTPA. Defendant contends that the DTPA is not applicable because plaintiffs were not “consumers” under the Act.

One must be a “consumer” as defined by § 17.45(4) of the DTPA in order to bring suit under the Act. Bourland v. State, 528 S.W.2d 350, 358 (Tex.Civ.App.—Austin 1975, writ ref’d n. r. e.); Cape Conroe Limited v. Specht, 525 S.W.2d 215, 218-19 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ), overruled on other grounds, Woods v. Littleton, 554 S.W.2d 662 (Tex. 1977). The jury charge, which follows § 17.45(4), defines “consumer” as “[a]n individual who seeks or acquires by purchase or lease, any goods or services.” The word “purchase” is not defined so we must look elsewhere for its common and ordinary meaning, according to the rules of statutory construction. Satterfield v. Satterfield, 448 S.W.2d 456, 459 (Tex.1969); Sanchez v. Brandt, 567 S.W.2d 254, 258 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n. r. e.).

Black’s Law Dictionary (4th Ed. Rev. 1968) defines “purchase” as the “[transmission of property from one person to another by voluntary act and agreement, founded on a valuable consideration.”

It is apparent that plaintiffs did not “purchase” the prize which they sought — no valuable consideration passed between plaintiffs and defendant. Defendant merely contracted that the winner of the boat race would receive a certain prize, and plaintiffs were the winners. Therefore, plaintiffs cannot be classified as “consumers” and, consequently, cannot recover treble damages or attorney’s fees as provided by the DTPA.

Plaintiffs contend that if the Act is not applicable, they can still recover attorney’s fees under Tex.Rev.Civ.Stat.Ann. art. 2226 (Supp. 1978-79). We find no merit to this contention. Plaintiffs sought to recover under the terms of DTPA and we have held that they may not recover under that Act. They have not shown themselves entitled to recover attorney’s fees in this cause. See and compare Reiger v. DeWylf, 566 S.W.2d 47, 48 (Tex.Civ.App.—Beaumont 1978, writ ref’d n. r. e.).

Accordingly, thé judgment of the trial court is reformed to provide that plaintiffs are entitled to actual damages in the amount of $1,200.00 and, as reformed, is affirmed. Costs are adjudged against plaintiffs.


author: BARDGETT, Judge.

text:
    STATE of Missouri, Respondent, v. Andre WRIGHT, Appellant.
    No. 61045.
    Supreme Court of Missouri, En Banc.
    June 19, 1979.
    Lee M. Nation, Kevin R. Locke, Asst. Public Defenders, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Brenda Farr Engel, Asst. Atty. Gen., Jefferson City, for respondent.
   BARDGETT, Judge.

Defendant-appellant Andre Wright appeals from a judgment of conviction entered by the Circuit Court of Jackson County whereby the appellant, after having been found guilty of robbery first degree (sec. 560.120, RSMo 1969), by a jury, was sentenced to eighteen years’ imprisonment. The Missouri Court of Appeals, Western District, affirmed, after which appellant’s motion for transfer to this court was granted to examine the question of whether the court of appeals opinion was in conflict with State v. Nimrod, 559 S.W.2d 592 (Mo.App. 1977), a companion case, in which an issue on appeal involved the admission of the same evidence, to wit, a wallet of one Wilder, and the prosecutor’s jury argument in connection therewith. Art. 5, sec. 10, Mo. Const., as amended 1970; Rule 83.03.

Appellant is the third of three defendants involved in the robbery. The first defendant’s trial, conviction, and appeal are reported in State v. Nimrod, supra. The second defendant’s trial, conviction, and appeal are reported in State v. Jerome B. Wright, 571 S.W.2d 734 (Mo.App.1978).

The victim, Gary Jacobs, testified that he was accosted by three assailants on July 13, 1975, who beat him and took his wallet and watch. He identified the appellant as one of the three. A private security guard who had been fortuitously passing testified that he had come to the aid of the victim. He identified the appellant and another assailant by their clothing, and the third by his face. Police officer Michael Vrentas testified that the appellant was wearing a brown tank-top shirt and brown trousers on the night in question. Officer Daniel A. Kroog also testified to that effect. Appellant moved to dismiss on the basis of destroyed evidence and officer John Rearden testified that he had inadvertently destroyed appellant’s clothing. Appellant testified on the motion that he had not been dressed as was described but instead had been wearing a checked shirt. The motion to dismiss was overruled.

Officer Vrentas testified that he and officer Kroog had been dispatched to check on suspicious parties riding in a white 1975 Chevrolet Vega. The officers stopped a vehicle answering that description and arrested all four occupants of the automobile, one of whom was the appellant. The officers observed Nimrod placing objects under the vehicle as he stepped from it. The recovered objects were two wallets, one belonging to the victim Jacobs, and one which did not belong to any of the occupants of the automobile. The latter wallet was received in evidence over objection. Although its owner was not affirmatively identified to the jury, the testimony specifically excluded each of the alleged participants and Jacobs as owners.

During the course of appellant’s case, his attorney, in chambers, discussed with the court and the prosecuting attorney the fact that the state intended calling Dorothy McKelvey Wright as a rebuttal witness and that Ms. Wright had advised both the appellant’s attorney and the prosecuting attorney’s office that if she were called to testify regarding her actions on the night in question she intended to avail herself of the Fifth Amendment privilege against self-incrimination. Ms. Wright has invoked the Fifth Amendment in a previous trial on the witness stand in refusing to testify. State v. Wright, supra. Appellant objected to the calling of this witness on a number of grounds, among which was that when she refuses to testify on self-incrimination grounds and because she was arrested with the appellant the jury would infer guilt on the part of the appellant. However, the state called her anyway. She did refuse to testify by invoking the Fifth Amendment, the same as she did in State v. Wright, supra. The state referred to the second wallet in argument as set forth infra.

On appeal the appellant makes three points. He contends, first, that the trial court erred in overruling appellant’s objection to the calling of witness Dorothy McKelvy Wright and in failing to strike said testimony as irrelevant, improper rebuttal, and highly prejudicial. Second, he contends that the court erred in overruling appellant’s objections to the admission of the second wallet in that it was evidence of another crime and irrelevant, immaterial, and highly prejudicial. Third, he contends that the court erred in overruling appellant’s motion to dismiss or to suppress identification evidence where the state destroyed evidence (certain clothing of appellant) which tended to negate appellant’s guilt. He contends the nonproduction of said evidence was in violation of the rule of discovery, denied appellant’s right to due process of law, and denied his rights to effectively confront the evidence against him.

I.

Appellant’s second point will be taken up first. Appellant contends that the admission into evidence of the wallet belonging to Wilder was error and he was prejudiced thereby. Although the state was not allowed to refer to the owner of the wallet by name, the state was allowed to show in evidence that it did not belong to any of the occupants in the car or to the victim of this robbery, Mr. Jacobs. Appellant contends the Wilder wallet was evidence of another crime, unrelated to the crime for which appellant was on trial, save for the fact that it was found when appellant was apprehended. The state argued the evidence of the Wilder wallet during the trial and in closing argument.

