author: KENNEDY, Judge.

text:
    STATE of Missouri, at the relation of GLENDINNING COMPANIES OF CONNECTICUT, INC., Dansico Associates, a Division of Mallory Randall Corporation, the Great Atlantic & Pacific Tea Company, Inc., Fleming Foods Company and Wetterau, Incorporated, Plaintiffs-Respondents, v. Albert LETZ, Supervisor of Liquor Control, State of Missouri, Defendant-Appellant, Gerbes Super Markets, Inc., Intervenor-Respondent.
    No. KCD 30334.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 3, 1979.
    Application to Transfer Denied Jan. 15,1980.

      Lori J. Levine, Jefferson City, for defendant-appellant.
    Robert B. Olsen and Irwin E. Blond, Kansas City, for plaintiffs-respondents.
    Thomas A. Vetter, Jefferson City, for intervenor-respondent.

      Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   KENNEDY, Judge.

This is an appeal by the defendant Supervisor of Liquor Control from a declaratory judgment of the Circuit Court of Cole County, by which the court declared that certain gambling-type promotional games manufactured and sold by plaintiffs Glen-dinning Companies of Connecticut and Dan-sico Associates, and sponsored by the plaintiffs Great Atlantic & Pacific Tea Company, Fleming Foods Company, Wetterau, Incorporated, and intervenor Gerbes Super Markets in the promotion of their respective grocery businesses, did not violate Regulation 15(k) (11 CSR 70-2.140(12)) promulgated by defendant Supervisor.

Participating in the games were 22 Missouri stores of plaintiff A & P; 46 owned by or affiliated with plaintiff Fleming Foods; 151 owned by or affiliated with plaintiff Wetterau; and 9 owned by inter-venor Gerbes. Most of these stores had licenses to sell liquor or non-intoxicating beer, issued under §§ 311.200 and 312.030, respectively, RSMo 1978.

Defendant Supervisor had threatened to institute proceedings for the revocation or suspension of the retail liquor and non-intoxicating beer licenses of plaintiffs’ and intervenor’s stores if they continued to sponsor the games. The Glendinning Companies, Dansico, A & P, Fleming and Wet-terau filed this declaratory judgment action against the Supervisor, seeking the court’s ruling that the games were not in violation of the Supervisor’s regulation. Gerbes later entered the case as an intervenor. Gerbes’ posture is that of a plaintiff, and will hereinafter be included in the designation “plaintiffs”.

The regulation.

Regulation 15(k) (11 CSR 70-2.140(12)) reads as follows:

“No licensee shall allow upon or about his licensed premises, any gambling of any kind or character whatsoever in which the one who plays stands to win or lose money, trade checks, prizes, merchandise or property or any other consideration whatsoever. No licensee shall have any gambling devices upon his licensed premises whereby money, trade checks, prizes, merchandise or property or any other consideration whatsoever may be won or lost.”

The rule has been in effect since February 18, Í973.

The games.

The games were quite similar to each other, and we need describe only one of them in detail, as representative of all. The independent “United Super” stores, associated with plaintiff wholesaler Fleming Foods, and also the Green Hills stores, owned by Fleming, sponsored a game called “Gamerama”, manufactured by plaintiff Dansico, and which was played as follows:

The player, who is assumed to be the customer, receives, usually at the sponsoring store, a master card which contains six different games. The games are designated “Bingo”, which carries a $5 prize; “Cards”, which carries a $1,000 prize; “Square”, which carries a $100 prize; “Luck”, which carries a $1 prize; “Two Pair”, which carries a $2 prize; and “Fill Your Flush”, which carries a $20 prize.

Each one is actually a bingo-type card, containing a square subdivided into smaller squares. “Bingo”, “Square” and “Luck” each contains numbers on the small squares, along with random squares marked “Free”.

The squares on the “Cards”, “Two Pair” and “Fill Your Flush” contain playing card designations — five spade, queen diamond, and so forth — and also include “Free” squares.

The player receives, by a process hereafter described, Gamerama “markers”. The markers are the same size as the squares and contain numbers or playing card designations. If a player gets a marker corresponding to any of the numbers or playing card symbols on his game card, he inserts that marker in the corresponding square on the game card. When the markers, along with the “Free” squares, form a straight row across, down or diagonally on any of the cards, with the exception of “Two Pair” and “Fill Your Flush”, he is the winner of the indicated cash prize. In the case of “Two Pair” and “Fill Your Flush”, the prizewinning combination is to fill a row across, in order to complete the poker hands indicated by the names. For example, one of the winning combinations on the $20 “Fill Your Flush” card in evidence is: King of Hearts, Eight of Hearts, Ace of Hearts, Free, and Two of Hearts, in a horizontal row. The “Free” space is counted in the row, although there is no marker for that space.

Having filled up a row so as to qualify for a prize, the lucky player takes the game card to the sponsoring store and, in the presence of authorized store personnel, he initials the backs of the markers and the completed row. The store gives him his $1, $2 or $5 prize on the spot. If, however, he has won $20, $100 or $1,000, the store will send the initialed markers and the game card, together with a “Prize Submission Agreement” for verification. Upon verification, the winner will be awarded his prize. There is no “Prize Submission Agreement” in evidence and no testimony as to what is involved in “verification”. The instructions say that a Federal Trade Commission rule requires that the names and addresses of winners be posted in all participating stores.

The winning player, instead of taking the game card, markers and signed “Prize Submission Agreement” form to the store, may instead mail it to an address given on the card.

The Gamerama master card can be secured upon request at a sponsoring store at the end of the checkout or at the store office. A player may get one free game ticket — which includes four of the “markers”, used to fill up corresponding squares on the game card — each time he visits a participating store. The game card and newspaper advertising in evidence include “odds charts” which show a player’s chances of winning the various prizes depending upon the number of his “store visits”. The chances of winning a $100 prize during the period June 16-July 15, 1977, for instance, increase from 23,140-to-l for one store visit to 890-to-l for 26 store visits. The odds change and are updated and posted in the stores and in newspaper advertisements each month. A person can request game materials, including master cards and game tickets, by mailing request to Gamerama Mo., P.O. Box 26, Hazelwood, Missouri 23042. Only one request may be included in an envelope. When the game materials are returned to the person requesting them, there is also sent a first-class stamp for reimbursement. Game materials may also be requested by calling a toll-free number, shown on the game card and in the newspaper advertising. Only one telephone or mail request may be made per day for game materials to be mailed to one person or to one address. In response to mail and telephone requests, plaintiffs Wetterau, Fleming and A & P distributed 21,490 “game pieces”, as the game cards and game tickets are called, out of a total distribution of 23,075,000.

Upon the distribution of all game tickets (which, as before noted, contain the markers), the game ends. By some means not disclosed on the game card, an announcement of termination is made. All prizes must be claimed within five days after announcement of termination or they are forfeited. Moreover, whenever the advertised number of prizes have been verified, that game shall “immediately and automatically terminate without notice”, and any unverified claims in process or received after that timé are automatically rejected.

Mootness.

A preliminary matter must first be considered. Respondent moves for a dismissal of the appeal of the Supervisor of Liquor Control on the ground that the case has become moot as a result of the enactment of § 572.100, RSMo 1978, a part of the Criminal Code. A case is moot if the decision of the court can have no practical and enforceable consequences as between the parties. The court does not indulge in academic exercises, but operates upon live controversies. Magenheim v. Board of Education, 347 S.W.2d 409, 417 (Mo.App.1961).

