text:
    CRACKERNECK COUNTRY CLUB, INC., et al., Appellants, v. CITY OF INDEPENDENCE et al., Respondents.
    No. KCD 26428.
    Missouri Court of Appeals, Kansas City District.
    April 1, 1974.
    Motion for Rehearing and/or Transfer Denied May 6, 1974.
    C. John Forge, Jr., Independence, for appellants.
    James S. Cottingham, City Counselor, Richard G. Carlisle, Asst. City Counselor, Independence, for respondents.
    Before DIXON, C. J., and SHANGLER and WASSERSTROM, JJ.
   SHANGLER, Judge.

The appellants are duly licensed by the State of Missouri and the City of Independence to operate restaurant-bars and to dispense liquor by the drink from Monday through Saturday. In 1971, the General Assembly enacted Senate Bill No. 148 [§ 311.097, RSMo 1969, V.A.M.S., as amended] which authorized the supervisor of liquor control to license restaurant-bars to sell liquor by the drink at retail for consumption on the premises between the hours of 1:00 p. m. and midnight on Sundays. The appellants Rockwood Country Club and Crackerneck Country Club have been licensed by the State of Missouri to sell liquor by the drink on Sundays. The other appellants have not been so licensed but have submitted applications for such eligibility.

Prior to the enactment of § 311.097, the City of Independence, a constitutional charter city, had adopted ordinances which provided for the sale of intoxicating liquor by its licensees from Monday through Saturday. After the enactment of § 311.097, the City Council of Independence rejected revisions which would have permitted sale of liquor by the drink on Sundays by restaurant-bars. The Council did thereafter amend these regulatory ordinances, however, to provide for restaurant-bar licensees, a classification not made previously by ordinance, to sell liquor by the drink [presumably to foreclose city licensees falling within the statutory classification from claiming the benefit of § 311.097 is self-enforcing] but did not provide for Sunday sales by such licensees.

The appellants brought their action seeking a declaration that the city ordinance, Chapter 2, Article 1, § 2.180 of the Code of the City of Independence, which prohibits the sale of liquor by the drink on Sundays, be declared void and unenforceable as in conflict with the provisions of § 311.097, and for an injunction to restrain the City of Independence from enforcing the ordinance. A restraining order issued prohibiting the City of Independence from interfering with the sale by appellants of liquor by the drink on Sundays between the hours granted in their state licenses and by § 311.097. Thereafter, the court determined the merits, dissolved the restraining order, and declared that the questioned ordinance was not in conflict with § 311.097, but was valid and enforceable. The appeal is from that judgment.

There is no doubt that a city may regulate and control the sale of intoxicating liquor. That power is specifically granted by § 311.220[2] of the Liquor Control Law, but to be valid, the regulatory municipal ordinance must be in harmony with the statutory law upon the same subject. § 311.220[2]; State ex rel. Hewlett et al. v. Womach, 355 Mo. 486, 196 S.W.2d 809, 812[1] (Banc 1946); Fischbach Brewing Company v. City of St. Louis, 231 Mo.App. 793, 95 S.W.2d 335, 338[2] (1936). The question, then, is whether Chapter 2, Article 1, § 2.180 of the Code of the City of Independence, which prohibits the sale of intoxicating liquor by the drink on Sundays by any city licensee, is in conflict with § 311.220[2] which permits such dispensation on Sundays between the hours of 1:00 p. m. and midnight by a state restaurant-bar licensee.

As a general rule, an ordinance which supplements a state law and enlarges upon the requirements of the statute creates no conflict unless the statute limits the requirement for all cases to its own prescriptions. Vest v. Kansas City, 355 Mo. 1, 194 S.W.2d 38, 39[2-4] (1946). An ordinance and a statute are in conflict when their express or implied provisions are so inconsistent and irreconcilable that the statute annuls the ordinance. City of St. Louis v. Klausmeier, 213 Mo. 119, 112 S.W. 516, 518—519[3] (Banc 1908). And although an ordinance may enlarge upon the provisions of a statute by requiring more than the statute requires, it may not prohibit what the statute permits or permit what the statute prohibits. State v. Womach, supra, 196 S.W.2d l.c. 815; Nickols v. North Kansas City, 358 Mo. 402, 214 S.W.2d 710, 712[1] (1948).

Thus, the added requirement of an ordinance that registered barbers be examined every six months was held not to be inconsistent with the statute which required such examination only once a year. Vest v. Kansas City, supra. And an ordinance which prohibited the sale of alcoholic beverages during hours permitted by statute was found not to be inconsistent with the statute. City of Maryville v. Wood, 358 Mo. 584, 216 S.W.2d 75 (1948). Ordinances which limited the number of liquor by the drink licenses issued within the city [State ex rel. Kopper Kettle Restaurants, Inc. v City of St. Robert, 424 S.W.2d 73 (Mo.App.1968)] and which restricted the sale of package liquor to certain types of businesses [State ex rel. Kemerling v. Peterson, 240 Mo.App. 700, 214 S.W.2d 739 (1948)], although the Liquor Control Law imposed no such restrictions upon its licensees, were held to be valid and not out of harmony with the statute. On the other hand, a city liquor ordinance which is inconsistent with the provisions of the Liquor Control Law as to the same subject matter may not stand. Thus, an ordinance which undertakes to exact a license fee from liquor manufacturers located outside the city enacting the ordinance is in conflict with the statute which authorized the imposition of such fees only from liquor manufacturers within the city’s limits. Fischbach Brewing Co. v. City of St. Louis, supra. See, also, City of St. Louis v. Klausmeier, supra.

On these principles and precedents, we conclude that, to the extent § 2.180 of the Code of the City of Independence undertakes to forbid the sale of liquor by the drink on Sunday by state restaurant-bar licensees, it imposes a new and different standard from the prescription of § 311.097 of the Liquor Control Law, is prohibitory rather than regulatory, and for that reason, invalid. We come to this conclusion because the grant by the state supervisor of liquor control of restaurant-bar licenses to appellants under § 311.097 confers a privilege distinct and different in qualification and subject-matter from other licenses conferable under the Liquor Control Law. And it is no answer [as — relying on City of Maryville v. Wood and Nickols v. City of North Kansas City, supra,—respondent City would assert] that § 2.180 merely prohibits appellants from Sunday sales of liquor by the drink but does not otherwise affect their exercise of week-day and Saturday [until 1:30 a. m. on Sunday] sales under their separate state license, and is thus an additional regulation which only enlarges upon the provisions of § 311.097 and therefore valid under the principles of Vest v. Kansas City and State ex rel. Hewlett v. Womach, supra.

This argument is untenable and the authorities cited inappropriate for these reasons: Appellants hold state licensure for sale of liquor by the drink at retail for consumption on the premises under two separate provisions of the Liquor Control Law, § 311.200[4] and § 311.097. The qualifications and benefits under each licensing statute, however, are different. The license granted under § 311.200 [4] requires only that the licensee, having paid the requisite fee and otherwise qualified according to law, dispense liquor by the drink at retail for consumption on premises approved by the supervisor of liquor control [§ 311.090], confined to the hours prescribed by § 311.290. The license granted under § 311.097, on the other hand, is for sale of liquor by the drink at retail, only on Sunday between the hours of 1:00 p. m. and midnight, for consumption on the premises of a restaurant-bar and requires that the licensee, having paid the requisite fee and otherwise qualified according to law, also qualify as “[an] establishment having a restaurant or similar facility on the premises at least fifty percent of the gross income of which is derived from the sale of prepared meals or food consumed on such premises.” It is clearly evident that a license under § 311.097 is not merely an extension of a license which has issued under § 311.200[4], These sections, although parts of the same comprehensive scheme of liquor control [John Bardenheier Wine & Liquor Co. v. City of St. Louis, 345 Mo. 637, 135 S.W.2d 345, 346 (Banc 1939)] were enacted at different times and are disparate as to specific subject-matter. See, State v. Wipke, 345 Mo. 283, 133 S.W.2d 354, 356[2] (Banc 1939). A licensee under § 311.200[4] may not lawfully sell liquor by the drink on Sunday between the hours of 1:00 p. m. and midnight, and a licensee under § 311.-097 may not sell liquor by the drink on week days and Saturdays. Thus, an ordinance which prohibits a restaurant-bar licensee under § 311.097 from the Sunday sale of liquor by the drink, impairs the privilege accorded by that statute, nullifies the grant of a state license under the law by the supervisor of liquor control, and is invalid. State ex rel. Collins v. Keirnan, 240 Mo.App. 403, 207 S.W.2d 49, 54[10] (1947); State ex rel. Kopper Kettle Restaurants, Inc. v. City of St. Robert, supra, 424 S.W.2d l.c. 80[16].

The salient authorities urged by the respondent City in support of the contention that § 2.180 is merely regulatory of § 311.097, and therefore valid, relate to ordinance enactments different in purpose and effect from the one we consider. In Nickols v. North Kansas City, supra, the Supreme Court of Missouri held that a city ordinance which made unlawful the sale of 3.2% beer on Sunday was regulatory of, and not in conflict with, a state licensing statute which authorized such sale on every day, except between the hours of 1:30 a. m. and 6:00 a. m. The distinction between the effect of that ordinance and of § 2.180, however, is that while the former, by forbidding Sunday sales, merely required more than the statute required but otherwise left the exercise of the state license reasonably intact, and therefore was validly regulatory, § 2.180 would operate to nullify the state license altogether, and therefore is invalidly prohibitory. This rationale is made explicit in the Nickols case, 214 S.W.2d l.c. 712:

We agree with appellants that as the sale of 3.2% beer has been legalized by statute, a city ... is powerless to prohibit such sale by ordinance, but we do not agree that a city is powerless to reasonably regulate such sale.
The fact that the city is powerless to completely prohibit the sale of nonintoxicating beer does not necessarily mean that it may not partially prohibit such sale by confining the same to week days. (Emphasis supplied)

To the same effect is City of Flat River v. Mackley, 212 S.W.2d 462 (Mo.App.1948).