Evidence of other crimes, unrelated to that for which an accused is presently standing trial, violates the defendant’s right to be tried only for the offense for which he was indicted and is error. State v. Nimrod, supra; State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920 (1947); State v. Holbert, 416 S.W.2d 129 (Mo.1967); State v. Walker, 490 S.W.2d 332 (Mo.App.1973). The state contends that, even if admission of the wallet as evidence were error, it was not prejudicial to the appellant because it represented an insignificant part of the state’s case in view of the overwhelming nature of the evidence of guilt presented against appellant. The state cites Nimrod as controlling. Nimrod is controlling on the issue that admission of the second wallet was error, but Nimrod is not controlling with regard to the prejudicial nature of that error and is distinguishable from the case at bar. In Nimrod the court considered the challenge to the introduction of the Wilder wallet under the plain-error standard of review. Unlike appellant in the present case, the defendant in Nimrod failed to preserve the error for appeal. Therefore, it was defendant’s task to convince the court that “manifest injustice” resulted. Rule 27.20(c). Respondent concedes that in this case appellant has properly preserved the error for review.

Harmless error is not grounds for reversal, State v. Spica, 389 S.W.2d 35, 53 (Mo.1965); however, error in the admission of evidence should not be declared harmless unless it is so without question. State v. DeGraffenreid, 477 S.W.2d 57 (Mo. banc 1972), citing State v. Wynne, 353 Mo. 276, 182 S.W.2d 294, 300 (1944), and State v. Richards, 334 Mo. 485, 67 S.W.2d 58, 61 (1933). The Wynne court said, “The record does not demonstrate that the defendant was not injured by the error as by showing that the jury disregarded or could not have been influenced by the evidence.” Similarly, in the present ease, respondent has failed to show that the jury was not influenced by the introduction and argument of the wallet. If the wallet did enter the jury’s deliberation, appellant has been denied his right to stand trial only for the crime with which he is charged and to have the jury determine his guilty with reference only to the evidence presented with regard to that crime.

Respondent contends the Wilder wallet was a rather innocuous item of evidence and was only a small part of the state’s case; that any crime the Wilder wallet “may have implied appellant committed was of much less consequence than the brutal crime the evidence showed the appellant had committed”; the wallet was never passed to the jury and “the two small references to this evidence [Wilder wallet] in the transcript were never reinforced by allowing the jury to view the wallet”.

Respondent acknowledges that the admission of the Wilder wallet into evidence was error, State v. Nimrod, supra, a companion case to this one so held, and therefore that the burden is upon the respondent-state to show this evidence was harmless error beyond a reasonable doubt.

The Wilder wallet was admitted with the following testimony of officer Kroog:

“Q All right, sir. And after you observed this, what if anything did you do towards recovering those objects?
A I personally recovered them.
Q You personally recovered them?
A Yes.
Q And what were the objects?
A They were two men’s billfolds, leather billfolds.
Q All right, sir. I’ll hand you what’s been marked and received in evidence as State’s Exhibit No. 6 and ask if you can identify that.
A Yes, sir, it’s one of the billfolds I found underneath the vehicle.
Q All right, sir. Whose identification did that billfold contain?
A It had the identification belonging to a Mr. Gary Jacobs.
Q All right, sir. And did it have any money in it at the time you recovered it?
A No, sir, it did not.
Q I’ll hand you what’s been marked as State’s Exhibit No. 7 and ask if you can identify that.
A Yes, sir. This was also recovered in the same location as the first wallet.
Q Now let me ask you, Office Kroog, did that wallet, State’s Exhibit No. 7, contain the identification of Edward Nimrod?
A No, sir.
Q Did it contain the identification of Jerome Wright?
A No, sir.
Q Did it contain the identification of Andre Wright?
A No, sir.
Q Did it contain the identification of Dorothy Wright or Dorothy Wright McKelvy?
A No, sir.
MR. DAKOPOLOS: At this time the State would offer in evidence State’s Exhibit No. 7, Your Honor.”

The appellant objected to exhibit 7 because it had not been shown to be connected to the crime and constituted evidence of a crime for which appellant was not on trial; the objection was overruled. It is clear the jury saw the wallet and, under the evidence, it is also clear the wallet did not belong to any of the participants to the robbery of Gary Jacobs or to Jacobs. It is clear from the tenor of the testimony that the prosecutor’s purpose in using the wallet as evidence was to show the possession of a personal item which would ordinarily contain money and which was owned by someone else. In State v. Nimrod, supra, the evidence disclosed that two wallets were found, one belonging to the victim Jacobs, and the other to one Wilder. In Nimrod the court of appeals found there had only been a passing reference to the Wilder wallet; however, in the instant case, the same cannot be said. In addition to the testimony noted supra, the assistant prosecuting attorney, Mr. Robert Dakopolos, who also tried the Nimrod case, and was aware of the probable error attending the use of the second wallet, in the opening part of his argument to the jury challenged defense counsel to explain how the wallets got under the car:

“The issue is Do you believe Danny Kroog’s testimony when he said, I saw Edward'Nimrod drop an object or objects under the side of that car, and that he went up there and recovered the wallet of Gary Jacobs who had been robbed and viciously beaten minutes before and the other wallet. Have Mr. Fletcher explain to you how those wallets got there.” (Emphasis supplied.)

The defense was alibi and faulty identification of this appellant. Defense counsel, in response to the challenge, questioned the accuracy of what the police officers claimed to have seen regarding the wallets and the validity of the prosecution testimony regarding the destruction of some clothing but not the wallets. Then, in the prosecutor’s closing argument, he said:

“And you’ll remember this other wallet found there with Gary Jacobs’ wallet. He mentioned about the suspicious parties call at 40th and Bell. We don’t know what happened at 40th and Bell, that’s true. But we found two wallets, Gary Jacobs’ and one wallet not belonging to any of the four parties in that car, dropped there by Edward Nimrod.
MR. FLETCHER: Your Honor, I’ll object to that.
THE COURT: Overruled.
MR. DAKOPOLOS (Continuing): Gentlemen, the conclusive evidence in the case points only one way and that’s to the guilt of this defendant, Andre Wright, along with his conspirators, Jerome Wright and Edward Nimrod. And the only verdict that you can return is one of guilty.”

We can hardly say the admission of the Wilder wallet was harmless error in view of the obvious use the assistant prosecuting attorney made of this evidence by his blatant argument that appellant and his associates had obtained the wallet by committing another crime at 40th and Bell. The admission of the Wilder wallet, over objection, was error, and the use made of the evidence by the assistant prosecuting attorney convinces us that the error was prejudicial. For this reason the judgment must be reversed and the cause remanded for a new trial.

II.

Because the cause is remanded for a new trial, we deem it desirable to discuss appellant’s contention concerning the calling of one Dorothy McKelvy, a/k/a Dorothy Wright by the state as a rebuttal witness as the problem may recur.

Dorothy McKelvy was apprehended driving the vehicle in which the three males, including appellant, charged with the robbery, were apprehended and all were arrested together. Admittedly, Dorothy McKelvy could have been charged with the robbery also. In State v. Wright, supra, a companion case tried prior to the instant one, defendant Jerome Wright objected to the state’s calling Dorothy McKelvy as a witness on the ground that she would refuse to testify on self-incrimination grounds; this objection was overruled by the trial court and the witness was called and refused to testify on self-incrimination grounds. We do not know if, in the earlier case, she was called in the state’s case-in-chief or on rebuttal. The judgment of conviction was affirmed by the court of appeals, western district, and we denied transfer.

The court of appeals held it was not improper, under Missouri practice, for the court to require a witness to claim the privilege against incrimination in the presence of the jury, citing State v. Phillips, 511 S.W.2d 841 (Mo.1974), and State v. Yager, 416 S.W.2d 170 (Mo.1967). However, in the Jerome Wright ease, the court of appeals recognized that, “It is true, as defendant argues, that under the general rule, the refusal of a witness to testify on the basis of the Fifth Amendment does not permit any inference favorable or unfavorable to either of the parties in the case and should not be so argued.” 571 S.W.2d at 735.