The section which according to the plaintiffs moots the present case, reads as follows: “The general assembly by enacting this chapter intends to preempt any other regulation of the area covered by this chapter. No governmental subdivision or agency may enact or enforce a law that regulates or makes any conduct in the area covered by this chapter an offense, or the subject of a criminal or civil penalty or sanction of any kind.” § 572.100, supra.

Chapter 572 deals with the subject of gambling as a crime. Plaintiffs say that section, as of its effective date, January 1, 1979, nullified the supervisor’s regulation, and, even as to violations of the regulation which occurred before January 1, 1979, removed from the supervisor any power of enforcement after that date.

The parties assume that the above-quoted statute does indeed have the effect contended for by plaintiffs with respect to violations occurring after January 1, 1979, but the supervisor argues that violations occurring before January 1, 1979, subject the licensee to suspension or revocation of his license after that' date.

We conclude, however, that § 572.-100 does not nullify the supervisor’s regulation either as to violations occurring before or after January 1, 1979, and our case is therefore not mooted. The Supervisor’s regulation is not aimed at gambling, per se. It does not purport to make the activity defined in the regulation either lawful or unlawful nor to attach any penalty thereto. The regulation is aimed rather at the control of the licensed alcoholic beverage-selling business. The privilege of selling alcoholic beverage is conditional, Peppermint Lounge, Inc. v. Wright, 498 S.W.2d 749, 752 (Mo.1973); Pinzino v. Supervisor of Liquor Control, 334 S.W.2d 20, 27 (Mo.1960), and one of those conditions is that a certain activity, which has a demonstrated attraction to draw people into the licensed premises where they are likely to purchase the merchandise offered therein, shall not be allowed by the licensee upon the licensed premises. This is an entirely legitimate objective and area for the Supervisor’s regulation, a point which we will develop more fully under the heading “Supervisor’s authority to promulgate Regulation 15(k),” infra. That the activity may be gambling, or may resemble gambling, whether lawful or unlawful, is merely incidental. The activity which is described in the regulation may be conducted without interdiction by the Supervisor’s regulation — but the business of alcoholic beverage sales cannot be conducted on the same premises. It was not the legislature’s intent by the Criminal Code to reduce the Supervisor’s regulatory powers over the licensed business of alcoholic beverage sales.

The protection of an activity — in our case, gambling, protected by § 372.100 from regulation by agencies and governmental subdivisions — does not reduce the boundaries of the Supervisor’s statutory power to regulate the sale of alcoholic beverages. This is true even though the indirect or tangential effect of the regulation, as a practical consequence, may be to limit the places where the protected activity is actually carried on. The principle is recognizable in California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972) where the Supreme Court of the United States considered a regulation of the California Department of Alcoholic Beverage Control which prohibited certain lewd sexual acts and displays, and the exhibition of pornographic films, in places licensed for the sale of liquor by the drink. The lower court had found that the regulations prohibited conduct which was allowable and protected under the First and Fourteenth Amendments to the United States Constitution, and that the regulations were therefore invalid. The Supreme Court of the United States reversed and held the regulations valid. The court said, “. . . While we agree that at least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression, the critical fact is that California has not forbidden these performances across the board. It has merely proscribed such performances in establishments that it licenses to sell liquor by the drink . . . The department’s conclusion, embodied in these regulations, that certain sexual performances and the dispensation of liquor by the drink ought not to occur at premises that have licenses was not an irrational one. Given the added presumption in favor of the validity of the state regulation in this area that the 21st Amendment requires, we cannot hold that the regulations on their face violate the Federal Constitution.” 409 U.S. at 118, 93 S.Ct. at 397.

In a separate concurring opinion, Mr. Justice Stewart said: “. . .1 should suppose, therefore, that nobody would question the power of California to prevent the sale of liquor by the drink in places where food is not served; or where dancing is permitted, or where gasoline is sold. But here California has provided that liquor by the drink shall not be sold in places where certain grossly sexual exhibitions are performed; and that action by the state, says the appellees, violates the First and Fourteenth Amendments. I cannot agree.

“Every state is prohibited by these same amendments from invading the freedom of the press and from impinging upon the free exercise of religion. But does this mean that a state cannot provide that liquor shall not be sold in bookstores, or within 200 feet of a church? I think not. For the state would not thereby be interfering with the First Amendment activities of the church or the First Amendment business of the bookstore. It would simply be controlling the distribution of liquor, as it has every right to do under the Twenty-first Amendment. On the same premise, I cannot see how the liquor regulations now before us can be held, on their face, to violate the First and Fourteenth Amendments.” 409 U.S. at 119-120, 93 S.Ct. at 397-398.

Declaratory judgment a proper remedy.

We are confronted with a second preliminary question — whether the plaintiffs have chosen the right remedy in this declaratory judgment action. The defendant Supervisor of Liquor Control says that they have not, but says that § 311.700, RSMo 1978, provides the exclusive procedure by which the validity of the Supervisor’s rules, and their application to the promotional games under examination, may be tested.

Plaintiffs claim that this declaratory judgment action, brought under the authority of Supreme Court Rule 87.02(c) is the correct procedure. That rule reads as follows:

“Declaratory Judgment in Respect to Rules. The power of the courts of this state to render declaratory judgments shall extend to declaratory judgments respecting the validity of rules, or of threatened applications thereof and such suits may be maintained against agencies whether or not the plaintiff has first requested the agency to pass upon the question presented.”

Neither party cites any cases in support of his position, although the subject has been dealt with in several Missouri cases, hereinafter discussed, and has engaged the labors of the scholars. Gifford, Declaratory Judgments under the Model State Administrative Procedure Acts, 13 Houston L.R. 825 (1976).

The plaintiffs claim that the defendant waived any objection to the declaratory judgment procedure in the trial court, not only by failing to object thereto but by' implicitly acknowledging in his pleadings the propriety of the procedure. It must be admitted that the defendant did not pointedly challenge the procedure in the trial court, and his objection to it, to say the most for it, was cryptic. Plaintiffs say his trial court brief expressly joined in the request for a declaratory judgment, but we do not have that before us. However, in view of the fact that we have concluded for reasons hereafter set out, that the declaratory judgment procedure is a proper remedy, and in view also of the fact that at least two of our cases (Ackerman v. City of Creve Coeur, 553 S.W.2d 490, 491 (Mo.App.1977); American Hog Company v. County of Clinton, 495 S.W.2d 123, 125 (Mo.App.1973)) hold this to be a jurisdictional question, which cannot be waived by the parties, but which we must examine, even sua sponte, we will now consider the question on its merits:

In the situation in which the plaintiffs found themselves at the beginning of this lawsuit, the grocer plaintiffs were sponsoring the promotional games. They had advertised the games, which were actually in progress. The Supervisor of Liquor Control had not initiated any proceedings for the revocation or suspension of their retail liquor licenses, but had warned them that such proceedings would be initiated unless the games were stopped.

The plaintiffs were in a dilemma. They must stop the games; or, if they believed they were within their legal rights to proceed with them, they could do so only at the risk of the suspension or revocation of their liquor licenses. True enough, the statute, § 311.700, supra, gave them a right to appeal to the circuit court any adverse decision of the Supervisor of Liquor Control— but pending the appeal, any suspension or revocation assessed by the Supervisor of Liquor Control would be in effect, for there is no provision for a stay of the Supervisor’s decision pending appeal. Success in overturning the Supervisor’s adverse decision would perhaps be only a Pyrrhic victory. And, of course, they might find when the appeals were finished that the Supervisor’s revocation or suspension was the proper decision.