The other decision upon which respondent City places primary reliance for its assertion that § 2.180 is a valid regulation harmonious with § 311.097, City of Maryville v. Wood, supra, no more supports that proposition than does Nickols. In Maryville, an ordinance which prohibited the sale of intoxicants after 10:00 p. m. on week days was held not to be inconsistent with the statute which permitted such sales until 1:30 a. m. on week days. The court observed, first, [216 S.W.2d l.c. 77]

In the case at bar, the respondent city has not undertaken to prohibit the sale of intoxicating liquors within its corporate limits but only to regulate its sale by requiring a closing time of 10:00 P. M.

and then reaffirmed its holding in Nickols

The fact that the city is powerless to completely prohibit the sale of nonintoxicating beer does not necessarily mean that it may not partially prohibit such sale by confining the same to week days. (Emphasis supplied.)

The effect of § 2.180, however, is not a reasonable delimination of the hours between 1:00 p. m. and midnight on Sunday during which restaurant-bar licensees may sell liquor by the drink on Sunday, under § 311.097, but a denial altogether of the benefit of the state license issued under that statute.

We conclude that, as it applies to restaurant-bar licensees, Chapter 2, Article 1, § 2.180 of the Code of the City of Independence is inconsistent with the provisions of § 311.097, and therefore invalid. The judgment is reversed and the cause remanded with directions that the trial court enter a declaration in accordance with the determination of this opinion.

All concur.


source: Caselaw Access Project

author: PRITCHARD, Chief Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Elmer Henry BRUNS, Appellant.
    No. KCD 26987.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.
    Len L Balke, Kansas City, for appellant.
    Robert S. Drake, Jr., Pros. Atty., Benton County, Warsaw, for respondent.
    Before SOMERVILLE, P. J., PRIT-CHARD, C. J., and TURNAGE, J.
   PRITCHARD, Chief Judge.

In this jury-waived trial, the court found appellant guilty of driving a motor vehicle while intoxicated, in violation of § 564.440, RSMo 1969, V.A.M.S., and his punishment was set at a $100.00 fine.

Respondent says that appellant did not present his present points to the trial court in his motion for new trial. No motion for new trial is necessary in a court-tried case for the purpose of appellate review under Rule 73.01, subd. 2(b), V.A.M.R.,—the provisions of which are applicable to criminal cases under Rule 28.18. The major inquiry is whether the evidence adduced by the state, and considered in its most favorable light, is sufficient to sustain the conviction.

On July 15, 1972, Leo Casey was a deputy sheriff of Benton County and a deputy marshal of Cole Camp, Missouri, and was on duty. At about 8:30 in the evening Casey saw appellant at an intersection of Highway 52 and a street in Cole Camp where there was a four-way stop sign. It is not at all clear, but it is inferable (but not material to the charge) that appellant had been involved in a collision. Appellant was then seated under the wheel in his car pretty well at the corner and Casey asked him, “to wait, just to stop, wait right there until I could get my car out of the middle of the street.” As Casey started to pull out of the road, appellant drove off, going to the stop sign at which he turned right on Highway 52. Casey was asked on direct examination whether he observed anything unusual about appellant. He responded, “A. Well, I would say, yes, that he wasn’t exactly sitting straight under the wheel. And at that point, I would say that he was not — should not have been driving, —.” Upon objection that there had been no foundation laid for that opinion, the conclusion was stricken by the court. But shortly later Casey was asked, “Q. Over the course of the years, both before and since you become a law enforcement officer, have you had an opportunity to observe men that were in various states of intoxication? A. Yes, I have. I drove a truck over the road, and — yes, I have. Q. And based on your experience and observations, do you have a judgment as to whether or not Mr. Bruns was intoxicated at the time you saw him there in Cole Camp that evening? A. Yes, sir, I would say that he was.”

There was no objection made to the latter conclusion, and of course there did not exist sufficient facts as to the observation by Casey of appellant at the time which would, over objection, permit him to give the conclusion. See State v. Robbins, 455 S.W.2d 24, 26 (Mo.App.1970), “But be all that as it may, it is not error to permit a witness, who relates the facts upon which he bases his opinion * * * to express an opinion that the defendant was intoxicated. (Citing cases and authority.)” (Italics added.) Under the rule of this state, although Casey’s conclusion was in evidence because it was not objected to, the conclusion, without any factual basis to support it, is without any probative value of appellant’s intoxication at the time he was first seen driving his car by Casey. See Hannah v. Hannah, 461 S.W.2d 852, 856 (Mo.1971), for a discussion of the rule. The further inquiry must be, then, whether the proof of subsequent events was sufficient to sustain the court’s finding that appellant was intoxicated while driving his car. These are the elements which must be established to sustain a conviction under § 564.440. State v. Fisher, infra.

After appellant drove off, Casey called Deputy Sheriff A1 Doty, from the City Hall right across the street. The time was 8:30 p. m., give or take a few minutes. Doty drove from his home, which was a half mile south of the city limits of Cole Camp, into Cole Camp to talk to Casey. Doty felt from the description that it was appellant’s vehicle which was involved, and knowing where he lived, Doty headed in that direction. He followed a trail of water from the intersection of Highway 52 and Pine Street (the four-way stop sign) out to appellant’s residence, a distance of between 5 and 6 miles. The trail of water led up to appellant’s car which was sitting from 60 to 70 feet inside the entrance to the driveway. Doty arrived “Maybe five minutes until 9:00 o’clock.” Appellant was seated under the wheel attempting to start the vehicle but the motor was so overheated that it would not start, and steam was boiling out of it. Doty asked appellant what had happened, but could get nothing out of him. “Q. Did you notice anything unusual about his appearance? A. Well, he appeared, to me, to be in an intoxicated condition. That is why that I brought him down here, and called Trooper Frier to administer a BA Test. Q. What led you to that conclusion ? A. I had probable cause to believe that. Q. I mean, just what about his appearance, or what led you to believe that, what facts? A. His speech was slurred, and when he finally did get out of the car, he was very unsteady on his feet. I helped him back to my vehicle. His shirt-tail was out, at the time. His face was very flushed, and I could smell something on his breath, and which I determined to be an alcoholic beverage of some sort.” These facts, together with Doty’s experience in observing men in various stages of intoxication over the years, were the bases of his conclusion that appellant was intoxicated at the time he saw him. Under Robbins, supra, and cases cited, the testimony was admissible and had probative value on the issue. See also Kansas City v. Douglas, 483 S.W.2d 760, 761 (Mo.App.1972); and State v. Fisher, 504 S.W.2d 281 (Mo.App.1973).

Considering the evidence in its light most favorable to the state, it is apparent that the two elements of the offense were established — appellant was driving, and while doing so he was intoxicated. The evidence shows that appellant was seen driving away in his car in Cole Camp by Officer Casey at about 8:30 p. m. Upon being called, Officer Doty went toward appellant’s residence, some 5 to 6 miles away, following a trail of water on the road, and arrived there about 25 minutes later. The trail of water led from the road up to where it was sitting in appellant’s driveway, its radiator boiling, and with appellant sitting under the wheel trying to start the car. Appellant was then intoxicated, as the court could find from Doty’s testimony. All the facts and circumstances, closely connected in point of time, support the inference and ultimate conclusion that appellant had been, immediately before driving his car on the public roads in an intoxicated condition. See and compare State v. Milligan, 516 S.W.2d 795, 799 (Mo.App.1974). These facts differentiate State v. Dodson, 496 S.W.2d 272 (Mo.App.1973), where there was no proof that defendant was intoxicated at the time he was driving his automobile which was approximately one hour prior to the time defendant was arrested at his home. There was no evidence in Dodson that defendant had been driving his vehicle immediately prior to his arrest, nor any circumstances permitting a legitimate inference that he had been doing so, as is the case here. Cases such as Blevins v. State, 38 Ala.App. 584, 90 So.2d 98 (Ala.App.1956), where some time after defendant was first seen driving he was “drunk”, (held, insufficient to support the conviction because it was some time after the alleged offense had been committed) are, on the facts, likewise distinguishable. Cases such as those cited in Dodson, particularly State v. Liechti, 209 Iowa 1119, 229 N.W. 743 (1930), condemning a backward travelling presumption, are also inapplicable, because there is no need, under the proven facts and circumstances permitting an inference of driving in the present while intoxicated, to apply any retroactive presumption.

Appellant claims that his arrest was made in violation of § 564.443, because not made within one and one-half hours after the alleged offense. As noted, Doty’s arrest was made about 9:00 p. m., according to his testimony. That arrest, under the evidence above set forth, was made immediately by Doty on his probable cause to believe that appellant was intoxicated and immediately prior to that observed condition, he had driven his car. The contention is without merit.

The Missouri Uniform Traffic Ticket issued in this charges appellant with commission of the offense “On or about 7-15-72, at or near ‘in Cole Camp on M-52’ at TO :00 P.M.’ ” Appellant says there was no evidence that he was driving intoxicated at 10:00 p. m., and that this is another reason that the court should have acquitted him. The officer who administered a breathalyzer test to appellant testified that 10:00 p. m. had reference to the time of the test. Rule 37.28 controls in its words, “No information or complaint shall be deemed invalid [by reason of], * * * fourth, for omitting to state the time at which the offense was committed, in any case where time is not of the essence of the offense; or, fifth, for stating the time imperfectly, * * *.” See also Rule 24.-11. Here, it is sufficient that the evidence showed the commission of the offense on the day charged. The hour of that day is not of the essence of the offense under the facts here which show the hour of 10:00 p. m. on the traffic ticket to be a clerical error. Compare State v. Crawford, 99 Mo. 74, 12 S.W. 354 (1889); the line of cases involving liquor violations such as State v. Randolph, 139 Mo.App. 314, 123 S.W. 61 (1909), construing the statute which preceded Rule 24.11; 41 Am.Jur.2d Indictments and Informations, § 118, p. 955, et seq.; and 42 C.J.S. Indictments and Informations § 124, p. 1005, et seq. The exact hour of the offense being immaterial in this case, there is no fatal variance between the charge and the proof, and the point is overruled.