In the instant case, the prosecuting attorney and the court were informed, prior to Dorothy McKelvy’s rebuttal appearance, that she would invoke the Fifth Amendment. The prosecutor acknowledged he knew she had invoked the Fifth in the Jerome Wright case, but said he didn’t know if she would or would not do so again. The appellant’s objection was that by calling Dorothy McKelvy to the stand and questioning her about events of July 13 would, when she “took the 5th amendment”, provide the logical basis upon which reasonable people (jury) would be expected to infer that her answers, if given, would be inconsistent with a defense witness, Jerome Wright, and consistent with the guilt of the appellant. Appellant also objected on the ground that he would be denied his right to confront (cross-examine) her because her refusal to testify forecloses further inquiry into the subject of the questions asked but left unanswered.

The prosecutor did not, at first, state what the witness’s testimony would rebut but simply that the state has a right to call a witness “and if, in fact, she does want to take the Fifth Amendment, it should be done in front of the Court and jury.” The court opined there was a possibility she would not take the Fifth but believed that the state had a right to call her “so if she’s going to take the Fifth, it should be, then before the jury.”

Later, but before she took the stand, defense counsel again inquired as to what the prosecutor expected her testimony to be. The prosecutor responded by stating she had given previous statements that “rebut” Jerome Wright’s testimony relative to the auto trip on the night in question in that she had said earlier that she stopped the car on two separate occasions and all three persons exited from the car, were gone some minutes, and returned to the car running, and reentered the car. The defense counsel responded, saying that whether the witness made such a statement earlier was irrelevant, as the question before the court was what the state intends she will testify to in rebuttal and whether the prosecutor knows she will refuse to testify on self-incrimination grounds. The objection was again overruled.

The right of parties to litigation, including the state, to call witnesses is obviously extremely important. Restricting a party’s right to call a witness to the stand upon the prediction of the other party that the witness will refuse to testify is tenuous and presents a real danger to the truth-seeking process of trials. An example of this is found in the case of Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963), cited by appellant as authority in support of his point that the court erred in permitting the witness to testify. In Namet the government was going to call two people, Mr. and Mrs. Kahn, who had earlier pled guilty to charges arising out of wagering law violations, the crime with which Namet was charged. Defense counsel told the court and the government’s attorney that the Kahns would refuse to testify on self-incrimination grounds and objected to the government calling them as witnesses. The objection was overruled and the Kahns were called to the stand. As it turned out, the Kahns testified to some matters which were in dispute and material to the government’s case and invoked the Fifth Amendment as to others. The court stated at 185-187, 83 S.Ct. at 1154-1155:

“The petitioner’s principal contention is that reversible error was committed in permitting the Government to question the Kahns after it was known that they were going to claim their privilege not to incriminate themselves. It is said that when a witness is asked whether he participated in criminal activity with the defendant, a refusal to answer based on the privilege against self-incrimination tends to imply to the jury that a truthful answer would be in the affirmative. This inference, the petitioner argues, cannot properly be used as evidence against a criminal defendant. To support this argument, the petitioner relies on dicta in several federal cases and upon the decision in United States v. Maloney, 262 F.2d 535, in which the Court of Appeals for the Second Circuit said, ‘Such refusals [to testify] have been uniformly held not to be a permissible basis for inferring what would have been the answer, although logically they are very persuasive.’ Id., 262 F.2d at 537.
“None of the several decisions dealing with this question suggests that reversible error is invariably committed whenever a witness claims his privilege not to answer. Rather, the lower courts have looked to the surrounding circumstances in each case, focusing primarily on two factors, each of which suggests a distinct ground of error. First, some courts have indicated that error may be based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege. This seems to have been one of the principal reasons underlying the finding of reversible error in United States v. Maloney, supra. In that case, the prosecution admitted knowing that two of its key witnesses could validly invoke the privilege against self-incrimination and intended to do so. The prosecutor nevertheless called and questioned them. The court also found that the Government’s closing argument attempted to make use of the adverse inferences from their refusals to testify. See also United States v. Tucker, 3 Cir., 267 F.2d 212. A second theory seems to rest upon the conclusion that, in the circumstances of a given case, inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant. This theory seems also to have been present to some extent in the Maloney decision, where the court noted that the challenged inferences were the only corroboration for dubious and interested testimony by the Government’s chief witness. 262 F.2d, at 536-537. On the other hand, courts have failed to find reversible error when such episodes were ‘no more than minor lapses through a long trial.’ United States v. Hiss, 185 F.2d 822, 832 (C.A.2d Cir.). See also United States v. Amadio, 215 F.2d 605, 614 (C.A.7th Cir.). And even when the objectionable inferences might have been found prejudicial, it has been held that instructions to the jury to disregard them sufficiently cured the error.”

In the instant case the state, in its brief, undertakes to justify the calling of Dorothy MeKelvy as follows:

“. . . The appellant claims that this testimony was improper rebuttal because it was of no value in that it did not tend to prove a material proposition nor did it intend to rebut any evidence offered by the appellant. The statement by Ms. Wright, however, that her testifying as to the events of the evening would incriminate her rebuts the testimony of Jerome Wright, appellant’s witness, whose story of the events on the night in question described activities on the part of Ms. Wright which were not illegal. All the questions asked Ms. Wright involved the events about which Jerome Wright had testified. If Jerome Wright’s testimony had been completely truthful, then Ms. Wright would not have found it necessary to claim the Fifth Amendment privilege. Thus the State’s making Ms. Wright claim her Fifth Amendment privilege on the stand was logically relevant in this ease. Even though the forcing of Ms. Wright to take her privilege on the stand was logically relevant, it might have been improper for the court to allow the State to force her to take the stand if her taking the stand either violated one of appellant’s Constitutional rights or constituted some form of evidentiary trial error. The appellant, however, has cited no case law holding that allowing the State to force a witness to claim the Fifth Amendment privilege on the stand violates the federal Constitution, nor has he cited any case law that it either violates the Missouri Constitution or that it constitutes evidentiary trial error in Missouri.”

We are thus confronted with the state’s undertaking the calling of the witness in order to obtain the advantage of the inference derived from her refusal to testify on self-incriminatory grounds, to wit, that she, the appellant, and the witness Jerome Wright were engaging in criminal activity. In short, the state argues, in effect, that the witness was called by the state for the purpose of requiring her to refuse to testify before the jury in order that the jury could infer from her refusal that the appellant committed a crime because whatever the witness and Jerome Wright were doing, so too were the rest of the people in the car, including appellant.

The question of whether the witness should be permitted to testify when it is claimed that the witness will invoke the Fifth Amendment must rest in the discretion of the trial judge. That discretion, of course, can be abused.

In the instant case there is no realistic basis for believing the witness would testify to any material matter nor is there anything in the record which would form any basis for a reasonable belief on the prosecutor’s part that she would do anything other than refuse to give any relevant or material testimony and do so on self-in.crimination grounds. Indeed, the state’s main argument in support of the trial court’s ruling is that the relevancy of Dorothy McKelvy’s appearance in rebuttal was that her refusal to testify on self-incrimination grounds constituted a basis (evidence) the jury could, and logically would, use to infer some guilt to Jerome Wright and appellant.

The holdings of State v. Phillips, supra, State v. Yager, supra, and State v. Jerome Wright, supra, that it is not error for the court to require a witness to “claim the privilege against incrimination in the presence of the jury” presupposes some legitimate basis for calling the witness in the first place, such as some reasonable basis for believing the witness will give some relevant and material testimony. In this case, as in Namet, the prosecutor justifiably believed the witness had information which was material and relevant if she would answer the pertinent questions. In Namet the court pointed out that the prosecutor need not accept at face value every asserted claim of privilege, no matter how frivolous. In Namet there was a legitimate question concerning the privilege and, as it turned out, the witness did testify to some material matters although invoking the privilege as to others.