It is just such uncertainty as this that the declaratory judgment provision of Supreme Court Rule 87.02(c) is designed to settle. It enables a person faced with uncertainty of his rights to secure in advance a definitive ruling settling whether a given administrative rule which threatens him is valid and is applicable to his situation or activity. A case in point is Bresler v. Tietjen, 424 S.W.2d 65 (Mo.banc 1968). In that case the State Board of Optometry had adopted certain rules for the violation of which the plaintiffs were threatened with the loss of their optometrists’ licenses. The plaintiff optometrists brought an action under the Uniform Declaratory Judgments Act, Chapter 527, RSMo 1978, challenging the validity of the rules. In holding that declaratory judgment was the proper remedy, as against the Board’s argument that the plaintiffs were confined to the administrative remedies provided by the optometrists’ licensure act, the court said: “In view of the general nature of the Declaratory Judgment Act, we are of the opinion that this is an appropriate action for a determination of the validity of such of the challenged rules as actually present a justiciable controversy. Plaintiffs are entitled to a determination which will terminate the uncertainty as to whether their manner of dealing with the optical companies constitutes grounds for revocation of their certificates of registration under the provisions of § 336.110.” 424 S.W.2d at 70.

In Goodwill Advertising Company v. State Liquor Authority, 40 Misc.2d 886, 244 N.Y.S.2d 322, 329 (1962), a case very much like the present one upon its facts, held upon a consideration of the same arguments that declaratory judgment was a proper remedy. The court noted that a declaratory judgment would “quiet a disputed jural relation involving only questions of law, and where other forms of action are not reasonably adequate.”

Section 311.700 provides for no advance judicial determination of the validity of the Supervisor’s rules or their applicability to plaintiffs’ games. While the section does say that “any party to the proceedings who is aggrieved by any final decision, finding, rule or order of the supervisor may file with the supervisor of liquor control his application for a review within fifteen days after notice of such decision shall have been mailed to said party” (our italics), and proceeds to set out an appeal procedure, the whole section contemplates a contested case or proceeding of some description. It is plainly inapplicable to any advance declaration of the validity of the rule under examination here, or its applicability to plaintiffs’ promotional games. Plaintiffs could have a determination of those questions under § 311.700 only by continuing with the suspect promotional games at the risk of the temporary or indefinite loss of their licenses.

The rule under attack by plaintiffs was filed February 8, 1973, effective February 18, 1973. If the adoption of the rule could be said to be a “proceedings”, as used in § 311.700, then the plaintiffs, in order to appeal therefrom, must have been a “party” to the proceedings and must have been “aggrieved” by the rule. If the plaintiffs were in existence at the time of the rules adoption, it is unlikely that they then contemplated the sponsorship of the games which we have under examination. They could not have been “aggrieved” by the adoption of the rule. If they were not “parties” they would not be notified of the rule. In short, the procedure of § 311.700 is simply not suited to the advance settlement of the controversy between the plaintiffs and the defendant Supervisor.

We hold, therefore, that § 311.700 provided no statutory procedure for the advance determination of the validity of the rules promulgated by the Supervisor of Liquor Control, or the threatened application thereof, and therefore the declaratory judgment provision of Supreme Court Rule 87.-02(c), involving in this case only questions of law upon admitted facts, is an available remedy to plaintiffs. The trial court had jurisdiction of the case and so does this court.

The conclusion we have reached is not inconsistent with such cases as our own recent case of Jefferson Lines, Inc. v. Missouri Public Service Commission, 581 S.W.2d 124 (Mo.App.1979), or with Union Electric Company v. Clark, 511 S.W.2d 822 (Mo.1974), both cases involving Public Service Commission rules, wherein the courts noted that § 386.510, RSMo 1978, in each case provided a procedure for determining the validity of the rules in question without first having violated them and having incurred the risk of the imposition of sanctions therefor.

Neither does our present holding conflict with American Hog Company v. County of Clinton, supra, for that was a declaratory judgment case in which the plaintiff had gotten an unfavorable result in a contested case before, the county zoning board. Instead of following the statutory appeal procedure provided in such cases, the plaintiff initiated the declaratory judgment action which was before this court. The court remanded the case with directions to dismiss plaintiff’s petition on the ground that the statutory appeal route was exclusive and that the court had no jurisdiction to entertain the declaratory judgment action. The court pointed out: “With regard to § 536.050, declaratory judgments are authorized thereunder respecting the validity of an administrative ‘rule’ or a threatened application thereof. The term ‘rule’ is specially defined in § 536.010(4) [V.A.M.S. (2)] as including every regulation ‘of general application and future effect’. The definition in that subsection (4) [V.A.M.S. (2)] stands in contrast to the definition of ‘contested case’ in subsection (2) [V.A.M.S. subsection (3)] which is defined as ‘a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing; * * * ’ These definitions are substantially identical to those set forth in Rule 100.01.” 495 S.W.2d at 126. This statement from Judge Wasserstrom’s opinion points up the distinction between that case and the present one. That was a “contested case”; ours deals with “the validity of an administrative ‘rule’ [and the] threatened application thereof”.

Gambling and consideration.

We now reach the substantive issues in the case.

The trial court, as we noted at the outset, found as a matter of law that plaintiffs’ games did not violate Rule 15(k), quoted earlier. This finding the Supervisor challenges on this appeal, a challenge which must be sustained.

Respondents, defending the judgment of the trial court, say that their games do not constitute the gambling condemned by this regulation because the player does not stand to lose “money, trade checks, prizes, merchandise or property”, or similar consideration. They say that by the rule of ejus-dem generis, the phrase “any other consideration whatsoever” as used in this regulation, is limited to consideration of the character of the items specifically named. They say that the consideration flowing from the player to the sponsoring store does not constitute that kind of consideration, so as. to bring the game within this regulation. And, respondents add, although a player does stand to win money (an included kind of consideration), since he does not stand to lose the kind of consideration required by this regulation, then the regulation is not violated. So the argument proceeds.

We cannot agree with the respondents that the rule should be so interpreted, and we find that the games were in violation of the Supervisor’s Liquor Regulation 15(k).

That the scheme described in the evidence constitutes “gambling” in the classical sense would be hard to gainsay. It includes the" elements of prize, chance and consideration. Mobil Oil Corp. v. Danforth, 455 S.W.2d 505, 507 (Mo. banc 1970); State v. McEwan, 343 Mo. 213, 120 S.W.2d 1098 (1938). That the scheme calls for a consideration, in the classical sense, flowing from the player to the sponsoring store is rather plain. Mobil Oil Corp. v. Danforth, supra; State v. McEwan, supra; State v. Fox Kansas Theatre Co., 144 Kan. 687, 62 P.2d 929, 934 (1936). The store desires members of the public to come upon their premises where their merchandise is offered for sale. Their advertisements invite the public to participate. So they sponsor and advertise the promotional games. The total direct and indirect cost of sponsorship is not shown by the record before us, but one of the advertisements of an I.G.A. store, associated with the plaintiff Wetterau, appearing in a Kirksville newspaper for Wednesday, June 15, 1977, says that the cash prizes total $250,000. Apparently there were 151 I.G.A. stores located in Missouri and southeastern Iowa who were sponsoring the Gamerama game at that time. A June 5 ad in the Kansas City Star advertised $100,000 in cash prizes to be won in Gamerama sponsored by Fleming related stores in central and western Missouri and in Johnson County, Kansas. These figures do not include, of course, the cost of advertising and the cost of game materials, royalties and other expenses connected with the program. Witnesses for the three original plaintiffs, who had been running the games from four to five weeks, estimated total expenses, to that time, of $325,000. The games would ordinarily run about 13 weeks.