Appellant complains of the testimony as to the administration of a breathalyzer test to him as relating to volume rather than by weight. An objection to this testimony was sustained and it was ordered stricken by the court. The court must be deemed not to have considered that stricken testimony. The evidence is otherwise sufficient to sustain the conviction, and it is unnecessary to consider appellant’s testimony, offered to counter evidence of his driving while intoxicated, that he had consumed “too much” alcohol after he had arrived at his residence on the day in question.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Bruce Lee BAZELLA, Appellant.
    No. KCD 26900.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.
    Willard B. Bunch, Public Defender, Sixteenth Judicial Circuit, Gerald M. Handley, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Before SOMERVILLE, P. J., PRIT-CHARD, C. J., and TURNAGE, J.
   PRITCHARD, Chief Judge.

Appellant was tried to the court, a jury being waived, for the commission of the crime of possession of a restricted drug, pentobarbital. Upon a finding of guilt, appellant was sentenced to six months imprisonment in the Jackson County jail, with credit being given for 33 days as time previously served in jail.

The first issue is whether the court erred in failing to sustain appellant's motion to suppress the evidence seized by the arresting officer. The claim of error is argued that Officer DeMent, who seized-the evidence, and another officer, were unlawfully (as trespassers) in the Berkley Hotel, on the second floor thereof, without warrant for arrest or search, and without specific request from the hotel management that they be present at the hotel on the evening in question.

The testimony of the pre-trial motion to suppress the seized evidence was stipulated to be considered by the court at trial. Appellant, on January 27, 1973, was visiting friends in Apartment 207 in the Berkley Hotel at 315 West 38th Street, Kansas City, Missouri. After he had been there about six hours he was arrested in the hallway on the second floor. On the same date, at night, Officer DeMent with his partner, Jerry Johnson, were on patrol duty as a part of the tactical unit, and entered the Berkley Hotel for the purpose of a residence check. The Berkley was a transient hotel, with three or more floors. DeMent had no warrant to search the hotel, or to arrest appellant. DeMent had been to the hotel before on narcotics incidents, the night manager having upon occasion asked him to check by every once in awhile “due to problems with what he stated were ‘pot parties’ that occur quite frequently in the hotel, and he asked that any time I was in the neighborhood to stop by and see if everything was okay.” DeMent and his partner entered the building and walked up the stairway. As DeMent was turning a corner on the 2nd floor appellant yelled out “ ‘It’s the cops,’ ” and started running down the hall. DeMent “chased him down the hall and around a corner and he was putting a vial with some kind of a substance in it on top of an air conditioning unit, and — .” DeMent pulled appellant’s hand back and reached up to grab the vial, and as he pulled the vial back down there was a syringe lying next to it which fell off and stuck in DeMent’s hand. At that time, in the hallway, appellant was placed under arrest for possession of narcotics.

On further direct examination, DeMent acknowledged that on January 27, 1973, the hotel manager did not ask him to go there, and he went there infrequently — once a month or four or five times a month. He talked with employees at the desk on various occasions.

Vicki Walberg, appellant’s friend whom he was visiting at the Berkley, testified at trial that as one enters the hotel there is a desk. The front door of the hotel was not locked, and “A Well, they have a ‘no trespassing’ sign on the stairway and you are supposed to check in at the desk before you do go up.” -

Mr. Steele, the manager of Berkley, testified at trial that he had never given permission to any police officer to enter the hotel and proceed to go through it for the purpose of checking for any particular narcotics, nor did his wife or any hotel clerk. It was possible that persons who worked various night shifts could have had contact with the police and discussions with them. DeMent could not remember the person who asked him, on previous occasions, to check the hotel, but Mr. Steele did not do so. It was developed on rebuttal testimony of DeMent: “A As I stated earlier, I had been in the Berkley Hotel on several occasions, and I had talked to the fellow I described earlier on several occasions, and he stated to me that he was glad that I came around every once in a while due to the problems that they had in the hotel. I was given no permission, as such, to come to the building, or asked or requested.”

Appellant in his urging that the officers here were unlawfully on the premises and thus were trespassers first relies upon McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948). There, McDonald had been under police observation for several months prior to the arrest. He had rented a room in a residence. Without an arrest warrant or a search warrant, the officers surrounded the house, and one of them thought he heard an adding machine. Believing that a numbers game was in process, the officers sought admission to the house. One of them opened a window in the landlady’s room and climbed through. After the ground floor of the house was searched, one officer stood on a chair on the second floor hallway and looked into the transom into petitioners’ room, and saw both petitioners, numerous slips, money piled on a table, and adding machines. It was held that the felonious character of the initial entry into the house made the arrest and seizure invalid, and the court said [concurring opinion of Mr. Justice Jackson], 335 U.S. 458, 69 S.Ct. 194, “But it seems to me that each tenant of a building, while he has no right to exclude from the common hallways those who enter lawfully, does have a personal and constitutionally protected interest in the integrity and security of the entire building against unlawful breaking and entry.” Next relied upon is Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), the facts of which were that after narcotics officers recognized a strong odor of opium burning in a hotel room they demanded entry, and defendant opened the door of the room, which resulted in her arrest and the seizure of certain items of evidence. It was held that the arrest, search and seizure were invalid, the court saying that the entry into defendant’s living quarters was demanded under color of office, granted in submission to authority. These cases are not factually similar to the situation at the Berkley Hotel.

As is quite apparent from Officer DeMent’s testimony that he had the custom of visiting the Berkley from one to five times a month, and that this was done with the approval, acquiescence, or tacit permission, of persons in charge, he and his partner were not even technical trespassers on the premises. The evidence is further that the hotel owner stopped DeMent and said he had seen him around before. (There is no evidence that the owner objected to DeMent’s presence.) It cannot be said under the facts of the officers’ custom to check the hotel premises that there existed unlawful trespass. The trespass statute of this state, § 560.447, RSMo 1969, V.A.M.S., (Laws 1973, p. -, H.B.No.128, § 1), provides that “No person shall willfully enter or remain upon or in any land, structure, vehicle, aircraft, or watercraft with knowledge that he is not authorized or privileged to enter or remain upon or in such land, structure, * * * if: (1) He enters upon or in the land, structure, * * * after such entry upon or in has been forbidden by a personal communication of the owner or person authorized by the owner to make such communication, or he remains upon or in the land, structure, * * * after he has been ordered to leave by the owner or person authorized by the owner to so order; or (2) The land, structure * * * is posted in a reasonable manner which would ordinarily come to the attention of intruders; or (3) The premises or property is located within a city, town or village, and is used for residential purposes. * * It is certainly not shown that the officers were with any knowledge that they were not authorized or privileged to enter the premises. Contrarily, the legitimate inference is that they were welcomed by those ostensibly in charge of the Berkley to make their checks. No one had forbidden them to enter, and no one ordered them to leave.

It is not shown here that the no trepass-ing sign was erected exclusively to protect tenants’ interests in the common hallways of the Berkley, where this arrest and seizure of the restricted drug occurred. It is not shown that tenants had the right to exclude intruders from the hallways so as to make them adjuncts of ownership to rooms in the hotel. United States v. Young, 322 F.2d 443 (CA 4th, 1963), is in point. There from the vantage of adjoining woods agents watched defendants unload various items used in the illicit whisky business into a barn. The door of the barn was opened “fortuitously”, by those inside before the agents knocked. The court said, 322 F.2d 445[5, 6], “In the absence of any testimony whatever that the woodlands were owned by O’Neal [co-defendant], there is no basis for a finding that the agents committed even a technical trespass as they observed the defendants’ activities from their concealed position in the woodlands. If their observation of the large quantity of whisky stored in the barn be regarded as a search, it was plainly incident to, and contemporaneous with, the valid arrests which they effected when Young threw open the door of the barn.”

Contending that there were material conflicts in the testimony of DeMent as to whether he had permission to go to the second floor of the hotel, and further conflicts between his testimony and appellant’s friend, Miss Vicki Walberg, appellant says the evidence failed to establish his guilt beyond a reasonable doubt. The record shows that there were not material conflicts in DeMent’s testimony. What has been said above, set forth in the light most favorable to the state, supports the conviction. Any conflicts in the testimony were for the trial court to resolve. Clearly the state made a submissible case.

The judgment is affirmed.

All concur.


author: DIXON, Judge.

text:
    STATE of Missouri, Respondent, v. Larry G. TILCOCK, Appellant.
    No. KCD 26882.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.

      Hill, McMullin & Wilson, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Dan Summers, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   DIXON, Judge.

Defendant appeals from a jury imposed sentence of seven years. He was charged with the sale of a quantity of amphetamine sulfate.

There is no issue as to the sufficiency of the evidence and the facts may be simply stated. A police officer assigned to narcotics and working under cover was informed by a trusted and reliable informant that the defendant would sell. The informant and the police officer went together to a tavern. The defendant waved to them, and they went to the bar where a short conversation occurred. The threesome then retired to a narrow hallway leading to the restrooms of the tavern. This hallway had a water heater in it and was apparently in excess of 6 feet long and less than 3 feet wide. The defendant was at the end of the hall, then the officer, and then the informant. The officer’s back was to the informant who was acting as a lookout at the door of the hallway leading to the tavern. The testimony indicates the policeman was close enough to pass money to the defendant, but the informant was five to six feet away. The only conversation in the hallway consisted of the defendant saying he had “twenty of them for $5.00.” The officer gave him the $5.00, and defendant indicated they were on the water heater. The officer saw and retrieved a tin foil packet, opened it, saw small white pills which he said were known as “mini whites.” The packet and its pill contents were kept in a continuous chain of custody, and the defense stipulated the admission of the chemical report which showed they were amphetamine sulfate.