In the instant case there was never any question raised as to whether Dorothy McKelvy could legally invoke the privilege by the prosecutor or the court, nor was there any real doubt but what she would refuse to answer all material questions on Fifth-Amendment grounds. If there had been any doubt about that, the court could have allowed interrogation of the witness under oath out of the hearing of the jury, entertained any claims of privilege, ruled on them, and made any coercive orders to compel testimony which were legal and proper, if any were legal and proper. In the instant case, unlike Namet, it appears the privilege was legally allowable and therefore no such orders would have been appropriate.

To approve the trial court’s ruling under the facts and circumstances of this case, and the respondent’s declared purpose in using the witness in rebuttal, would be tantamount to holding that the state may call a witness to the stand without any reasonable expectation of eliciting material evidence but only to let the jury know the witness considers her conduct to have been criminal in nature so that the jury could infer the defendant is guilty. This is not the intent of prior Missouri cases nor of Namet.

It would seem obvious that this problem does not lend itself to solution by any hard and fast rule. It is a matter that requires the exercise of sound judgment giving due consideration to the facts and circumstances prevailing at the time the question arises. What we can be certain of, however, is that one end of the spectrum has been reached where, as here, the state declares that the benefit it expects to obtain from the witness is not from any material evidence to be given, but solely from the fact that the witness will be required to invoke the Fifth Amendment in the jury’s presence in order that the jury will believe from such claim of privilege that the witness and the defendant were engaged in criminal conduct. In those circumstances, the objection to a witness testifying should be sustained.

The foregoing is set forth to resolve the point under the circumstances as they existed at the time the issue arose in this trial and for guidance at retrial. Whether the circumstances will be the same or similar on retrial is not predictable, but what is said supra should afford guidance should the matter recur.

III.

Appellant contends the court erred in overruling his motion to dismiss the indictment or suppress identification testimony because the police officers had destroyed certain evidence — the clothing of Jacob’s alleged assailants and of the appellant. The record indicates the clothing was inadvertently destroyed by the police prior to trial. There is no evidence that such was done to subvert discovery or in bad faith or for any other nefarious reason. The destruction occurred long before any request for discovery was made. We have considered the point; it has no merit and is overruled.

The judgment is reversed and the cause remanded for a new trial.

DONNELLY, SEILER, SIMEONE and WELLIVER, JJ., concur.

MORGAN, C. J., and RENDLEN, J., concur in result.

      . “DIRECT EXAMINATION BY MR. DAKO-POLOS: _
      Q Would you state your name to the Court and jury, please.
      A Dorothy McKelvy.
      Q Are you also known as Dorothy Wright?
      A Yes.
      Q Where do you live?
      A 1648 Ella Fitzgerald, Kansas City, Missouri.
      THE COURT: Excuse me.
      A JUROR: I don’t believe the jury can hear, Your Honor.
      THE COURT: Speak up a little more, please. What is your address again, please?
      A 1648 Ella Fitzgerald. „
      Q (By Mr. Dakopolos) On the night of July 13th, 1975, did you let Edward Nimrod, Andre Wright, and Jerome Wright out of the car in the vicinity of 39th and Stateline and then have them run back to the car a few minutes later and hop in?
      A On the advice of my attorney, I respectfully refuse to answer on the grounds it might tend to incriminate me.
      MR. DAKOPOLOS: Did you hear that?
      A JUROR: Barely sir.
      THE COURT: Speak up and repeat it louder, please.
      A On the advice of my attorney, I respectfully refuse to answer on the grounds that it might tend to incriminate me.
      Q (By Mr. Dakopolos) Was your brother, who allegedly lived at 36th and Genessee, home on the night of July 13th, 1975?
      A On the advice of my attorney I respectfully refuse to answer on the grounds that it might tend to incriminate me.
      MR. DAKOPOLOS: No further questions. CROSS-EXAMINATION BY MR. FLETCHER: ___
      Q Who is your attorney?
      A Douglas Merritt.
      Q Is he a private attorney?
      A. Yes.
      Q Did you retain Mr. Merritt to represent you in connection with the possibility of any charges being brought against you in connection with this case?
      A Yes.
      Q Has Mr. Merritt advised you to take the Fifth Amendment?
      MR. DAKAPOLOS: I’ll object to anything that Mr. Merritt may have advised her as hearsay, Your Honor.
      MR. FLETCHER: Well, Your Honor, I think the prosecuting attorney has opened it up. I think I’m entitled to inquire.
      THE COURT: The objection is overruled.
      Q (By Mr. Fletcher) Did Mr. Merritt advise you to take the Fifth Amendment in regard to any questions propounded to you—
      A Yes.
      Q —in regard to the night of July 13th, 1975?
      A Yes.
      Q You were, in fact, arrested with Jerome Wright and Andre Wright and Edward Nimrod on July 13, 1975, weren’t you?
      A Yes.

        Q Have you ever been advised by your attorney or anyone else that anything that you say might be used against you in connection with the prosecution of a charge of robbery?
      A Yes.
      Q Is it based solely upon that advice on which you refuse to testify?
      A Yes.
      MR. FLETCHER: I have nothing further. REDIRECT EXAMINATION BY MR. DAKO-POLOS: _
      Q Miss Wright — or Miss McKelvy — there are no charges pending against you at this time, are there?
      A No.”


author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. Thomas C. HEAVEY, Appellant.
    No. KCD 29834.
    Missouri Court of Appeals, Western District.
    April 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 11, 1979.
    Application to Transfer Denied July 17, 1979.
    Clifford A. Cohen, Public Defender, Kevin R. Locke, Lee Nation, Asst. Public Defenders, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Thomas Heavey was convicted of assault with intent to commit sodomy, § 559.180, RSMo 1969. He was sentenced to confinement for thirty years under the Second Offender Act.

On this appeal Heavey contends the trial court erred in overruling his motion to quash the jury panel because the procedure followed in Jackson County for the selection of jury panels denied him a jury that was representative of a cross-section of the community in violation of his rights under the Sixth Amendment of the United States Constitution. Reversed and remanded.

Heavey was tried in August, 1977. His counsel filed a written motion to quash the jury panel because the Jackson County procedure for selection of jury panels denied him a fair cross-section of the community in the composition of his jury. In addition, Heavey filed a pro se motion.

Following an evidentiary hearing on a motion to suppress evidence held prior to the beginning of the trial, counsel orally moved to quash the jury panel upon the same grounds as previously asserted. During argument on that motion, Heavey’s counsel stated he and the State had entered into a stipulation to the effect that the selection of jury panels used in the past was the same procedure by which the jury panel about to hear Heavey’s case was chosen. The following then occurred:

MS. FORTNEY: In reference to that stipulation, the State would stipulate to the testimony as to the ’77 wheel that was given in the Claude M. Hardy case, which was in front of Judge Randall in Division Four, and that testimony was in regard to the ’77 jury wheel, and the State would stipulate to that testimony. THE COURT: That it was the same as the ’76?
MS. FORTNEY: Yes. It is my understanding that that’s what that testimony was.

The State contends on this appeal that Heavey’s contention concerning the composition of the jury wheel is not tenable because there is no evidence in the record to show the number of women whose names were in the wheel from which Heavey’s jury was selected. The State contends the only evidence in this record is the composition of jury wheels in 1976 which cannot be applied here to a trial which occurred in 1977. It is obvious from the statement by the assistant prosecuting attorney, quoted above, that the method of selection and the composition of jury wheels in Jackson County was the same in 1977 as it was in 1976.