Members of the public responded in the desired manner. They came to the plaintiffs’ stores in larger numbers. They increased their purchases, swelling the plaintiffs’ sales volumes. Stipulated evidence shows, with respect to intervenor Gerbes Super Markets, Inc., which sponsored a game called “Instant Money”: “For the period of June 13 to June 19, 1977, Interve-nor’s gross sales were 0.48% less than the comparable week in 1976. Four weeks later, for the period July 11 to July 18, 1977, Intervenor’s gross sales had deteriorated to a point where they were 11.28% less than the comparable week in 1976. During the period beginning June 6 and ending August 14, 1977, Intervenor experienced a customer count decrease of 7.92% and a gross sales decrease of 6.80% under the comparable period in 1976. Conversely, and reflecting commencement of its promotion effective August 17,1977, Intervenor experienced an increase in its customer count from August 15 to October 23, 1977, of 16.57% and a corresponding increase in gross revenue of 11.61% over the comparable period in 1976. Intervenor’s promotion has resulted in an increase in gross revenues from August 15 through October 23, 1977, of 11.61% over the comparable period in 1976 and an increase in Intervenor’s customer count of 12.48% over the same comparable period. As a measure of the effectiveness of Inter-venor’s promotion the customer count for the ten week period from August 15 through October 23, 1977, was 16.57% over the customer count for the ten week period from June 6 to August 14, 1977, and the corresponding increase in gross revenues was 13.55%.”

Plaintiffs A & P, Fleming Foods, and Wetterau experienced a 16% increase in customer count during the games, and a 9% increase in gross revenues.

The players, on the other hand, performed their part of the bargain by going through the prescribed procedure for securing game cards and game checks, matching the markers with the spaces on the game cards. If they qualified for a prize, they would go through the prescribed procedure to claim the prize. They would allow their names and addresses to be posted in participating stores. More than 99% of them visited the stores to get their game pieces, and only 1% of them got them by mail or phone.

Under McEwan, Mobil Oil and Fox Kansas Theatre Co., supra, there was certainly sufficient consideration flowing from player to store to constitute the games a species of “gambling”, as that term is used in Regulation 15(k).

The rule of ejusdem generis, upon which respondents rely for their interpretation of this regulation, and which was applied by the trial court to give the term “consideration” a much narrowed meaning, is simply a tool for the ascertainment of legislative intent. “Where general words follow specific words in an enumeration describing the legal subject, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” 2A Sutherland, Statutory Construction, § 47.17 (4th ed. 1973). The tail does not wag the dog, however, and the rule yields to indication of the contrary intent or purport. We find in the Supervisor’s Regulation 15(k) an intent that the “consideration” be given its broader meaning, not limited by the enumerated types of consideration which precede it. We find this intent from the emphasis upon inclusiveness in the language employed — “any other consideration whatsoever” (emphasis supplied). City of St. Louis v. Bowler, 94 Mo. 630, 7 S.W. 434, 435 (1888); State v. Brackman, 260 S.W.2d 800, 813 (Mo.App.1953). The idea of inclusiveness is sounded in the regulation language which takes in “gambling ... of any kind or character whatsoever”. We hold that the regulation is sufficiently broad to cover the kind of consideration present here, and therefore broad enough to cover plaintiffs’ games.

Supervisor’s authority to promulgate Regulation 15(k).

The respondents argue that the Supervisor of Liquor Control does not have the authority to promulgate such a regulation as is now under consideration, if the regulation be interpreted to cover such games as these, where the “consideration” is something other than “money or its equivalent”. They argue that the Supervisor of Liquor Control is limited by the “legislative policy” as expressed in § 563.430, RSMo 1969, and that the Supervisor’s regulation with respect to gambling on licensed premises could not be any broader than that statute. § 563.430 which defines and punishes the establishment of a lottery, provides by amendment added in 1963 that “this section shall apply only where there is consideration in the form of money or its equivalent, paid to or received by the person awarding the prize.”

We note first, however, that in the only case which has considered the effect of the cited language, Mobil Oil Corporation v. Danforth, supra, it was held that the General Assembly did not intend to abrogate the holding of State v. McEwan, supra, which had held the element of consideration was present in a “bank night” scheme at a theater, even though a person was not required to purchase an admission ticket but could simply walk in and register in order to be eligible for a prize. To hold otherwise, the court said, would ascribe to the General Assembly an intention to assume the power, belonging exclusively to the judiciary, to define lotteries under Article III, Section 39(9), of the Constitution of Missouri (1945), which read at that time as follows: “Section 39, the General Assembly shall not have power: * * * (9) to authorize lotteries or gift enterprises for any purpose, and shall enact laws to prohibit the sale of lottery or gift enterprise tickets, or tickets in any scheme in the nature of a lottery.”

In Mobil Oil a scheme in its main features much like those now under consideration was held to be in violation of the above § 563.430.

Regardless of the meaning and effect of § 563.430, though, and whatever the legislative policy may be with respect to gambling as a crime, what we are here concerned with is alcoholic beverage control. Our inquiry is whether the Supervisor’s regulation is consistent with the legislative purposes expressed in the Liquor Control Law, § 311.010, et seq., RSMo 1978, and whether it is reasonably calculated to serve a legitimate purpose expressed by the Law. We have concluded that question must be answered in the affirmative, for reasons hereafter discussed.

The power of the Supervisor to make the regulation now under consideration must be found, if at all, in § 311.660, which provides: “The supervisor of liquor control shall have the authority ... to make the following regulations, without, limiting the generality of provisions empowering the supervisor of liquor control as in this chapter set forth as to the following matters, acts or things: . . . (6) establish rules and regulations for the conduct of the business carried on by each specific licensee under the license, and such rules and regulations if not obeyed by every licensee shall be grounds for the revocation or suspension of the license; . . . (10) to make such other rules and regulations as are necessary and feasible for carrying out the provisions of this chapter, as are not inconsistent with [the] law.”

In considering the validity of the regulation as a valid exercise of the Supervisor’s authority, we remember the well-established rule that “rules and regulations are to be sustained unless unreasonable and plainly inconsistent with the Act, and they are not to be overruled except for weighty reasons . . . the burden is upon those challenging the rules to show that they bear no reasonable relationship to the legislative objective.” Brown-Forman Distillers Corporation v. Stewart, 520 S.W.2d 1, 11 (Mo. banc 1975).

In Milgram Food Stores, Inc. v. Ketchum, 384 S.W.2d 510, 513 (Mo.1964), in which a regulation was upheld which prohibited a retail liquor licensee’s advertising any premium as an inducement to purchase intoxicating liquor, the court said that the limitation of subsection (10) of § 311.660 that the Supervisor’s rules and regulations be “ ‘necessary, reasonable and consistent with this law’ ” applies not only to subsection (10) but also to the other nine subsections including subsection (6). The Supervisor may make rules and regulations “ ‘[as are necessary and feasible (reasonable) for carrying out the provisions of this chapter, as are not inconsistent with this law] . . .

In Brown-Forman Distillers Corporation v. Stewart, supra, at 10, it is said: “Appellants further challenge to Regulation 4(g) is also unavailing. The broad yet valid authority conferred upon the Supervisor by subsections (6) and (10) of § 311.660 is limited only in the respect that regulations be necessary, reasonable, and not inconsistent with the Liquor Control Law. Milgram Food Stores, Inc. v. Ketchum, supra.