Three other officers were involved, but two of them did not testify, having had no part in the proceedings. Officer O’Rear, appropriately described as the “backup crew,” was a part of the chain of evidence on the pills, but witnessed the meeting and the conversations at such a distance that his testimony adds nothing to the essential facts.

Defendant’s motion for a new trial raises two points, the complaining officer’s testimony that defendant offered larger sales and sales of “smack” (heroin) and denial of disclosure of the identity of the informer. In brief filed here, defendant also asserts error in permitting the arresting officer to testify that the small white pills purchased were “mini whites.” The defendant had objected to this testimony on the grounds that the officer was not a chemist. The defendant, however, failed to include the claimed error in his motion for new trial, and it cannot now be urged as a ground for reversal. Rule 27.20(a), V.A.M.R.; State v. Raspberry, 452 S.W.2d 169 (Mo.1970). Defendant had stipulated prior to trial that the pills in question were amphetamine- sulfate, and the officer had testified that in street parlance, the pills were known as “mini whites.” No claim is made that the testimony should be considered as plain error.

The defendant also claims in his brief that the argument of the prosecutor based on the testimony of the officer that the defendant would sell larger quantities or other drugs was error. Again, the motion for new trial does not raise this issue; it is not before this court on this appeal. Rule 27.20(a). Raspberry, supra. Nor has defendant sought review as plain error.

The same evidence of the officer as to sale in 1,000 lots and of “smack” was objected to at trial on the ground of showing other offenses. The trial court overruled the objection and the defendant’s claim of error in that ruling has been preserved in the motion for new trial. The trial court in his ruling on the objection noted the evidence bore on the intent of the defendant in making a sale.

Defendant’s cited cases all deal with the state offering or arguing evidence of prior crimes. This evidence was as to the proposed commission of a subsequent offense and of a nature so as to bear directly on the intent or motive or the defendant as to the instant charge. Clearly, this evidence is within the exception permitting such proof to show motive or intent. State v. Niehoff, 395 S.W.2d 174, 180 (Mo.1965).

The final issue raised by the defendant is the claim of error, properly preserved, that the trial court erred in refusing to require the State to divulge the name of the informant who accompanied the arresting officer. Relying on State v. Davis, 450 S.W.2d 168 (Mo.1970), the defendant urges that the informant necessarily possessed information helpful to the defense. The disclosure of an informant’s name involves the balancing of the interest of the State in protecting the identity of the informant and the need for the disclosure to provide the defense with whatever assistance to the defendant the informant’s testimony might be. State v. Hubble, 494 S.W.2d 358, 361 (Mo.App.1973). The trial court was cognizant of and applied the proper test by withholding a ruling on the disclosure until the evidence had been developed as to the role of the informer in the entire transaction. Based upon that, the trial court found the informant was not a witness to the critical stage of the transaction because of the distance between the informant and the defendant. The arresting officer was also interposed between the informer and the defendant in the narrow hallway which would have interfered with his opportunity to see and hear the defendant. The informant’s attention was also diverted by his acting as a “lookout.” The part played in the transaction by this informant is minor and distinguishes Davis, supra, and Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), which involved informants who were much more involved in the entire occurrence. Davis also involved a defendant who interposed an active defense which clearly demonstrated the need for the informer’s testimony.

The judgment of conviction is affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. Thomas Jefferson LEE, Appellant.
    No. KCD 26877.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.
    James L. McMullin, Hill, McMullin & Wilson, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Ellen S. Roper, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special JJ.
   ANDREW JACKSON HIGGINS, Special Judge.

Thomas Jefferson Lee was convicted by a jury of murder, first degree. His punishment was assessed at life imprisonment, and sentence and judgment were rendered accordingly. §§ 559.010, 559.030, RSMo 1969, V.A.M.S.

Defendant was charged as “either alone or knowingly acting in concert with others” with the murder of Sol Landie.

Appellant does not question the sufficiency of evidence to sustain the charge, and the jury reasonably could find that: John Frankoviglia, also known as John Franks, devised a scheme to exterminate Sol Landie, a federal government witness; that defendant, acting as contact man for Frankoviglia, urged Edward Ronnie Williams with the promise of money that Williams and his companions, Marquise Williams, Gary Johnson, and Earl Howard kill Landie; that Ronnie Williams and his companions executed the commission on November 22, 1970, in Kansas City, Jackson County, Missouri; and that defendant paid money to Ronnie Williams for the deed. See State v. Lee, 486 S.W.2d 412 (Mo.1972), appeal from prior trial, reversed on other grounds. See also State v. Frankoviglia, 514 S.W.2d 536 (Mo.1974).

Appellant charges the court erred (I) in failing to grant a mistrial during the State’s opening statement when the prosecuting attorney stated that John Franko-viglia gave two (three) marijuanas to Ronnie Williams at a time when Franko-viglia and Williams allegedly discussed the murder, “this being evidence of other crimes not chargeable to the appellant”; and (II) in failing to grant a mistrial during the State’s opening statement when the prosecuting attorney was allowed, over defendant’s objection, to state that Franko-viglia threatened to bomb the Williams’ home if Ronnie did not commit the murder, “this being evidence of other alleged crimes not chargeable to the accused and for which he was not on trial.”

Incident (I) arose as follows:

“Johnnie Frankoviglia says, ‘I have got to have the man by Monday.’ Johnnie Frankoviglia then gives to Ronnie Williams the address of Sol Landie’s home, 7914 Washington. He says to them, ‘The man’s having a party tonight. The back door is usually left open; after the party, you can get him.’ He gives Ronnie Williams three marijuana cigarettes. * * *

“MR. McMULLIN [for the defense]: Your Honor, I * * * move for a mistrial. He is charged with murder, not with possession of marijuana and bringing in evidence of prior crimes is * * * reversible error and I think the Supreme Court so held in the Lee case which just came back.

“THE COURT: Mr. Humphrey hasn’t said a word about this defendant having any marijuana. He is talking about one of the witnesses.

“MR. McMULLIN: I understand. He is saying it is charged in a conspiracy, Judge, that Franks gave him marijuana and that Franks conspired with Lee and that is evidence of other crimes because the act of Franks if he did give it would be the act of the defendant.

“THE COURT: Objection is overruled.”

Incident (II) arose as follows:

“They received a final phone call from Johnnie Frankoviglia. Johnnie Frankovig-lia says to Ronnie Williams, T have been listening to the radio. I haven’t heard any good news. When are you going to hit the man ?’

“The evidence will be that Johnnie Fran-koviglia then threatened Ronnie Williams to either hit the man or ‘I’m going to put a bomb under your house.’ The evidence will be then that — * * *

“MR. McMULLIN: * * * I must object at this time to evidence of other bombings which can be pointed directly to the defendant such as charged in a conspiracy and I must respectfully move for a mistrial.

“THE COURT: Well, he hasn’t said there were any bombings in the first place and in the second place, I think you are misconstruing the opinion of the Supreme Court in the Thomas Jefferson Lee case of which this is a re-trial * * *. He is merely talking about the background of this very incident. It all is tied up with this very incident. He is not talking about any prior thing. Everything he talked about has to do with this witness as a part of the general picture and the prosecutor is entitled to show that and your objection is overruled.”

The foregoing indicates that defendant made his motions for mistrial in both instances; however, there are no allegations of error in his motion for new trial which go to either of these charges. Accordingly, allegations of error (I) and (II) have not been preserved for review, State v. Bowens, 476 S.W.2d 495, 499[5] (Mo.1972); Rule 27.20(a), V.A.M.R.; and they are not urged as plain errors under Rule 27.20(c), V.A.M.R.

Appellant charges the court erred (III) in allowing testimony of a telephone conversation allegedly between Ronnie Williams and John Frankoviglia not made in the presence of the defendant “which was hearsay at a time when no conspiracy was shown between the alleged coconspirators.”

According to appellant’s transcript reference, this charge arose from an incident between Frankoviglia and Ronnie Williams at Frankoviglia’s place of business; and, over defendant’s objection, proceeded as follows:

“Q (By Mr. Humphrey [for the State]): What did that mean, he had to ‘get’ him by Monday ? What did that mean on the street? A Well, street-wise, that meant go get him. Q Go get him means what ? A Kill him.”

Irrespective of defendant’s objection to admission of the foregoing, there is no allegation of error in his motion for new trial which goes to this charge. Accordingly, allegation of error (III) has not been preserved for review, State v. Martin, 411 S.W.2d 241, 243[5] (Mo.1967); Rule 27.20(a), supra; and it is not urged as plain error under Rule 27.20(c), supra. It is also readily noted that the answer in question, rather than a hearsay statement, is simply an understanding in the “street” of the term “get him.” .

Appellant charges the court erred (IV) “in overruling [his] motion for mistrial and when the State’s witness Ronnie Williams was allowed to testify not in the presence of the defendant when a conspiracy had been proven that he met Johnny Frankoviglia who gave him some marijuana cigarettes and ordered him to commit the crime.”

According to appellant’s transcript reference, this charge goes to the following: “Q Who was he talking about ‘they having a party’ ? A Johnnie, I mean, Johnnie Frankoviglia was referring to Sol Lan-die. Q. All aright. And what did he do then? A Well, they got the phone book and gave me the man’s address and telephone number and told me they was having a party and the back door would be open and what side of the bed the man would be sleeping on * * * Q This was Johnnie Frankoviglia telling you this? A Yes. Q All right. Go ahead. A Gave me three sticks of marijuana wrapped up in some toilet paper, told me he would be at a hotel with a lady friend and he told me he would be listening. Q Listening to what? A To see if it would come on the news.”

Appellant’s contention (IV) notwithstanding, the foregoing shows there was no objection, motion to strike, or request for mistrial going to the testimony of Ronnie Williams concerning marijuana and orders to kill Sol Landie given to Ronnie by Frankoviglia. Accordingly, the court did not err for failure to grant unrequested relief, State v. Stevens, 467 S.W.2d 10, 18 (Mo.1971); and defendant’s failure to object to the testimony in question and to present the charge in the motion for new trial precludes review, State v. Kern, 447 S.W.2d 571, 576[8] (Mo.1969); State v. Martin, supra. Again, there is no suggestion that this assignment constitutes plain error under Rule 27.20(c), supra.