The prosecutor referred to the Claude M. Hardy case. The Hardy case was appealed to this court and the conviction was affirmed in State v. Hardy, 568 S.W.2d 86 (Mo.App.1978). In that case Hardy attacked the jury selection system as applied to Jackson County and this court relied on State v. Duren, 556 S.W.2d 11 (Mo. banc 1972) and affirmed. Thereafter the United States Supreme Court in Duren v. Missouri, 439 U.S. -, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979) held the composition of the jury wheel in Jackson County and the number of women who serve under the selection process employed in that County denied Duren a fair cross-section of the community in the composition of his jury in violation of his rights under the Sixth and Fourteenth Amendments. Hardy also appealed his conviction to the United States Supreme Court, and in Hardy v. Missouri, - U.S. -, 99 S.Ct. 1037, 59 L.Ed.2d 85 (1979) the Court vacated the judgment of this court and remanded the case for further consideration in light of Duren. On reconsideration, this court reversed Hardy’s conviction by order and remanded the case for a new trial.

In the case at bar the prosecutor stated the evidence in this case was the same as that in Hardy. The United States Supreme Court ordered reconsideration of the Hardy judgment and on remand this court reversed the conviction because of the jury selection system. If the facts in Hardy concerning the jury selection system and the composition of the jury wheel apply in this case, as they must in view of the prosecutor’s statement, a fortiori the same result must obtain in this case.

Unfortunately, the briefs in this case were both filed prior to the decision of the United States Supreme Court in Duren, so this court does not have the benefit of the State’s position in light of that decision. However, this court can only proceed on the basis of the briefs on file.

Heavey also contends the court erred in sentencing him under the Second Offender Act because the information failed to allege that the crime for which he had been previously convicted is one “punishable by imprisonment in the penitentiary.” This court has had recent occasion to explore that same contention in State v. Neighbors, 579 S.W.2d 690 (Mo.App.1979) and resolved the question against Heavey’s contention.

Heavey raises one other question concerning the information, but the State will have ample opportunity to consider Heavey’s argument and to make any amendment it desires.

The judgment is reversed and the cause is remanded for a new trial.

All concur.


author: SWOFFORD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Frank WORTHINGTON, Appellant.
    No. KCD 29808.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 3, 1979.
    Application to Transfer Denied July 17, 1979.

      J. Martin Kerr, Tittle & Kerr, APC, Independence, for appellant.
    John D. Ashcroft, Atty. Gen., Eric Martin, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SWOFFORD, Chief Judge.

The appellant (defendant) was charged by information with the felonies of Sodomy (Count I) under § 563.230 RSMo 1969, and with Molesting a Minor with Immoral Intent (Count II) under § 563.160 RSMo 1969. The defendant, represented by counsel, waived a jury and was tried before the court below, found guilty, sentenced to five (5) years on each Count, the sentences to run concurrently, and he appealed. The charges were based upon acts by the defendant involving a 13-year-old male, an employee of the defendant, who was the only witness for the State. The defendant did not testify and offered no evidence on his own behalf. The facts supporting the charges, necessary to the decision of this appeal, in summary, are as follows:

As noted, the sole witness for the State was F_E_H_, a male, thirteen years of age at the time of the alleged offenses and fourteen years of age at the time of the trial. The defendant was the operating manager of a motel on the east side of Kansas City. F._ E_ H_ attended school, and sometime in April, 1976, he and some other boys commenced doing odd jobs at the motel for the defendant, such as cleaning up around the swimming pool and parking lot, cleaning rooms and working in the restaurant. They were paid for this work.

F— E— H— testified that sometime in April, 1976, he spent the night at the motel and he and the defendant occupied the same bed, and the defendant “just played with me”. Several incidents were related by the witness following this occurrence where the defendant had the witness “jack him off” and asked the witness to “suck him”, which he refused to do.

On August 19, 1976, F_ E_ H_ testified as to two incidents. One occurred in a regular room on a third floor of the motel where the witness stated he “jacked off” the defendant but again refused to “suck him” (this constitutes the basis for the charge in Count II) and later that day, at about 6:30 p. m. in the laundry room where the witness was folding sheets, at the defendant’s request the witness “jacked him off” and “sucked him” (this constitutes the basis for the sodomy charge in Count I). Thereafter, F_ E_ H_ advised his brother and his parents of these facts and this proceeding ensued.

The defendant raises in his first three assignments of error the charge that § 563.-230, the then sodomy statute, is facially unconstitutional and void, in that it violates the constitutional rights of privacy as guaranteed by the First and Fourteenth Amendments to the Constitution of the United States, and Article I, Section 2, of the Missouri Constitution; that he did not waive his right to raise this constitutional issue on appeal; and, that he has standing to assert this constitutional issue. The State, on the other hand, meets this position by denial of the charge of uneonstitutionality of the statute and asserts that even if such constitutional infirmity exists, the same was waived by the failure of the defendant to raise that issue at any stage of the proceedings before his brief in this Court. (The record discloses, in fact, that the defendant did not move to quash or otherwise attack the information; did not raise the constitutional issue either before, during or after trial in the court below; and did not raise it in his notice of appeal or otherwise in this Court until he filed his brief.) Further, the State strongly asserts that the defendant lacks standing to challenge the constitutionality of § 563.230 RSMo 1969.

Defendant’s constitutional argument may be thus summarized: He asserts that § 563.230, the sodomy statute, is void and invalid on its face since it violates the right to privacy, as recognized to exist by the Supreme Court in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), between married persons in the privacy of their bedroom inherent in the marriage relationship, and as later extended to unmarried adults consenting, by that court in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972).

The threshold question for this Court’s determination is whether the defendant, in the light of the facts shown by this record, has standing to present these constitutional questions. If he does enjoy such standing, since he asserts that the statute in question is facially unconstitutional and void, this appeal would involve the construction of the Constitution, as compared to the application of constitutional principles, cannot be waived and this appeal must be transferred to the Supreme Court of Missouri. State of Missouri v. Mitchell, 563 S.W.2d 18 (Mo. banc 1978). On the other hand, if he lacks such necessary standing, the constitutional issues here raised, for the first time, cannot be considered on this appeal.

Further elaborating upon defendant’s somewhat ingenious and convoluted argument as reflected in his briefs, he takes the position that § 563.230 invades the constitutional right to privacy of “every Missouri citizen” in that it proscribed “what a married couple does in the privacy of their bedroom” and private sexual activity of consenting adults. Such constitutional rights to privacy have, indeed, been recognized by the Supreme Court of the United States in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), as to married persons, and in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), as to consenting adults, and other federal and state authorities. However, never, so far as the briefs here filed and independent research disclose, has this constitutionally protected right to privacy been extended to a factual situation such as disclosed by this record.

Running as a silver thread through all of the federal and state authorities relating to the constitutionally protected right to privacy is the principle that “ * * * only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’ * * * are included in this guarantee of personal privacy. * * * Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), at 93 S.Ct., l.c. 726[9], Such personal rights to privacy, it was emphasized in Roe, entail a “compelling state interest” such as the marriage relation, procreation, contraception, family relationships and child rearing and education, to name a few.

The defendant cites and relies upon a relatively small number of decisions from other states (some of which were later overruled in those states), none of which are persuasive here, which extend the right to privacy as to sex activities to consenting adults. One such authority extends to “consensual sodomitical practices performed in private by adult persons of the opposite sex”. State v. Pilcher, 242 N.W.2d 348 (Sup.Iowa, 1976).