In Milgram Food Stores, the court had under scrutiny a regulation which prohibited in any advertisement of intoxicating liquor “ ‘any statement offering any coupon, premium, prize or rebate as an inducement to purchase intoxicating liquor’ ”. 384 S.W.2d at 511. The license of a liquor licensee was suspended for violation of that regulation, and the licensee challenged the authority of the Supervisor to make such regulation. Judge Hyde pointed out § 311.-350, RSMo 1969, making window displays of intoxicating liquor unlawful, and § 311.360, prohibiting misrepresentation of brands sold or offer of substitution of liquor of one manufacturer for that of another, “does show some indication of policy to limit inducing sales by advertising, especially the prohibition of window displays. Furthermore, Regulation 15(f)(5) concerns not only advertising but stimulating sales by offers of a prize or premium in an advertisement .It has been held proper to regulate advertising of liquor to discourage artificial stimulation of liquor consumption . ” (Citations omitted.) Then, quoting from Commonwealth v. Anheuser Busch, Inc., 181 Va. 678, 26 S.E.2d 94, Judge Hyde said: “ ‘The police powers of the state with reference to the control of intoxicating liquors is to be distinguished from its powers to regulate traffic in other things. It would be different if the business sought to be followed was one of the ordinary pursuits in which all persons are enabled to engage ... To unduly encourage, by display advertisements throughout the state, the use of alcoholic stimulants, or to stimulate that use, is highly undesirable.’ ” 384 S.W.2d at 513. See also Zinn v. City of Steelville, 351 Mo. 413, 173 S.W.2d 398 (banc 1943). Annot., “Construction and Application of Statutes or Ordinances Respecting Amusements on Premises Licensed for Sale of Intoxicating Liquor”, 4 A.L.R.2d 1216 (1949).

In addition to a discernible legislative purpose to prevent what the Virginia court called the “artificial stimulation of [alcoholic] beverages consumption”, we find also in the Liquor Control Law a legislative purpose to separate the business of selling alcoholic beverages from various species of unlawful activity. Note § 311.680, which provides for suspension or revocation of the liquor license where the dealer “has not at all times kept an orderly place or house”— and § 311.710, which provides for revocation or suspension of retail liquor licenses by the circuit court for “permitting on the licensed premises any disorderly conduct, breach of the peace, or any lewd, immoral or improper entertainment, conduct or practices”. The games carried on by the plaintiffs were felonies before August 8, 1978, during the time with which we are concerned in this case. § 563.430, supra.

Conclusion.

We have held that the games described in evidence, distributed by plaintiffs Glendin-ning Companies and Dansico, and sponsored by plaintiffs A & P, Fleming Foods and Wetterau, and by intervener Gerbes, were in violation of Regulation 15(k) of the Supervisor of Liquor Control; that the regulation was within the statutory authority of the Supervisor to promulgate, and to enforce, and continues to be valid and enforceable notwithstanding § 572.100, RSMo 1978.

The judgment of the trial court is reversed and the cause is remanded for the entry of a judgment consistent with this opinion.

All concur.

      . The court is not bound by any stipulation of law. Midella Enterprises v. Mo. State Hwy. Com'n, 570 S.W.2d 298, 301 (Mo.App.1978).

      . We assume but do not decide that the plaintiffs’ games are not unlawful since the adoption of the August 8, 1978, Amendment to Article III, § 39, Mo.Constitution of 1945.

      .This is not to say, of course, that the legislature could not, if it chose to do so, remove from the Supervisor this or any other area of regulation. The point is, it has not done so by the general preemption statute upon which the re- ■ spondent relies.

      . Repealed effective August 13, 1978.

      . The first hearing in the case, July 15, 1977, was on a preliminary injunction ancillary to the declaratory judgment action, upon which the trial court enjoined the Supervisor from the enforcement of Regulation 15(k). Much of the evidence in this case was given, on that hearing. The temporary injunction was the subject of an absolute writ of prohibition issued by this court. State ex rel. Letz v. Riley, 559 S.W.2d 631 (Mo.App.1977). The main case was heard on October 28, 1977, and the parties stipulated that the evidence on the earlier hearing could be considered in the main case. By the time of the second hearing the plaintiffs’ stores had been cited by the Supervisor for violation of Regulation 15(k), but no hearing had been held thereon.

      . Supreme Court Rule 87.02(c), under which the present case is brought, is drawn verbatim from § 536.050, RSMo. 1978, a part of our Administrative Procedure and Review Act.


source: Caselaw Access Project

author: CLARK, Judge.

license: Public Domain

text:
    Lou Jean BLOOM, Plaintiff-Respondent, v. CITY OF INDEPENDENCE, Ray A. Heady, Mitzi A. Overman, E. Lee Comer, Jr., Charles E. Cornell, Dr. Ray Williamson, Dr. Duane Holder, Bill Alumbaugh, Bruce Lowrey, Defendants-Appellants.
    No. KCD 30410.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 3, 1979.
    James S. Cottingham, City Counselor, by John M. Gibson, Asst. City Counselor, Independence, for defendants-appellants.
    Gene P. Graham, Independence, for plaintiff-respondent.
    Before SHANGLER, P. J., and SWOF-FORD and CLARK, JJ.
   CLARK, Judge.

Lou Jean Bloom, as plaintiff below, sought judicial review pursuant to Section 536.100, et seq. RSMo 1969 of the decision of the council of the City of Independence denying her a home occupation permit to operate a beauty shop. Some nineteen months after the filing of plaintiff’s petition, no record of proceedings before the council, transcript or agreed statement of the case having been presented, defendants moved to dismiss the cause for failure of plaintiff to comply with Rule 100.06. Plaintiff thereupon moved for an order allowing the filing of the record out of time. The circuit court overruled both motions, vacated the order of the city council denying plaintiff’s home occupation permit and remanded plaintiff’s application to the council for rehearing. Defendants appeal.

From the record made at the hearing on the respective motions of the parties and exhibits received consisting of answers to admissions requests and interrogatories, the applicable facts may be briefly extracted.

Plaintiff had made an application to defendant city’s Planning Commission for a home occupation permit. After hearing, the application was recommended for approval. By reason of protests filed by adjacent property owners, however, commission action was not conclusive and the case was advanced to the city council for final action as provided by ordinance. At a hearing subsequently conducted by the council, the application was disapproved. Although the customary practice at such council hearings is to preserve the record by use of a tape recorder, at the hearing on plaintiff’s application the recorder malfunctioned and no verbatim record was made or preserved.

Defendants contend that the circuit court erred in failing to sustain defendants’ motion to dismiss and in remanding the case for rehearing for the reason that plaintiff must be deemed to have forfeited her cause of action for review by neglecting to file the transcript record. The order overruling plaintiff’s motion for leave to prepare and file the transcript out of time is not a subject of this appeal, plaintiff apparently being content with the opportunity again to present her application to the city council.

Initially to be considered is the question of whether the disposition of the case by the circuit court constitutes a final judgment subject to appeal and, hence, whether jurisdiction lies. In apparent recognition of this latent problem, the entry by the circuit court included the following: “The judgment and order herein is final for purposes of appeal.” Although not expressly stated, it is assumed that such designation was intended to be under the authority of Section 512.020, RSMo 1969 and Rule 81.06.

Generally, a judgment is not final and appealable until the circuit court has exhausted its jurisdiction and the issues decided are beyond its control. Staab v. Thoreson, 579 S.W.2d 414, 417 (Mo.App.1979). The order overruling defendants’ motion to dismiss is therefore not an ap-pealable order and is not subject to review except as jurisdiction may otherwise be acquired by reason of final judgment having subsequently or contemporaneously been entered.