Appellant charges the court erred (V) in failing to grant a mistrial when “Ronnie Williams testified on direct examination that after the murder Johnny Franks told him in the absence of the appellant that he was to go to Tommie’s [appellant’s] house and keep his mouth shut, that they had two more murders for him next week, this being evidence of other alleged crimes for which the accused was not on trial and not charged.”

According to appellant’s transcript reference, this charge arises from the following:

“Q All right. Did you talk to Johnnie Frankoviglia on the 23rd? A Yes. Q By telephone? A Face to face. Q Tell me what you said when you saw Johnnie Frankoviglia. A I said, ‘Frankoviglia, where is the money?’ Q And where were you when you asked him that? A At the oil company. Q What did he say? A ‘Go to Tommy’s house and keep your mouth shut. We have got two more next week.’ Q And then, after you left the oil company, where did you go? A We went to Tommy’s house. Q And what did you do there ? * * *

“MR. McMULLIN: Your Honor, if I recall correctly, this witness just stated that after he hit this man that Johnnie Franks had two more killings for him next week. Would you look back there as to what Ronnie said about he had two more for him next week ?

“(Whereupon, the following answer was read back by the reporter outside the hearing of the jury: ‘Answer: “Go to Tommy’s house and keep you mouth shut. We have got two more next week.” ’)

“MR. McMULLIN: Your Honor * * *. He just said he went to Johnnie Franks’ house after he said he killed this man and Johnnie Franks told him he had two more killings for him next week that is evidence of other crimes for which the defendant isn’t on trial and I * * * move for a mistrial. MR. HUMPHREY: * * * it is all part of the same transaction involving the same conspiracy * * * it is not evidence of other crimes, T have two more next week’, and it is ambiguous, and left without explanation, I don’t think it is harmful at all and, in any event, it is part of this transaction. THE COURT: I agree that in any event it is not evidence of the commission of another crime and the objection is overruled and the motion for mistrial is overruled.”

Appellant asserts that this incident constituted evidence of other crimes and was, therefore, inflammatory and prejudicial. His argument is premised on an erroneous interpretation of the evidence, i. e., that it meant Ronnie was to “keep his mouth shut and they [Frankoviglia and Lee] had two more killings for him next week.”

Appellant’s contention and argument are fraught with several difficulties.

First, it is doubtful that the testimony in question referred to other crimes. It did not mention any specific crime; and, if it did refer to any crime, the reference was to something in the future. In its ambiguity, the testimony may well have referred to payments or sums of money, inasmuch as it followed the question “where is the money ?”

Second, the testimony went to an event which occurred pursuant to and following the successful conspiracy to murder and was admissible as a statement of defendant’s coconspirator, John Frankoviglia. State v. Holloway, 355 Mo. 217, 195 S.W.2d 662, 665[9, 10] (1946).

Third, the testimony related to matters on the date following the murder in question, and was relevant and admissible as part of the transaction and conspiracy. State v. King, 375 S.W.2d 34, 39[11] (Mo.1964).

Accordingly, the trial court did not err in failing to grant a mistrial in this instance.

Judgment affirmed.

All concur.


text:
    STATE ex rel. FEE FEE TRUNK SEWER, INC., a corporation, Relator-Respondent, v. PUBLIC SERVICE COMMISSION OF MISSOURI, Respondent-Appellant. STATE ex rel. ST. LOUIS COUNTY, Missouri, and the Home Builders Association of Greater St. Louis, Relators-Respondents, v. PUBLIC SERVICE COMMISSION OF MISSOURI, Respondent-Appellant.
    No. KCD 26857.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.

      Harry Wiggins, Gen. Counsel, David L. Smith, Asst. Gen. Counsel, Paul W. Phillips, Asst. Gen. Counsel, Jefferson City, for respondent-appellant.
    Russell A. Grantham, Bridgeton, Herman W. Huber, Jefferson City, for Fee Fee Trunk Sewer, Inc., relator-respondent.
    George F. Gunn, Jr., St. Louis County Counselor, Clayton, for relator St. Louis County.
    Arthur R. Tucker, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, for Home Builders Association of Greater St. Louis, relator-respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal by Public Service Commission of Missouri from judgment upon review which remanded this cause “for further proceedings” with respect to rates to be charged by Fee Fee Trunk Sewer, Inc.

A chronicle of the proceedings below will demonstrate that a detailed statement from the nearly 2,000 pages of testimony and numerous exhibits in evidence before the Commission is not necessary to the determination of this appeal.

On February 16, 1971, Fee Fee Trunk Sewer, Inc., filed with the Public Service Commission a schedule of proposed rates for sewer service effective March 8, 1971, which, if approved, would raise such charges to residential customers from $28.-50 to $60.00 annually.

On March 11, 1971, the Commission, pursuant to Section 393.150(1), RSMo 1969, V.A.M.S., suspended the proposed rates to July 16, 1971, and ordered Fee Fee to present its evidence in support of the proposed rates at a hearing to commence May 3, 1971. St. Louis County and Home Builders Association of Greater St. Louis intervened and participated throughout this proceeding.

On May 3, 1971, Fee Fee submitted its prepared testimony and petitioned for “interim rate relief” pending final determination of the proposed rate increase. The hearing was continued to a date to be fixed.

On May 12, 1971, the Commission denied the petition for interim relief, ordered the Commission staff to file its prepared testimony by September 15, 1971, and set the matter for further hearing on September 27,1971.

On July 2, 1971, the Commission, pursuant to Section 393.150(2), RSMo 1969, V.A.M.S., further suspended the proposed rates to January 16, 1972.

On September 13, 1971, the Commission ordered a prehearing conference for September 20, 1971, for purposes of formulating and simplifying the issues. At the conference the Commission staff proposed certain adjustments to Fee Fee’s financial statements as a result of the staff’s audit and investigation of Fee Fee’s records through December 31, 1970. All adjustments were stipulated except two which pertained to Fee Fee’s balance sheet and two which pertained to its income statement for twelve months adjusted to the December 31, 1970, “operating level.”

On September 27 and 28, 1971, the hearing resumed, Fee Fee’s witnesses were cross-examined by the Commission staff and the intervenors, and the hearing was continued to October 12, 1971.

On October 12, 13 and 14, the hearing was again resumed and continued to October 26, 1971, at which time testimony of public witnesses was taken in Clayton, Missouri.

On January 14, 1972, Fee Fee filed written consent to extension of the second suspension period under Section 393.150(2), supra, from January 16, 1972, “to allow the Commission time to complete its report and order * * * and allow approximately ten days from date of issue to the effective date * * * with the understanding said decision and report and order will be issued on or about January 19, 1972, with an effective date of February 1,1972.”

On January 20, 1972, a majority of the Commission, with one commissioner not participating and one commissioner dissenting, issued its Report and Order, effective January 31, 1972, by which Fee Fee’s proposed commercial rates were approved, its proposed and suspended tariffs for residential customers were determined to be unreasonable and canceled, and Fee Fee was ordered to file new tariffs for residential customers of $3.50 monthly, $21.00 semiannually.

On January 28, 1972, Fee Fee, Home Builders Association, and County filed Motions for Rehearing.

On February 1, 1972, the Commission granted a rehearing as requested by Fee Fee, Home Builders Association, and County; and approved increased tariffs filed by Fee Fee pursuant to the Report and Order of January 20, 1972, effective February 1, 1972.

On February 1, 1972, Fee Fee petitioned for Writ of Review which was issued March 1, 1972, and quashed March 22, 1973, “for the reason that it was prematurely issued.”

On February 3, 1972, the Commission ordered a prehearing conference for February 9, 1972, at which the rehearing was set for February 18, 1972.

On February 18, 1972, the rehearing was commenced, and it was concluded May 1, 1972. The record of the prior hearings was incorporated and additional evidence was adduced through cross-examination of some of Fee Fee’s witnesses and from Commission staff witnesses.

On May 25, 1972, a majority of the Commission, with one commissioner not participating and one commissioner concurring in part and dissenting in part, issued its Interim Report and Order, effective June 1, 1972, by which Fee Fee’s proposed commercial rates were again approved, its proposed and suspended tariffs for residential customers were again canceled, its rates for residential customers filed January 27, 1972, and approved by the Commission February 1, 1972, were canceled, and Fee Fee was ordered to file new tariffs for residential customers of $3.00 monthly to commence with billings commencing July 1, 1972, all “with the proviso that a final Report and Order will fix a proper return and rates upon traditional rate-making concepts when the Staff has completed its original cost study, as such then seems advisable. Suffice it to be said that at this time, the rate of return on the value of the property used in the public service is certainly to be considered in setting just and reasonable rates, and we desire to do so when the original cost study is completed.”

On May 30 and 31, 1972, Fee Fee, Home Builders Association, and County filed Motions for Rehearing.

On June 6, 1972, the Motions for Rehearing were denied.

On June 9, 1972, Fee Fee filed its Second Petition for Writ of Review under Section 386.510, RSMo 1969, V.A.M.S., to be directed to the Public Service Commission “to certify * * * the entire record * * * for the purpose of having the reasonableness and lawfulness of its Interim Report and Order dated May 25, 1972 * * * and its original report and order dated January 20, 1972 * * * inquired into and determined, and * * * that if * * * said orders and decisions * * * be unlawful or unreasonable, enter * * * judgment reversing and setting aside said orders and decisions and find that the rates originally filed February 16, 1971, became effective by operation of law in accordance with Sec. 393.150 * * *.”

On June 14, 1972, Home Builders Association and County jointly filed a similar petition for writ of review.

On June 9, 1972, the circuit court issued its Writ of Review ordering the Commission to certify its entire record in this proceeding “to the end that this Court may adjudge upon the regularity of said proceedings and determine the reasonableness and lawfulness of said reports and orders and to the further end that this Court will make such further and other orders herein as right and justice may require.”