The elements giving rise to the right to privacy invoked by defendant are marriage, majority, privacy and consent. Marriage and adult status are completely lacking in this case. Privacy can be assumed from the record. Consent, even if such were present or could be found from this record, would be of no aid to defendant. F— E— H-, at the time was 13 years of age, and a person of such tender age is legally deemed incapable of consent to sodomy. State v. Rutledge, 267 S.W.2d 625, 626[3, 4] (Mo.1954); State v. Shumate, 516 S.W.2d 297, 301[10] (Mo.App.1974); State v. Wilson, 361 Mo. 78, 233 S.W.2d 686, 689[10] (1950); and State v. Villinger, 237 S.W.2d 132, 134[5] (Mo.1951).

Not by the most extreme stretch of logic or, indeed, of imagination, can the principles expressed in these authorities apply to the sordid facts before the Court in this case. Nor can it be said that any “fundamental” rights of the defendant “implicit in the concept of ordered liberty” are infringed upon by prosecution based upon such facts under Section 563.230 and the Missouri authorities defining its terms and application. The defendant’s conduct charged and proved fits squarely within this pattern and stands far removed from any constitutionally protected right to privacy.

Under the facts as shown by this record, the defendant is forced to the position which he thus summarizes: “In the instant case defendant contends that Section 563.230, Missouri Revised Statutes, is unconstitutional on its face and not as applied to defendant". (Emphasis supplied). He thus takes up the cause of all married persons and consenting adults as to private sexual activities. He has no standing to do so since it has been firmly established that a person in his position “cannot challenge the constitutionality of a statute unless he shows that he himself is injured by it”. Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953).

As stated in United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 46 L.Ed.2d 524 (1960), at 80 S.Ct., l.c. 522[3]:

“ * * * Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.”

See also: State v. Saunders, 75 N.J. 200, 381 A.2d 333, 336-337 (1977).

Missouri is squarely in line with these authorities. In State v. Crawford, 478 S.W.2d 314 (Mo.1972), a ease involving the same sodomy statute here under consideration, the court stated (l.c. 318-319[8]):

“ * * * Whether activities of a nature different from those charged against defendant might or might not constitute an offense under § 563.230 are questions the answers to which cannot aid appellant. Defendant ‘may not espouse the cause of others differently situated as a defense in a prosecution where the statute clearly applies to him’. State v. Weigold, 281 Minn. 73, 160 N.W.2d 577, 580.”

Under the facts in the case at bar, the defendant lacked standing to urge the points and arguments attacking the constitutionality of § 563.230 as invading the protected area of privacy of others under different social and factual situations covered in his Points II and III. The matter of waiver by failing to raise these points until this appeal, as presented in his Point I, thus becomes moot.

Defendant, as his Point IV on this appeal, charges that Count II of the Information is insufficient to confer jurisdiction upon the trial court in that it fails to sufficiently inform the defendant of the nature of the charge against him and to sufficiently set forth the essential factual elements of the alleged offense, all in derogation of his constitutional rights.

There is no dispute that the defendant has the constitutional right to be informed of the nature of the charge against him. Smith v. O’Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859, and that such charge must be sufficiently definite to constitute a bar to further prosecution for the same offense and thus prevent double jeopardy. State v. Tandy, 401 S.W.2d 409, 412[2] (Mo.1966). However, defendant is in error in his position that Count II of the Information in this case falls short of those constitutional standards. The statute under which this Information was brought, § 563.160 RSMo 1969, proscribes five specific acts, any one of which constitutes the ultimate crime encompassed in this statute of “annoying or molesting” a minor. The Information here is drawn to charge the second of such acts, namely, taking “indecent or improper liberties with such minor”. The pertinent part of this statute reads:

“Any person who in the presence of any minor, * * * shall take indecent or improper liberties with such minor; * * shall be considered as annoying or molesting said minor and shall upon conviction, * * * ” etc. (Emphasis supplied)

The Information in this ease, in pertinent part, states:

“Now comes Sam Módica, Assistant Prosecuting Attorney for the State of Missouri in and for the body of Jackson County, and upon his oath informs the court, that * * * (defendant) * * * on or about the 19th day of August, 1976, did then and there unlawfully, willfully, intentionally, feloniously * * * molest and annoy a minor child, to-wit (F_ E_ H_) of the age of thirteen years of age, by then and there taking improper and indecent liberties with said minor. * * * ” (Emphasis supplied)

It is apparent that the Information first charged the commission of the crime proscribed by the statute and then specifically set forth the second act enumerated in the statute. It has long been the rule that it is sufficient to frame the indictment or information in the language of the statute and that rule has been specifically applied to Section 563.160 here under consideration. State v. Tandy, 401 S.W.2d 409, 413[3] (Mo. 1966) and cases cited therein; State v. Sullivan, 454 S.W.2d 515, 517[1] (Mo.1970). In each of these cases the Informations commenced with a statement of the ultimate fact that defendants did unlawfully and feloniously annoy and molest a minor child, followed by “a specification that he did so by any one or more of the five kinds of acts or categories of acts therein proscribed, couched in the language of the statute”. The Informations in Tandy and Sullivan were held to be sufficiently definite to enable the defendants to prepare their defenses and to bar further prosecution for the same offense. Likewise, Count II of the Information here under review meets these standards and is sufficient. See also, State v. Sparling, 545 S.W.2d 430[1] (Mo.App. 1977).

As a corollary to Point IV, the defendant argues that the Court admitted evidence of sexual incidents between the defendant and the minor here involved which occurred pri- or to August 19, 1976, and thus further confused the record as to exactly which acts were charged in the Information. While not specifically asserting error in the admission of this evidence of prior incidents, the defendant argues that “the vast majority” of the testimony offered by the State “pertained to acts that occurred” prior to August 19,1976 and that “without the testimony” the “State’s evidence would have been wholly insufficient to support the verdict.” Whether defendant’s argument in this area is based upon the inadmissibility of such evidence or upon the claim that he was in fact being tried for prior crimes, is not clear. However, in either event, his position is without merit.

In the first place, he made no objection to the admission of this evidence and thus waived any claim as to its inadmissibility. State v. Henderson, 510 S.W.2d 813, 822[14] (Mo.App.1974); State v. Jines, 539 S.W.2d 801, 804[7] (Mo.App.1976); State v. Ross, 554 S.W.2d 522, 523[2] (Mo.App.1977); McCormick, Evidence, Sec. 52, p. 115 (1st Ed. 1954).

In the second place, the evidence of prior sexual incidents was admissible (even though they could be said to constitute pri- or crimes) as proper evidence to show the probability that the specific acts charged had been committed and to show the relationship of the parties involved. “They constitute the foundation of an antecedent probability or of a corroboration”. State v. Garner, 481 S.W.2d 239, 241[4] (Mo.1972).

Further, the defendant could not have been misled by the admission of this evidence nor deprived of the necessary notice as to the charges for which he was on trial. The Information is strictly confined to the acts committed on August 19, 1976, and the trial court, here also the trier of the facts, strictly confined its finding of guilt and sentence to those specific acts of August 19, 1976. Defendant’s Point IV is ruled against him.

The defendant’s Point V charges the trial court with error in failing to dismiss Count II of the Information, in that prosecution thereunder placed the defendant in double jeopardy, in violation of his constitutional rights. He asserts that he was tried twice at the same trial for “precise, exact acts”, i. e. sodomy under Count I, and annoying and molesting a minor under Count II.