In view of the recognized fact that failure of the city’s tape recorder had rendered production of a verbatim record impossible, and there being no indication that the parties by agreement and stipulation could have authored a statement of the case, the circuit court was incapable of proceeding with review under Rule 100.07. Under these circumstances, the circuit court elected, sua sponte, to remand the case for rehearing, at which time a record was directed to be made and preserved for potential review. Such order remanding the case for rehearing was a final judgment and affords a vehicle to review the issue of disposition of defendants’ motion to dismiss. Appellate jurisdiction therefore lies in this case by the nature of the judgment and not by the circuit court’s designation of finality which is regarded as surplusage.

The essence of defendants’ contention on this appeal is that Rule 100.06(a) requires the filing of the transcript record within thirty days and that a major breach of the time limit, here nineteen months, obligates the court to order dismissal of the cause. Somewhat differently phrased, it is defendants’ position that the court’s discretionary authority with respect to time limits is abrogated where delay is extreme or flagrant.

Rule 100.06(d) places upon the party seeking judicial review of a decision made by an administrative officer or body the responsibility for causing the record to be filed. Of course, the nature and content of the record depends on the type of administrative agency which considered the case, the character of the proceedings before the agency and the aspects of the case on which judicial review is to focus. In the subject case, plaintiff claimed to be aggrieved by the decision of the city council and by conduct of the hearing which preceded the decision. The record here would therefore of necessity include the council proceedings. As was earlier shown, mechanical failure made that record unavailable.

Failure of a party to file the record within thirty days under Rule 100.06 does not peremptorily extinguish the right to judicial review for the reason that the court is, by Rule 44.01(b) accorded the discretionary authority to grant relief from time limits in proper circumstances. Except for those acts specifically excluded and not subject to enlargement of time, the court may obviate the penalty of elapsed time where, after notice and hearing, the omission is found to be the result of excusable neglect. Such is a discretionary exercise, whether relief be granted or denied, and is reviewable for abuse. Crystal Tire Company v. Home Service Oil Company, 465 S.W.2d 531, 533 (Mo.1971).

Under the facts of this case, it is apparent that an order extending plaintiff’s time to file the record would have been of little value. While defendants suggest that plaintiff could have obtained from the city clerk the official minutes of the council meeting and thus have provided the record, the content or extent of such minutes is not described and such are not represented to be the equivalent of a verbatim record. Regardless of the content of the clerk’s minutes, however, the circuit court by its order returning the case for rehearing concluded by implication that such minutes would be inadequate and in its order directed that the evidence on rehearing be preserved for review. We cannot and do not find that the circuit court’s order was an abuse of its discretion, particularly under the circumstances here where the equipment which failed was a device customarily provided by defendants for the express purpose of subsequent record transcription.

The cases cited by defendants in which petitions for review were dismissed for failure to file the record timely are distinguishable. In Gore v. Wochner, 558 S.W.2d 333 (Mo.App.1977), plaintiffs obtained the transcript of a hearing before the St. Louis Civil Service Commission but did not present a motion to authorize late filing until 301 days after it was due. The only excuse offered was a change in attorneys and the opinion found that the circuit court had not abused its discretion in dismissing the case. In State ex rel. Euge v. City of St. Louis, 472 S.W.2d 666 (Mo.App.1971), the cause was dismissed when, after one extension of time, with no transcript produced, the plaintiff sought further time on the basis of fatuous grounds. Dismissal there was affirmed. In neither case was production of the record delayed or inhibited as here by external factors beyond the plaintiff’s control.

Defendants additionally urge that the circuit court improperly concluded that such record as was available, absent the verbatim transcript, was incomplete and that the remand for rehearing was therefore faulty. Such argument is premised on defendants’ assessment of the adequacy of what would constitute a record had the city clerk’s minutes been provided and supplemented by written stipulation under Rule 100.06(a).

Apart from the absence of speculation as to the content of the clerk’s minutes and the concurrent lack of independent opportunity to evaluate their worth as a sufficient record upon which to review plaintiff’s claims, the circuit court concluded that the case required and plaintiff was entitled to have a verbatim transcript. It is true that the lack of any detail as to what would have been contained in a record from the clerk’s minutes is attributable to plaintiff’s failure to request that the record be furnished. In plaintiff’s view of the case, however, such record would not have been adequate and the verbatim transcript being unavailable, plaintiff cannot at this point in the case be denied relief because of failure to produce an inadequate record for the purpose of confirming its inadequacy. The facts presented to the circuit court were sufficient to persuade that court of the necessity for a verbatim record and such decision has not been shown here to have been unfounded.

Where the absence of a record made before the administrative body prevents meaningful judicial review, the circuit court has the authority to remand the case for rehearing of the evidence and its preservation for review. State ex rel. State Highway Commission v. Weinstein, 322 S.W.2d 778 (Mo. banc 1959); In re Village of Lone Jack, 419 S.W.2d 87 (Mo. banc 1967). The order of the circuit court in this case was in accordance with these decisions and was, in fact, the only appropriate remedy to provide plaintiff the judicial review sought.

The judgment is affirmed.

All concur.


author: MANFORD, Judge.

text:
    STATE of Missouri, Respondent, v. Larry J. MERRITT, Appellant.
    No. 30419.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 3, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      Clifford A. Cohen, Public Defender, Gary L. Gardner, Kevin R. Locke, Asst. Public Defenders, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Earl W. Brown III, Spec. Asst. Atty. Gen., Kansas City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

This direct appeal follows the jury conviction for robbery in the first degree, armed criminal action and assault with intent to kill without malice, along with the overruling of appellant’s motion for a new trial. Sentence was affixed by the trial court at 20 years for robbery, 5 years for armed criminal action and 5 years for assault. The sentence for robbery and armed criminal action is to run consecutively and the sentence for assault is to run concurrently with the robbery sentence, the total of these sentences being 25 years.

Five points are alleged as error. The first alleges the trial court erred in overruling appellant’s motion to dismiss Count II of the amended information, which alleged armed criminal action because said count placed appellant in double jeopardy by subjecting him to multiple punishments for the same offense in that the proof required under Count II and Count I is identical.

The second alleged error is combined with point three in that both points challenge the admission of expert testimony by introduction of that testimony by and through written documentation. Appellant contends that the qualifications of the expert were not established and that he was denied the right of witness confrontation and cross-examination.

Appellant’s point four alleges error upon the trial court’s refusal to give to the jury a cautionary instruction following the prosecutor’s calling appellant a “turkey”. Appellant claims such remark was made to excite the passion of the jury and to raise prejudice against him.

The final point raised alleges error upon the trial court’s failure to dismiss Count III of the amended information because the trial court lacked jurisdiction over appellant in that Count III alleges some person other than appellant committed the offense charged under Count III.

This appellant was charged in three counts under an amended information in lieu of indictment. The three charges were: I-Robbery, First Degree, II-Armed Criminal Action and Ill-Assault with Intent to Kill, With Pistol, With Malice. The information also included a second offender allegation.

The charge of robbery was brought under § 560.120, RSMo 1969, which reads as follows:

“560.120. Robbery in first degree. Every person who shall be convicted of felo-niously taking the property of another from his person, or in his presence, and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person; or who shall be convicted of feloniously taking the property of another from the person of his wife, servant, clerk or agent, in charge thereof, and against the will of such wife, servant, clerk or agent by violence to the person of such wife, servant, clerk or agent, or by putting him or her in fear of some immediate injury to his or her person, shall be adjudged guilty of robbery in the first degree.”