On June 27, 1972, on motion of Fee Fee under Section 386.520, RSMo 1969, V.A.M.S., the court granted Fee Fee “20 days from the date * * * to file * * * a suspending bond * * * in the sum of Eighty-Four Thousand Dollars ($84,000.00) and an additional bond of Eighty-four Thousand Dollars ($84,000.00), or the equivalent of subsequent billings to residential customers in excess of the rate ordered by the Interim Report and Order of Respondent, dated May 25, 1972, prior to the next billing period or periods, during the pendency of this appeal, conditioned according to law, and with the General Insurance Company of America, a Washington Corporation, as surety thereon. * * * that upon the filing and approval of the aforesaid suspending bond within the time stated and certification by a duly authorized officer of Relator that the terms of this order will be complied with, the INTERIM REPORT AND ORDER of the Public Service Commission dated May 25, 1972 is stayed and suspended, pending final disposition of this case by such further orders of this court as may be appropriate under the circumstances and law. * * * that all monies collected from Relator’s residential customers, in excess of the Three Dollar ($3.00) per month rate ordered by the INTERIM REPORT AND ORDER, dated May 25, 1972, on all billing periods commencing on and after July 1, 1972, during the pendency of this appeal, shall be deposited in a separate interest bearing account * * *; said funds are not to be commingled with other funds of Relator and shall not be withdrawn from said fund or account except on order of this Court. * * * that Relator shall file with this Court a verified list of all residential customers of Relator, showing * * * the amounts billed in excess of the charge ordered by the INTERIM REPORT AND ORDER of Respondent, dated May 25, 1972, covering each billing period for sewer service due on and after July 1, 1972, and Relator shall make verified monthly reports to this Court, on or before August 10, 1972, and the 10th day of each succeeding month thereafter, during the pendency of this appeal, of the amounts collected in excess of the amount which Relator might have been authorized to charge and collect if said INTERIM REPORT AND ORDER had not been stayed and suspended, together with the amounts deposited to the above-described account.”

On June 29, 1972, Fee Fee filed the required Suspending Bond and list of residential customers, and commenced and still is making monthly payments into the interest-bearing account.

On July 10 and July 20, 1972, the Commission filed its returns to the Writs of Review issued by the circuit court.

On July 19, 1972, the Commission moved for consolidation of the two reviews. On July 28 and July 31, 1972, Home Builders and County filed similar motions to consolidate.

On November 17, 1972, the parties argued the cause.

On June IS, 1973, the court ruled the consolidated cause as follows:

“A review of the files in the above cases forces this Court to the conclusions that the decisions of the Public Service Commission in these cases are not subject to final review under the statutes relating to review and appeal of the orders of the Public Service Commission.

“The Public Service Commission made several Orders, or attempted Orders, and its final action dated May 25, 1972, is designated as ‘Interim Report and Order.’ By that Order the Commission cancelled rate tariffs previously approved by it on February 1, 1972, and ordered the applicant to file new tariffs in the amount of the rates therein specified. The authority of the Commission to take this action is seriously questioned. In order that this court shall not create more confusion than already exists, we decline to rule on that part of the Interim Order.

“The Commission has heard the testimony of the applicant pertaining to its application for an increased rate. It had the authority to present and consider the testimony of its staff or the original cost study and other matters which make up a rate base. This was not done. The Commission ordered that its staff make a cost study of the applicant’s plant and services, and to report same to the Commission for its final approval.

“On June 27, 1972, this Court entered an Order that all that part of the applicant’s rate that was decreased by the Public Service Commission’s ‘Interim Report and Order’ should be placed in escrow and there held until the final determination of this litigation and the further Order of the Court. This Order has been and is now being complied with by the applicant.

“The present causes must be remanded to the Public Service Commission so that they can make a final report and order. This final report and order can be based upon the testimony already heard or such additional testimony as the Commission, the applicant or intervenors may care to present. It is only in this way, upon a complete record, that the parties’ rights can be determined and reviewed by this Court. * * *

“IT IS, THEREFORE ORDERED AND DECREED THAT this cause be remanded to the Public Service Commission for further proceedings as above set out.

“IT IS FURTHER ORDERED that this Court’s order of June 27, 1972 shall remain in full force and effect, pending further Order of this Court.”

Appellant Public Service Commission contends the court erred in its order of remand on the ground that the court possessed the jurisdictional power to review this controversy on its merits, and ignored its statutory mandate to accord review on the merits and determine the reasonableness or lawfulness of the Commission’s Interim Report and Order. Appellant Commission concludes that the cause should be reversed and remanded to the circuit court for a review on the merits.

Respondent Fee Fee Trunk Sewer, Inc., asserts (I) that the court’s order of remand was within its power; and by Points II, III, IV, V, and VI, would have this court determine the reasonableness or lawfulness of the orders in question asserting variously that they are arbitrary, unreasonable, unjust, contrary to evidence, unlawful, confiscatory, unconstitutional, contrary to rules and regulations of the Commission, contrary to its established policy, and contrary to law.

The circuit court possessed the necessary jurisdiction to review these proceedings of the Public Service Commission. Section 386.510, provides: “Within thirty days after the application for a rehearing is denied, * * * the applicant may apply to the circuit court * * * for a writ of certiorari or review * * * for the purpose of having the reasonableness or lawfulness of the original order or decision or the order or decision on rehearing inquired into or determined.”

Fee Fee’s petition for writ of review was timely filed, the court timely issued its writ of review for the purpose provided in the statute, and the Commission timely filed its return. In the interim between Fee Fee’s petition and the Commissioner’s return, the court exercised its jurisdiction under Section 386.520, RSMo 1969, V.A. M.S, to stay the Interim Report and Order and to cause the difference in residential sewer rates ordered January 20, 1972, and those ordered May 25, 1972, to be deposited in a special account. The court subsequently heard arguments, took the cause under advisement, and entered findings and judgment by which it purported to dispose of the case.

Quite properly, respondent concedes both the statutory jurisdiction of the court and its exercise by the court.

The difference between the parties, and the question is, whether the court erred in the exercise of its jurisdiction by entry of its judgment of remand.

Section 386.270, RSMo 1969, V.A.M.S, provides: “All rates, tolls, charges, schedules and joint rates fixed by the commission shall be in force and shall be prima facie lawful * * * until found otherwise in a suit brought for that purpose * ⅜ ⅜

Section 386.510, supra, in addition to those matters previously noted provides that after the writ of review is returned, “No new or additional evidence may be introduced * * * but the cause shall be heard by the court * * * on the evidence and exhibits introduced before the commission * * *. Upon such hearing the circuit court shall enter judgment either affirming or setting aside the order of the commission under review. In case the order is reversed by reason of the commission failing to review testimony properly proffered, the court shall remand the cause to the commission, with instructions to receive the testimony so proffered and rejected, and enter a new order based upon the evidence theretofore taken, and such as it is directed to receive. The court may, in its discretion, remand any cause which is reversed by it to the commission for further action * *

Section 386.510, supra, has been construed to mean that “ * * * all orders of the commission are subject to judicial review, and * * * after the chancellor has made his own finding of the facts, the only application he can make of them is to determine from them whether the order under review is reasonable and lawful. If he finds it both reasonable and lawful it is his duty to affirm it; if he finds it either unreasonable or unlawful, he must set it aside. * * * When an order is set aside, the court may remand the cause to the commission for such further action as it may desire to take; the court oversteps the boundaries of its jurisdiction when it attempts to tell the commission what the action should be. There seems to be one exception to this: When the commission has excluded evidence it should have received, the cause may be remanded with directions that it hear such evidence and then make a new order.” State ex rel. Detroit-Chicago Motor Bus Co., Inc. v. Public Service Commission, 324 Mo. 270, 23 S.W.2d 115, 117[1, 2] (1929).

Accordingly, the circuit court was obliged to review all orders of the Commission brought before the court by its writs of review; and upon its review the court was limited to a determination whether such orders were reasonable and lawful. If they were determined to be both reasonable and lawful, the court was obliged to affirm them. If they were determined to be either unreasonable or unlawful, the court was obliged to set them aside. If an order was set aside, the court could then remand the cause for such further action as the Commission might desire to take. If the court had determined that the Commission excluded or rejected proffered evidence, the court could have remanded the cause with directions that such evidence be heard by the Commission and then to make a new order. State ex rel. Detroit-Chicago Bus Co., Inc. v. Public Service Commission, supra. See also State ex rel. Case v. Seehorn, 283 Mo. 508, 223 S.W. 664 (banc 1920).

The court in this case thus erred through its failure to comply with the statute governing review of this matter. The decree and order purports to remand the cause to the Commission “for further proceedings”; however, there was no review on the merits resulting in any order being set aside upon which to premise a remand. The court concluded that the decisions of the Commission were not subject to final review under the statute; however, the statute provides and it has been construed to mean that all orders of the Commission are subject to review. The court questioned the authority of the Commission to make the Interim Report and Order by which it canceled tariffs previously approved, but did not decide the case on any such ground. The court found that the cause must be remanded to the Commission for a final report and order before the record is complete for determination and review. This, too, is in conflict with both the statute and case law that all orders of the Commission are subject to review.

Respondent questions whether “interim” orders are subject to review at all. Suffice to say that the statute provides for all orders of the Commission to be subject to review; and the test of “interim” orders by review partakes of the nature of test orders which traditionally have been subject to review. See, e. g., State ex rel. Watts Engineering Co. v. Public Service Commission, 269 Mo. 525, 191 S.W. 412 (banc 1916); State ex rel. Washington University v. Public Service Commission, 308 Mo. 328, 272 S.W. 971 (banc 1925); State ex rel. City of St. Louis v. Public Service Commission, 317 Mo. 815, 296 S.W. 790 (banc 1927); State ex rel. Pitcairn v. Public Service Commission, 232 Mo.App. 535, 111 S.W.2d 222 (1937).