This position is not supported by the record nor the law. The State’s evidence clearly established two separate and distinct offenses committed by the defendant on August 19, 1976. The first of these occurred in a third floor room at the motel, as heretofore related, and formed the basis for the charge of molestation under § 563.160, as contained in Count II. The second occurred later that evening in the linen room of the motel, as heretofore related, and formed the basis for the charge of sodomy under § 563.230, as contained in Count I. Thus two separate and distinct crimes occurring at different times and at different places were charged and supported by the evidence.

To support the defense of double jeopardy it must be shown that a person has been subjected to a prosecution for the same offense after a prior acquittal for that offense. State v. Cline, 477 S.W.2d 91, 94[3] (Mo.1972). The offenses proscribed by § 563.230 and § 563.160 are separate and distinct crimes. “ * * * The subject matter of the two statutes differ, as do the essential elements of the offense involved.” State v. Oswald, 306 S.W.2d 559, 562[6] (Mo.1957). While it is true that where one commits acts within these sections at the same time and place, the State is put to an election as to which will form the basis for a prosecution, State v. Oswald, supra; however, such person may be charged and tried under each statute where the offenses are committed at different times and places, as is the situation now before this Court. Defendant’s Point V is ruled against him.

The judgment and sentence is affirmed.

All concur.

      . § 563.230 under which defendant here was charged in Count I has been repealed and § 566.060, Laws 1977, S.B. No. 60, effective January 1, 1979, enacted in lieu thereof.

      . The present statute, Section 566.060, effective 1/1/79, makes any deviate sexual intercourse with another person who is less than 14 years old an act of sodomy.


author: DOWD, Presiding Judge.

text:
    In re the MARRIAGE OF Naomi R. FAULKNER, Petitioner-Appellant, and James W. Faulkner, Respondent.
    Nos. 39539, 39215.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 24, 1979.
    Motion for Rehearing or Transfer to Supreme Court Denied May 24, 1979.
    Application to Transfer Denied July 17, 1979.

      Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, Jack C. Stewart, Hills-boro, for petitioner-appellant.
    Geoffrey L. Pratte, Raymond R. Roberts, Roberts & Roberts, Farmington, for respondent.
   DOWD, Presiding Judge.

This is an appeal from a judgment rendered by the Circuit Court of St. Francois County in a dissolution of marriage case. The appellant, Naomi Faulkner, does not challenge the court’s finding that the marriage was irretrievably broken, but asserts that the court erred in its division of the parties’ marital property.

Naomi and James Faulkner were married for 27 years. No children were born of the marriage. Appellant testified that the couple had not engaged in sexual relations for approximately 10 years prior to the institution of this suit. She admitted, however, to having conducted a six year affair with a “gentleman friend”, as well as to having had a brief interlude with another man years before. Respondent testified that his wife drank to excess and stayed out late at night. She would publicly berate him for not imbibing in alcoholic beverages despite his diabetic and ulcerous condition. Upon the parties’ separation in August, 1975, the marital property was divided as follows:

Appellant
½ Proceeds from Sale of Home $19,600.00
Household Goods 4,850.00
Buick Automobile 2,495,00
$26,945.00
Respondent
½ Proceeds from Sale of Home , $19,600.00
Household Goods 2,102.00
Chevrolet Automobile 1,248.00
$22,950.00
The trial court disposed of the remainder of the marital property as follows:
Appellant
Her life insurance 51.07
Missouri Natural Gas Stock 800.00
Ozark Investment Club Shares 1,079.93
Severance Pay and Retirement Fund 13,000.00
⅛ U.S. Savings Bonds 6.152.67
$21,083.67
Prior Settlement 26.945.00
Total Shares $48,028.67
Respondent
His life insurance 2,813.02
Profit Sharing Plan (present value) 20,000.00
⅜ U.S. Savings Bonds 12.305.33
$35,118.35
Prior Settlement 22,950.00
Total Shares $58,950.00

Appellant contends that the trial court erred in 9 respects in dividing the marital property. She does not challenge the property division agreed to upon separation or the trial court’s disposition of the life insurance policies. The contentions of error are as follows: 1) the attributing to her of salary which she would have received at the Savings and Loan had she not resigned; 2) the attributing to her of the shares of Missouri Natural Gas Stock and Ozark Investment Club; 3) the setting apart to her the $13,000.00 from her severance pay and retirement fund; 4) the finding that the present value of respondent’s profit sharing plan was $20,000.00; 5) the failure to find that respondent’s retirement plan was of substantial value; 6) the considering of maintenance pendente lite paid to appellant in finding the parties’ income to be substantially equal; 7) the considering of future income based on the expected retirement ages of the parties; 8) the overvaluing of assets awarded to appellant and failure to award her a fair share of the U.S. Savings Bonds; and 9) the failure to award appellant adequate attorney’s fees.

As this was a court tried case, our review is governed by the framework set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. Banc 1976). Accordingly the judgment will be affirmed unless it is not supported by substantial evidence, or is against the weight of the evidence or is an erroneous declaration or application of the law.

In her first point, appellant contends that the trial court erred in denying her maintenance and in imputing to her income which could be produced through her best efforts and ability. This latter complaint stems from the court’s finding that had appellant not resigned from her position with Ozark Federal Savings and Loan in October 1973, her salary at the time of trial would have been $11,731.23.

A court may impute income to a spouse when the spouse’s reduced income reasonably could be understood to be a voluntary declination to earn. Foster v. Fos ter, 537 S.W.2d 833 (Mo.App.1976). In a similar vein, a request for maintenance may be denied if the spouse is able to support herself in a course of employment which corresponds with her skills or interests. Brueggemann v. Brueggemann, 551 S.W.2d 853 (Mo.App.1977).

The record reveals that appellant’s employment with Ozark Federal Savings and Loan was terminated after she was assaulted in the bank’s parking lot by the wife of her extra marital lover. At trial appellant could not recall whether her resignation was voluntary or not. Appellant is currently employed as a realtor, and is compensated on a commission basis.

Following an inquiry into the parties’ economic circumstances, the court determined that the income ascribable to each party was substantially equal. Any pre-existing differential in income was deemed to have been offset by respondent’s payment of $3,400 to appellant pursuant to the latter’s motion pendente lite. The court further found that the appellant, being eight years younger than the respondent, could look forward to earnings for sixteen years prior to her retirement. The respondent, on the other hand, could look forward to earnings for eight years until normal retirement. Aside from having been found to possess a more extended earning potential than the respondent, the appellant was also determined to be in better health than was her husband.

The trial court did not err in denying appellant’s request for maintenance or in imputing income to her. In addition to considering the parties’ economic situation, the court found that appellant’s adulterous relationships and excessive drinking were factors to be taken into account in dividing the marital property. § 452.330 RSMo 1973. The court’s findings in these challenged respects were neither unsupported by the evidence nor an abuse of discretion. Appellant’s point one is without merit.

In her second and third points relied on, appellant challenges the court’s division of marital property because assets which were nonexistent at the time of trial were attributed to her share. The assets referred to in point two were the Missouri Natural Gas Stock and Ozark Investment Club Shares, and those referred to in point three were her severance pay and retirement benefits.

During the course of the marriage, the parties acquired 10 shares of Missouri Natural Gas Stock worth $800. Respondent testified to having endorsed and given the stock certificates to appellant in late 1974 or early 1975. He also testified that he never received any of the proceeds from the sale of this stock. While married, the parties also acquired shares in the Ozark Investment Club. The record reveals that a check for $1,079.93 payable to the respondent was cashed on May 3,1975. The check bore respondent’s signature although he denies ever having endorsed the check, or ever having received the proceeds from the cashing of same. The court found that these two assets had been set aside or appropriated by the appellant.