The charge of armed criminal action was brought under § 559.225, RSMo Supp.1976:

“559.225. Armed criminal action — penalty — exceptions.—1. Except as provided in subsection 4 of this section, any person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous or deadly weapon is also guilty of the crime of armed criminal action and, upon conviction, shall be punished by imprisonment by the division of corrections for a term of not less than three years. The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with or through the use, assistance, or aid of a dangerous or deadly weapon. No person convicted under this subsection shall be eligible for parole, probation, conditional release or suspended imposition or execution of sentence for a period of three calendar years.
2. Any person convicted of a second offense of armed criminal action shall be punished by imprisonment by the division of corrections for a term of not less than five years. The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous or deadly weapon. No person convicted under this subsection shall be eligible for parole, probation, conditional release or suspended imposition or execution of sentence for a period of five calendar years.
3. Any person convicted of a third or subsequent offense of armed criminal action shall be punished by imprisonment by the division of corrections for a term of not less than ten years. The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous or deadly weapon. No person convicted under this subsection shall be eligible for parole, probation, conditional release or suspended imposition or execution of sentence for a period of ten calendar years.
4. The provisions of this section shall not apply to the felonies defined in sections 559.005, 564.590, 564.610, 564.620, 564.630 and 564.640, RSMo.”

The felony charge of assault, count three, was brought under § 559.180, RSMo 1969. This section states:

“559.180. Assault with intent to kill. Every person who shall, on purpose and of malice aforethought, shoot at or stab another, or assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to kill, maim, ravish or rob such person, or in the attempt to commit any burglary or other felony, or in resisting the execution of legal process, shall be punished by imprisonment in the penitentiary not less than two years.”

The record reveals the following pertinent facts. On November 30, 1977, just before 7:00 p. m., four men entered Cosenti-no’s Market. Three of the men wore ski masks, one being brown and two navy blue in color. The fourth man was not masked. Upon entering, one of the men, wearing a blue ski mask, grabbed a store employee, Sam Giangreco, around the neck from behind. In addition to being masked, this man held a revolver with a taped handle. In this position, the employee was forced toward an office or booth area used for cashing checks. Upon arrival at this point in the store, the employee and the masked robber were joined by a second masked robber who then held a revolver pointed at the employee. An unsuccessful attempt was made to gain entry to the office or booth, although the robbers tried to kick the door open.

While the above events were unfolding, a third robber approached one of the cashier or check-out stands’ where employee Paula Wiggans was located. He demanded she open the cash register and place the money in a pillow case. She complied, but apparently not quickly enough and the robber reached into the register and removed some bills. (A fingerprint was “lifted” from the register by law enforcement officers, but it was found not to have matched any print of any employee or the appellant.) In addition to the events already in progress, another robber simultaneously moved to a second cashier or check-out stand and demanded money. The four robbers then departed. Employee Sam Giangreco gave chase, but was unable to catch up to the four and did not observe them enter any type of automobile.

At this point, a customer, Jack Spencer, was arriving at the market. He observed four black males running directly in front of his automobile. This witness observed the four enter a light colored Cadillac, which he thought to be either a 1968 or 1969 model. This customer followed the Cadillac and as he followed, he observed the last portion of the license number. The license was a Missouri plate, of which the last three digits were 569.

As the chase continued, shots were fired and the customer, Jack Spencer, received cuts to his face as a result of shattering glass from the windshield of his automobile. Mr. Spencer returned to the market. He wrote down the three digits on paper, but testified he could not recall what happened to the paper and did not possess it at the time of the trial. He reported to a uniformed police officer his information and the officer then relayed information concerning the color, make and the three last digits of the license plate of the suspect vehicle.

Another police officer, upon hearing this information on his radio, took up position to look for the suspect vehicle. Shortly, the suspect vehicle passed within view of this patrol unit and the unit gave chase. During the chase, the suspect vehicle was wrecked, coming to an upright position after turning over. The police officer in pursuit saw two persons run from the suspect vehicle.

A search of the suspect vehicle and the immediate surrounding area revealed cash money, a yellow and brown striped pillow case, a .38 caliber revolver with tape on the handle, a H & R .32 caliber revolver, a R & G .38 caliber revolver, two navy blue ski masks, a brown ski mask and a wallet containing appellant’s identification card, social security card and his driver’s license.

The evidence, by way of a title application, showed the suspect vehicle to be owned by appellant. In addition, the evidence revealed that Missouri License Plate X1T-569 had been issued to the suspect vehicle, identified as a 1968 Cadillac.

The evidence also revealed that some hair fiber had been removed from the ski masks. A comparative hair sample (referred to as the hair standard) was secured from appellant’s head. The scientific tests on comparing the hair samples were made by a forensic chemist named Ed Hovey. His tests were supervised by one Gary Howell. At the time of trial, Ed Hovey was a resident of Connecticut and did not appear as a witness. At ■ the time of the trial, Gary Howell, who was qualified as an expert, was Chief Forensic Chemist of the Regional Crime Lab.

Gary Howell testified as to the comparison tests made by Ed Hovey and that he supervised the tests. He also testified, over objection, that in his opinion the hair recovered from one of the ski masks matched the hair standards of appellant. Over further objection, the report of chemist, Ed Hovey, was introduced into evidence pursuant to § 490.660, RSMo 1969, commonly referred to as “The Uniform Business Records as Evidence Law”. Witness Howell testified the report of chemist Hovey had been at all times under his care and custody and the entries on the report were made when the tests were performed.

Upon cross-examination, witness Howell testified he could not conclusively state the hair removed from the ski mask came from appellant’s head but that in his opinion, the standards as between the two samples contained sufficient comparable features to lead him to conclude that the two hair samples had matching characteristics. He testified there is no way to assess any statistical probability, upon the matching of hair samples, to provide conclusive determination that a particular hair strand matches a particular hair from a particular individual; but what is determined is a series of tests to match basic specific characteristics between two samples. In his expert opinion, the sample hair from the ski mask and the sample hair from appellant revealed, upon testing, to have the requisite matching characteristics.

The defense was alibi. Appellant did not testify, but called three witnesses on his behalf. These witnesses were Janice Murphy, appellant’s girlfriend, Joyce Lockett, a friend of Janice Murphy and Lamont Lock-ett, the teenage brother of Joyce Lockett.

In summary, the evidence for the defense was that Janice Murphy and Joyce Lockett, both of whom were employed by Hallmark Cards, left their employment around 4:00 to 4:30 p. m. on November 30, 1977 and were both picked up at their place of employment by appellant in his Cadillac.

These three proceeded to the apartment residence of Joyce Lockett and listened to music, watched T.V. and conducted a general conversation through the entire evening. The testimony asserted the Cadillac was parked at the rear side of the apartment building, but in plain view from the window of the Lockett apartment.

Around 7:00 p. m., Lamont Lockett, teenage brother of Joyce Lockett, arrived at his sister’s apartment. He testified that although he was familiar with the Cadillac automobile, he did not observe it at the time in question. Lamont Lockett did not reside with his sister, but came by her apartment en route to a basketball game to be held in the neighborhood. He testified he saw appellant at the Lockett apartment and then departed for the game.

Witness Joyce Lockett and Janice Murphy testified they observed appellant’s Cadillac from the apartment window at various times during the course of the evening. Joyce Lockett eventually went to bed. Janice Murphy testified that around 11:00 p. m. she and appellant observed the Cadillac missing from where it was parked and appellant called the police.

By way of rebuttal evidence, it was established at 11:34 p. m. a caller identifying himself as Larry Merritt reported the Cadillac stolen.

Errors alleged are taken up in the order of presentment, except that points two and three are disposed of conjunctively, since they interrelate to the same evidence and parcel of the trial.