Respondent argues that a literal in-terpretaion of Section 386.510, supra, utilizing and emphasizing the term “remand,” authorizes the remand attempted by the court. As noted in State ex rel. Detroit-Chicago Motor Bus Co., Inc. v. Public Service Commission, supra, the authority to remand is limited to cases where an order of the Commission has been set aside on the ground it was either unreasonable or unlawful and where the Commission has excluded or rejected proffered evidence. A party may not fragment a statute for purposes of construction so as to isolate for consideration language favorable to a certain construction, while at the same time excluding language which compels a different construction when the statute is construed in its full context. State ex rel. Valley Sewage Co. v. Public Service Commission, 515 S.W.2d 845 (Mo.App.1974).

It already has been demonstrated that the court accorded no review on the merits by which to have set aside any order of the Commission; there was no determination that any order was unlawful, and nothing in the court’s findings, conclusions, and judgment purports to deal with proffered and rejected evidence.

Respondent argues also that the court’s attempted remand was proper under Iron County v. State Tax Commission, 480 S.W.2d 65 (Mo.1972). That case is not in point because it was a dismissal of an appeal in a tax case “solely on the holding that there are no findings of fact appearing in the Commission’s ‘Findings of Fact, Conclusions of Law and Decision’ from which a Circuit Court could know the basis upon which the Commission [acted] * * 480 S.W.2d l.c. 70-71.

Respondent also cites State ex rel. Centropolis Tr. Co. v. Public Service Commission, 472 S.W.2d 24 (Mo.App.1971), in support of the court’s attempted remand. That case is distinguishable because the report there sought to be reviewed was unlawful on its face in that it did not represent action by a majority of the commissioners since only two commissioners concurred in the order and remand on the ground that the order was unlawful was proper. See also State ex rel. St. Louis County v. Public Service Commission, 360 Mo. 270, 228 S.W.2d 1 (1950), where the remand properly was ordered because of a similarly unlawful order.

Respondent’s Points II-VI are not responsive to appellant’s brief. They are directed at the Commission’s orders rather than the decision appealed from the circuit court; they were not presented to the circuit court, and are not properly before this court. For this court to consider them on their merits would be to perform the statutory function of the circuit court under Section 386.510, supra.

Respondent also moved to dismiss this appeal. The motion was taken with the case and is now denied by this decision on the merits of the appeal.

For the indicated error, the judgment is reversed and the cause is remanded for further proceedings not inconsistent with this decision.

All concur.


author: STEWART, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Larry THOMAS, Defendant-Appellant.
    No. 35486.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Feb. 11, 1975.
    Motion for Rehearing or Transfer Denied April 14, 1975.
    As Corrected May 27, 1975.

      Charles D. Kitchin, Public Defender, James C. Jones, John H. Marshall, Walter H. Sheata, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.
   STEWART, Judge.

Defendant was found guilty of murder in the first degree and of attempted robbery first degree by means of a dangerous and deadly weapon. In accordance with the provisions of the Second Offender Act he was sentenced to life imprisonment with respect to the murder first degree and to fifteen years on the charge of attempted robbery first degree, the terms to run consecutively. We affirm.

While defendant’s sole allegation of error is couched in assumptions, fairly read he contends that the trial court erred in admitting his oral confession because he was confined to the hospital as a result of gunshot wounds and was receiving medication when the confession was obtained and he was thus unable to knowingly and understandably waive his constitutional rights.

The sufficiency of the evidence is not contested, therefore, a brief statement of the facts will suffice.

At approximately 6:15 P.M. on the 8th of November, 1972, Mentoe Vernell went to the Reid Auto Parts Store located at 4750 Martin Luther King Drive to pay his bill. The general manager, a clerk, and Vernell, a regular customer, were the only persons in the store. A short time later the accused and his companion, Fancell Johnson, entered the store. Johnson walked over to the general manager and inquired about auto parts. At this time the defendant announced a holdup. Vernell reached out for the accused who had a gun in his hand. The accused fired four or five shots point-blank at Vernell before Vernell, who was armed, reached into his pants pocket, pulled out a gun, and fired three shots striking defendant in the arm and leg. Defendant and Vernell fell wounded to the floor. The police, who arrived on the scene almost immediately, disarmed the defendant. The defendant and Vernell were then taken to the hospital. Vernell died of the gunshot wounds while enroute to the hospital.

Defendant’s motion to suppress the confession was heard by the trial court outside the presence of the jury and overruled. Further evidence was adduced during the trial. Detective Cox went to the hospital the morning after the shooting and interviewed the defendant in the presence of his sister and a friend who were visiting. Upon being advised of his rights defendant refused to make a statement concerning the occurrence. He did tell Detective Cox that he had recently been released from the penitentiary and also gave him his present address.

The following day Detective Cox returned to the hospital with Detective Bur-goon. They first stopped at the nurses’ station to determine whether the defendant could be interviewed. Defendant was listed as in serious condition and was receiving medication for pain and infection. Upon receiving permission, they went to defendant’s bedside. They passed the time of day with him and noted that he was “alert”. Defendant was then read the Miranda rights by Detective Cox. Defendant advised Cox that he understood his constitutional rights. Detective Cox informed the defendant that the gun involved in the shooting was probably the same gun that had been used in a robbery earlier the same day. Defendant, at that time, advised the officers that he had not been involved in the earlier robbery but that he was involved in the robbery at Reid Auto Parts and made a full statement in which he told the officers that he obtained the weapon from his accomplice on the afternoon of November 8th, shortly before they went to the Reid Auto Parts store; that upon entry to the store he announced “stick-up”; that the deceased, Mr. Vernell, turned around and began to reach into his pocket, at which time the defendant shot him. There was no evidence of physical force, coercion, promises or threats used in obtaining the statement of the defendant.

The two detectives were the only persons who testified at the hearing. The court found that defendant had been properly advised of his rights under the ruling in Miranda and that the confession was voluntary.

Defendant was in custody at the time the confession was obtained, therefore, the State had the burden of proving that the confession was volun-' tary. State v. Williams, 369 S.W.2d 408 (Mo.Banc 1963). The State, however, is not required to negative every possible circumstance which if developed would present an issue of fact as to whether the confession was voluntary. State v. Nolan, 423 S.W.2d 815 (Mo.1968), There is no prohibition against a seriously wounded person confessing to the commission of a crime. State v. Granberry, 484 S.W.2d 295 (Mo.Banc 1972). The confessions of intoxicated persons have been admitted into evidence. State v. Smith, 342 S.W.2d 940 (Mo.1961); State v. Heather, 498 S.W.2d 300 (Mo.App.1973). It has also been held that the fact that medicines or drugs have been administered to one who confesses does not necessarily render the confession involuntary. State v. Alvis, 70 Wash.2d 969, 425 P.2d 924 (1967); People v. Harrison, 41 Cal.2d 216, 258 P.2d 1016 (1953). The ultimate question to be determined is whether the statement is the result of a rational intellect and a free will and thus voluntary. State v. Heather, supra [6]. The State carries its burden by a prima fa-cie showing that the statement is voluntary. State v. Nolan, supra [9].

The procedure in this State complies with the standards of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). It provides an opportunity to fully explore the facts concerning the vol-untariness of a confession outside the hearing of the jury. The defendant is free to bring in any evidence he desires to contradict the testimony of the law enforcement personnel, without prejudice to defendant in the trial on the issue of guilt. He is free to testify on his own behalf without waiving his privilege against self-incrimination.

On the day before the confession was made defendant was in condition to receive visitors. His sister and a friend were at the hospital. He was sufficiently rational to understand his right to remain silent. In fact he exercised that right. On the following day the detectives obtained permission to interview the defendant from the nurse on duty, a tacit indication of his condition. The detectives found him to be alert and upon reading the standard Miranda warning ascertained that he understood his rights. Defendant presented no additional evidence. He did not testify as to his condition. He did not introduce the medical records which are peculiarly under his dominion. The facts surrounding the confession are uncontradicted. The trial court committed no error in admitting the confession.

The judgment is affirmed.

SMITH, C. J., and KELLY, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: RENDLEN, Judge.

text:
    Eugene E. STRODER, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 35642.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 11, 1975.
    Motion for Rehearing or Transfer Denied April 14, 1975.

      Charles D. Kitchin, Public Defender, James C. Jones, Denis Burns, Christelle Adelman-Adler, Asst. Public Defenders, St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, William F. Arnet, Asst. At-tys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., W. Earl Jacobs, Asst. Circuit Atty., Si. Louis, for respondent.
   RENDLEN, Judge.

This appeal is from an order denying appellant’s motion filed under Supreme Court Rule 27.26, V.A.M.R., to vacate or correct judgment entered in December 1970, upon his plea of guilty to Stealing by Deceit. Execution of his six-year sentence was suspended and appellant placed on five-year probation. In January, 1972, bench probation was revoked and this appeal is also from the court’s denial of appellant’s motion to rescind the revocation.

Appellant stole a typewriter in June, 1970, and after arrest, attorney Robert Vining was appointed counsel. In the months that followed Vining’s associate, Donald Meyer, at the direction of Vining and with the court’s subsequent approval, undertook the preparation of appellant’s defense. In December, 1970, appellant entered his plea of guilty, was sentenced and placed on probation.

In January, 1972, on an unfavorable probation report, the court revoked appellant’s probation without notice or hearing. Appellant filed his 27.26 motion seeking to “vacate or correct” the original sentence on June 5, 1972, followed by an amended 27.26 motion and a separate motion to rescind the probation revocation filed on July 6, 1972. At the evidentiary hearing on these motions in October the court denied the motion attacking the probation revocation and took the 27.26 motion under advisement.

On January 11, 1973, appellant filed his second motion to rescind the probation revocation. On January 22 the court conducted further evidentiary hearing and entered judgment denying the new motion attacking probation revocation as well as appellant’s 27.26 motion.

The recital of facts contained in appellant’s brief (adopted by respondent) is erroneous as to dates and order of events. This resulted from the confusing arrangement of the transcript on appeal. With considerable difficulty we sorted the facts and accordingly have in some detail set forth the events in their proper order.