The court also found that a bank deposit in the amount of $13,000, representing appellant’s severance and retirement benefits, was includable in the latter’s share of marital property. Appellant contends, however, that the proceeds from the sale of the stock and of the bank account were exhausted at the time of trial. The record indicates that appellant attributes the dissipation of the $14,879.93 to her purchase of snow tires, household goods, income tax payments, real estate broker tuition and a loan of $2,000 to a friend. Appellant did not introduce any evidence substantiating the cost of the items purchased. The record also discloses that appellant did not inform respondent of the existence of the bank account until after the couple were separated. Consequently, respondent never had access to the account.

In order to achieve a just division of marital property, the trial court is empowered to balance the “financial equities” existing between the parties. McCully v. McCully, 550 S.W.2d 911 (Mo.App.1977). The trial court’s finding that appellant appropriated these three funds and set them aside unto herself was supported by the evidence and not an abuse of discretion. The inclusion of the depleted assets in the division of marital property apparently stemmed from the court’s reluctance to deny respondent the benefit of the assets dissipated by appellant. See, Daniels v. Daniels, 557 S.W.2d 702 (Mo.App.1977). Points two and three are ruled against the appellant.

In her fourth point relied on, appellant contends that the trial court erred in finding that respondent’s profit sharing plan had a present value of $20,000 because the court considered both tax liability and the current inflationary trend in computing its value. Appellant contends the court erred further in finding that the assets of the plan would not be available to respondent until 1984.

In its extensive findings of fact and conclusions of law, the trial court stated that according to the trust agreement, the profit sharing plan was a marital asset set apart for respondent. The court found that although the plan had a present value of $34,282.82 to the trustee, it had a present value of $20,000 to respondent. The court employed two approaches in arriving at this conclusion.

First, the court found from the testimony adduced at trial, that if immediate distribution were to be made before respondent’s retirement, he would be exposed to a federal tax liability of approximately $13,600. This latter figure, when coupled with the state tax liability would reduce the “net distributable asset” to no more than $20,-000. The court also found that the funds would not be available to respondent until 1984, as expressed in the trust. The court determined that the inflationary trend must be considered in computing the value of the asset in future dollars. This calculation revealed that the present value of the asset did not exceed $20,000.

A court is entitled to take cognizance of current inflationary trends and tax liability in dividing marital property. In fact, the failure to take such factors into account in this regard has been held to be unfair. Klinge v. Klinge, 554 S.W.2d 474 (Mo.App.1977) (inflation); Butcher v. Butcher, 544 S.W.2d 249 (Mo.App.1976) (tax). Point four is ruled against the appellant.

In her fifth point, appellant contends that the trial court erred in finding that respondent’s retirement plan was not a present marital asset. The Supreme Court of Missouri has recently declined to review whether a spouse’s “vested” interest in a retirement plan is to be considered marital property. In re Marriage of Brethauer, 566 S.W.2d 462 (Mo. en banc 1978). It'has been settled, however, that a retirement plan to which a spouse has contributed during the marriage and in which the spouse’s interest is either contingent or subject to divestment, is not marital property. Daffin v. Daffin, 567 S.W.2d 672 (Mo.App.1978). Retirement benefits which become vested upon actual retirement have been declared “too speculative” to be considered marital property for alimony purposes. Robbins v. Robbins, 463 S.W.2d 876 (Mo.1971).

Mr. Weigel, of the Comptroller’s office of respondent’s employer, St. Joe Mineral Corporation, testified to the nature of the latter’s retirement plan. He stated that the normal retirement age under the plan was 65 years old. If respondent were single and died before retirement age, his estate would not receive any benefit from the plan. Upon retiring at age 65, respondent would be entitled to retirement benefits for as long as he lived. If respondent were to die one month after retiring, his estate would receive one month’s worth of retirement benefits. Following the reasoning announced in Robbins, supra, it is our opinion that the retirement plan to which respondent contributed is not marital property because the scheme of disposition of benefits is too speculative and not conducive to computation. Point five is ruled against the appellant.

In her sixth point, appellant alleges that the trial court erred in finding that the incomes of the parties were substantially equal because the court allegedly included maintenance pendente lite which would terminate upon dissolution of the marriage, in its computation of appellant’s income. As articulated in our discussion of point one, the court attributed appellant’s salary to be $11,700.00 and respondent’s salary to be approximately $13,600. The disparity was deemed by the court to be offset by respondent’s payment of $1,000 of appellant’s attorneys fees as well as approximately $2,400 in maintenance pendente lite. Appellant’s earning capacity was determined to be equal to that of the respondent. The court also concluded that respondent’s living expenses exceeded appellant’s in view of the former’s health condition and commuting costs. The court’s finding is supported by substantial evidence of the economic circumstances of the parties. Point six is ruled against the appellant.

In her seventh point appellant asserts that the trial court erred in its division of the marital property insofar as its alleged speculation as to appellant’s future income and retirement age was not permissible under § 452.330 RSMo 1973.

It must be noted however, that the factors listed in § 452.330 supra are not exclusive of other considerations necessary to the just division of marital property. Arp v. Arp, 572 S.W.2d 232 (Mo.App.1978). Age is an integral part of a court’s consideration of the economic circumstances of the parties. Conrad v. Bowers, 533 S.W.2d 614 (Mo.App.1975). Point seven is ruled against the appellant.

In her eighth point appellant alleges that the trial court overvalued the assets it set aside to her and erred in its allocation of the U.S. Savings Bonds. The court awarded ⅜ of the bonds to respondent and ⅛ to appellant. The latter contends that she contributed equally to the acquisition of the bonds.

Appellant’s point does not specify the particular items alleged to have been overvalued by the trial court. We have heretofore addressed the propriety of the court’s action in regard to the imputation of appellant’s income, the Missouri Natural Gas and Ozark Investment Club Shares, the bank deposit at St. Louis Federal Savings and Loan, respondent’s profit sharing plan, and respondent’s retirement plan and have found no trial court error.

Similarly we find no error in the court’s division of the U.S. Savings Bonds. The court reviewed the conduct and economic circumstances of the parties before allocating the assets. The court expressly found that appellant’s “adulterous relationship has been principally responsible for the breaking of the marriage and that it should be taken into account in the division of the property between the parties.” (See, Conrad v. Bowers, supra). Furthermore, it should be noted that the division of property is required to be just and equitable rather than equal. Smith v. Smith, 552 S.W.2d 321 (Mo.App.1977). Point eight is ruled against the appellant.

In her final point, appellant alleges the trial court erred in failing to order respondent to pay the former’s attorneys fees. Respondent was ordered by the trial court to pay appellant a total of $2,000 in attorneys fees: $1,000 for fees incurred by appellant during the pendency of the dissolution suit, and $1,000 as per the court’s final order.

If the court determines that one party is more capable of bearing the expense of the other party’s attorneys fees, it may in its discretion enter an order directing the payment of same. D.E.W. v. M. W., 552 S.W.2d 280 (Mo.App.1977), § 452.355 RSMo 1973. In this case however, the trial court specifically found the incomes of both parties to be “substantially equal”. We cannot say that the court’s refusal to order respondent to pay all of appellant’s attorneys fees amounted to an abuse of discretion. Point nine is ruled against the appellant.

Judgment affirmed.

CRIST, J., and ALDEN A. STOCKARD, Special Judge, concurs.

      . At this juncture it must be noted that the trial court, in its findings of fact and conclusions of law, noted that appellant forfeited $3,946.21 in pension benefits when her employment with Ozark Federal Savings and Loan was terminated. The transcript reveals, however, that the amount forfeited was $2,302.46.