Appellant’s 27.26 motion is an independent civil action governed in so far as applicable by the Rules of Civil Procedure. Movant has the burden of proof and our review is to determine whether the trial court’s findings, conclusions and judgment are clearly erroneous; if not, the judgment must be affirmed. Anderson v. State, 493 S.W.2d 681, 683 (Mo.App.1973).

Appellant’s 27.26 motion raises two contentions of error: (1) Appellant was dissatisfied with the assistance of court-appointed counsel and the court, though aware of this dissatisfaction, “took no steps to correct the situation”; (2) a request for mental examination was filed but never heard and the court’s failure to provide a hearing or order psychiatric examination was violative of due process.

I

We consider the first contention. Appellant’s dissatisfaction with counsel is no ground for post-conviction relief except as it might indicate inadequate assistance of counsel. The court-appointed counsel, Robert Vining, delegated responsibility for representing appellant to his associate, Donald Meyer, who was more experienced in criminal matters. This was brought to the court’s attention and the court confirmed that Donald Meyer was appointed “co-counsel”. The constitutional right to counsel does not mean that an accused is entitled to any particular attorney, or that during trial he can arbitrarily discharge his attorney without reason or justification. Evans v. State, 467 S.W.2d 920, 923[3] (Mo.1971). See also State v. Williams, 419 S.W.2d 49, 54[8-10] (Mo.1967). Selection of counsel for the accused is within the discretion of the trial court. State v. Hamblin, 448 S.W.2d 603, 607 (Mo.1970); State v. Riley, 394 S.W.2d 360, 363 (Mo.1965). Assignment of his duties by court-appointed attorney is not per se denial of the accused’s right to representation and we find the trial court did not abuse its discretion by permitting Donald Meyer to proceed on behalf of appellant. See State v. Herron, 376 S.W.2d 192 (Mo.1964), and Fisk v. State, 515 S.W.2d 865 (Mo.App.1974). Further, in cases involving guilty pleas the determination of the adequacy of representation is immaterial except to the extent counsel’s assistance bears on the issues of voluntariness and understanding. Barylski v. State, 473 S.W.2d 399, 402 (Mo.1971). The record clearly demonstrates the guilty plea was voluntary and made with full understanding of the act and its consequences.

Notwithstanding appellant’s protest to the contrary, his satisfaction with court-appointed counsel appears in the following testimony from the plea hearing:

“THE COURT: Are you satisfied to have this lawyer, Donald J. Meyer, represent you?
THE DEFENDANT: Yes, sir.
THE COURT: Are you positive of that?
THE DEFENDANT: Yes, sir.
‡ ‡ ⅛ ‡ ‡ ‡
THE COURT: Now, Mr. Defendant, you are then satisifed here with Donald Meyer who is the present counsel on this case, is that correct ?
THE DEFENDANT: Yes.
THE COURT: You are satisfied with the legal advice he has given you, is that correct ?
THE DEFENDANT: Yes.
THE COURT: You feel that this lawyer is competent to represent you in this matter, is that correct ?
THE DEFENDANT: Ido.
THE COURT: And you wish to change your plea from not guilty to a plea of guilty, is that correct ?
THE DEFENDANT: Yes, sir.”

In the fall of 1970 appellant wrote several letters to the court complaining of the service rendered by counsel. The record however makes it clear that attorney Meyer served his client with diligence and success. He conferred with the appellant on several occasions and filed motions to suppress and to produce copies of appellant’s statements, police reports and identification information; he deposed the state’s key witness, prepared pleadings and made court appearances.

The possibility of insanity as a defense was suggested by appellant to his attorney who prepared a motion requesting psychiatric examination. Attorney Meyer determined the motion was not well taken and his client would not authorize or permit such action. The motion was never filed.

Attorney Meyer’s successful plea bargaining obtained the state’s recommendation for a one-year “workhouse” sentence. On its own initiative the trial court offered appellant the recommended one year or in the alternative a six-year sentence with five years bench probation. Apprised of the choice of sentence, appellant conferred with counsel who again urged the “one year” as the wiser course. However, appellant selected the six-year sentence with bench probation. Appellant admitted the facts of the crime and entered his plea of guilty having been fully advised, among other things, of the range of punishment, elements of the crime, right to jury trial, presumption of innocence, right against self-incrimination, right to confront his accusers and cross-examine witnesses and his right to appeal.

The trial court properly found that counsel “adequately advised and adequately represented him” and that “he was satisfied with the attorney of record”.

II

Appellant next contends the failure of the trial court to provide a hearing on his request for mental examination was error. At the evidentiary hearing on his 27.26 motion in October, 1972, appellant’s counsel read into evidence appellant’s pro se “Motion for Examination” dated November 12, 1970, alleging appellant was not responsible for his criminal conduct “as a result of mental disease or defect” under the provisions of § 552.030. This motion was not accompanied by a plea of not guilty by reason of mental disease or defect nor by written notice of his purpose to rely on such a defense as required by § 552.030(2). Such pleas or notice are conditions precedent to mental examinations under § 552.030 and absent waiver by the state, the issue of mental responsibility should be considered only when presented as required by the statute. State v. Sears, 501 S.W.2d 491 (Mo.App.1973). Appellant’s motion did not meet the statutory requirements and the court did not err in failing to order mental examination under the provisions of § 552.030. As stated above, attorney Meyer and appellant discussed the possibility of filing a request for psychiatric examination under § 552.-030. Meyer prepared but did not file the motion he had prepared because he felt it was not justified and appellant would not sanction such action. As Meyer testified, “We really never came to a meeting of the minds on it.” Subsequently appellant withdrew his not guilty plea, made no mention of the defense of insanity, entered his plea of guilty and took the benefit of bench probation. If, after consultation with a competent attorney, an accused person intentionally relinquishes a known right or privilege, he is deemed to have waived it. Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). See Anderson v. State, supra.

Appellant now urges his pro se motion should have been considered under § 552.020 and that the mere filing of the motion put the court on notice of possible mental defect or disease. § 552.020(2) directs the court to order psychiatric examination only when it has reasonable grounds to believe that defendant has mental disease or defect excluding fitness to proceed with the trial. State v. Mares, 486 S.W.2d 215 (Mo.1972). See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Brizendine v. Swenson, 302 F.Supp. 1011 (W.D.Mo.1969). Under the facts here the trial court did not err in accepting defendant’s guilty plea without ordering psychiatric examination. The court had no knowledge of the pro se motion nor any indication from defendant of incompetence to stand trial or insanity as a defense. Appellant’s pro se motion under § 552.030 was prepared without the knowledge of his counsel and never mentioned to him. No copy was served upon the circuit attorney and no record or minute entry of filing appears in this transcript to tell us when or how it was filed. The motion, read into evidence at the hearing in 1972, was signed November 12, 1970.

We believe there was no error in the trial court’s finding “that there was no evidence of any request for a mental examination”. When asked why he made such application, appellant testified as follows:

“Q. Relating to .the application for mental examination you made on your own behalf, why did you make such an application ?
A. I don’t know, it seemed like every time I get an arrest or something like that, it’s always been while I’ve been drinking or after I’ve been drinking.”

Before accepting his guilty plea in December of 1970 the court inquired as to the appellant’s mental and physical condition. Appellant explained that he was not using drugs or intoxicating liquors. He belonged to Alcoholics Anonymous and had not used liquor since July of 1970. Appellant had a twelfth-grade education, his mental health was average and his physical health good. He further testified that he was an alcoholic but did not remember whether he had informed his attorney of this fact. No incident occurred at the plea proceeding to cast doubt on his mental capacity or competence to stand trial. Miller v. State, 498 S.W.2d 79, 85[8-12] (Mo.App.1973); State v. Harris, 477 S.W.2d 42, 45 (Mo.1972); State v. Sears, supra 501 S.W.2d at 493. The test of competency to stand trial is whether appellant had sufficient ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as a factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Brown v. State, 485 S.W.2d 424, 429 (Mo.1972). Appellant clearly demonstrated a rationality and understanding sufficient to meet the test. Appellant finally contends he was never allowed the opportunity to adduce evidence of mental illness. On the contrary, the opportunity was open until his plea of guilty was finally accepted. The order of the trial court denying appellant’s 27.26 motion is affirmed.

Ill

Finally, appellant contends the trial court erred in revoking his probation without prior notice or hearing contrary to Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), Moore v. Stamps, 507 S.W.2d 939 (Mo.App. banc 1974), and Brandt v. Percich, 507 S.W.2d 951 (Mo.App. banc 1974). He asks us to find the trial court denied him the minimal requirements of due process and that we should discharge him from custody by giving retroactive application to the principles announced in Morrissey.

This point comes to us on direct appeal from the trial court’s refusal to rescind the order revoking appellant’s probation and we are confronted with § 549.141 which provides: “The action of any court in granting, denying, revoking, altering, extending or terminating any order placing a defendant upon probation or parole is not subject to review by any appellate court.” As made clear in State v. Madison, 519 S.W.2d 369 (Mo.App.1975), this court is governed by the statute. However, we note, as did the court in Madison, that some review in such cases is available but must be by writ of prohibition or by habeas corpus. See also State v. Camden, 514 S.W.2d 181 (Mo.App.1974); Green v. State, 494 S.W.2d 356 (Mo. banc 1973); State ex rel. Douglas v. Buder, 485 S.W.2d 609 (Mo. banc 1972), reversed on other grounds, 412 U.S. 430, 93 S.Ct. 2199, 37 L.Ed.2d 52. The appeal from denial of appellant’s motion for vacation of the probation revocation is therefore dismissed without prejudice to appellant’s right to seek the proper remedy.

Affirmed in part, dismissed in part.

WEIER, P. J., and DOWD and CLEMENS, JJ., concur.

      . All references are to RSMo 1969 unless otherwise noted.

      . Appellant was under arrest on a different charge when notified of the revocation.