Point one is directly and squarely disposed of under the rule in State v. Treadway, 558 S.W.2d 646 (Mo.banc 1977), cert. denied, 434 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1978). Missouri cases have ruled against defendants on the issue raised here by appellant’s point one. State v. Hutchinson, 582 S.W.2d 350 (Mo.App.1979); State v. Carter, 577 S.W.2d 109 (Mo.App.1978). While appellant cites Blockburger v. U. S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Jeffers v. U. S., 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977); State v. Toombs, 326 Mo. 981, 34 S.W.2d 61 (1930) and Cain v. U. S., 19 F.2d 472 (8th Cir. 1927), these cases are not controlling or persuasive as they relate to appellant’s first point of alleged error.

State v. Treadway, supra, and a more recent decision, State v. Valentine, 584 S.W.2d 92 (Mo.banc 1979) declared the law in Missouri to be that the “separate offense rule” and not the “same transaction rule” is to be applied in determination of the question of double jeopardy.

Appellant argues that this court should reject the majority opinion, and hence the prevailing rule of law as determined by our State Supreme Court, in State v. Treadway, supra and State v. Valentine, supra and conclude in opposition to that rule of law, that since the evidence for conviction for the offense of robbery, first degree, and conviction for armed criminal action was the same, appellant was, in fact, placed in double jeopardy in violation of the 5th and 14th Amendments of the federal constitution.

This court is not persuaded by appellant’s argument. It is, of course, not within the authority of this court to override the decisions of the State Supreme Court and there is nothing within the evidence of this case to sufficiently distinguish this case from State v. Treadway, supra and State v. Valentine, supra to avoid the application of the rule in those two cases. In addition, the rules laid down in State v. Treadway, supra and State v. Valentine, supra, are proper in keeping with the spirit of public policy which gave rise to the enactment of the statutory criminal offense of armed criminal action.

Point one is ruled against appellant.

Points two and three are taken up together. Appellant contends the laboratory report of Ed Hovey should not have been admitted into evidence because it was not established that Ed Hovey was an expert and in his not being present to testify, this denied appellant the right to confront this witness and denied him the opportunity to cross-examine this witness.

The evidence herein established that Ed Hovey was a forensic chemist. When this was testified to by witness Howell, no objection- was entered. In addition, witness Howell testified that he actively supervised the tests made by Hovey regarding the comparison of hair samples from appellant’s head and one of the ski masks.

The report of Hovey was admitted by the trial court under § 490.660, RSMo 1969, commonly referred to as the Uniform Business Records as Evidence Law. There was no dispute in the evidence that witness Howell was the proper person (as custodian of the laboratory report), nor was there any dispute that the report was part of the records of the crime laboratory. No question arose relative to the date of entry and the results and other notations in the report. The only contention by appellant is that no proper foundation was laid to establish Ed Hovey was a qualified expert and thus capable of conducting such tests and compiling a report of his findings.

There is no question under the law that opinions of experts contained in a laboratory report prepared by that expert are admissible without the presence of and testimony of the expert himself. Appellant concedes that point under State v. Taylor, 486 S.W.2d 239 (Mo.1972).

Appellant cites for the court the case of State v. Rhone, 555 S.W.2d 839 (Mo.banc 1977). In this case, the majority opinion of the State Supreme Court concluded, by adopting the following view on the subject, at 841, “ ‘that entries in the form of opinions are not admissible if the declarant was not an expert making a statement concerning a matter within his expertise and as to which he would be competent to express an opinion if testifying in person.’ ” This case went on to declare, at 841, “It must be shown that a witness has ‘sufficient experience and acquaintance with the phenomena involved to testify as an expert.’ Hyman v. Great Atlantic & Pacific Tea Co., 359 Mo. 1097, 1101, 225 S.W.2d 734, 736 (1949). However, a ‘witness may be competent to testify as an expert though his knowledge touching the question at issue may have been gained by practical experience rather than by scientific study or research.’ Herman v. American Car & Foundry Co., 245 S.W. 387, 389 (Mo.App.1922). ‘The authorities generally agree that it would be impracticable to set any absolute standard as to the qualifications of an expert witness; and that of necessity the question must rest largely in the sound discretion of the trial court.’ State v. Rose, 249 S.W.2d 324, 332 (Mo.banc 1952).”

In State v. Rhone, supra, the custodian of certain police department records testified, and her testimony included recitation of a laboratory report of one Lloyd Hill, a former criminologist for the St. Louis Police Department. The custodial witness was asked a series of questions concerning the qualifications of Lloyd Hill and the particular procedures followed in tests made preparatory to Hill’s report.

The State Supreme Court upheld the admission of such evidence.

With that reference, review of the facts of this case relative to the point in question must be undertaken. The decisive factor is twofold, of course; that being whether under State v. Rhone, supra the facts herein are insufficient to have qualified Hovey under the rule, or in the alternative, whether the facts of this case distinguish this case from the rule in State v. Rhone, supra. The remaining question is, of course, that in light of the facts of this case, did the trial court abuse its discretion in the matter?

As has already been pointed out, when witness Howell first commenced his testimony, he identified Hovey as a former chief forensic chemist for the local crime laboratory. This statement went unchallenged. If this was the only fact on the record relative to this question, this court would be faced with deciding whether the trial court abused its discretion in permitting Hovey’s report to be admitted into evidence. The record, however, reveals not only that Hovey was the chief forensic chemist but that witness Howell assisted Hovey in the testing, reviewing the results of the tests, was aware of the contents of the report and how the report was compiled and approved the report of Hovey when it was completed.

Unlike the case of State v. Rhone, supra, where there was a mere custodian of records, the court herein was not faced with merely deciding whether a custodian could testify as to the expert qualifications of one whose report was offered as evidence. By contrast, the record herein reflects that Ho-vey was a chief forensic chemist and that Hovey and Howell worked together on the tests. The record reveals the step-by-step details followed by Hovey and Howell to arrive at the conclusions contained within Hovey’s report.

The record shows that witness Howell was also a chief forensic chemist and considerable detail is in the record to establish the qualifications for achieving such status.

The admission of Hovey’s report was permissible under the facts of this particular case as an exception to the hearsay rule pursuant to § 490.660, RSMo 1969, the Uniform Business Records as Evidence Law, and such admission was not, under the facts herein, an abuse of discretion by the trial judge.

Points two and three are ruled against appellant.

The fourth point raised by appellant involves the alleged characterization of appellant as a “turkey” in the closing argument by the prosecuting attorney.

Appellant alleges that such remark was made to “excite the passion of the jury and engender prejudice against appellant.”

As has been pointed out by appellant under State v. Stockbridge, 549 S.W.2d 648 (Mo.App.1977), the court has held, at 651, that “. . . the prosecutor occupies a quasi-judicial position and is, at once, charged with the duty to thoroughly and vigorously present the state’s evidence, on the one hand, and on the other hand, conduct these duties in such a manner as will afford the defendant a fair and impartial trial. He shares this latter responsibility with the trial court.” citing State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524, 526[1, 2] (banc 1947); State v. Allen, 363 Mo. 467, 251 S.W.2d 659, 662[4] (1952); State v. Selle, 367 S.W.2d 522, 530[22] (Mo.1963); State v. Heinrich, 492 S.W.2d 109, 114[8] (Mo.App.1973) and State v. Hicks, 535 S.W.2d 308, 311[2] (Mo.App.1976). The court, in State v. Stockbridge, supra, at 651, went further in pointing out, “As a natural concomitant of this rule, a prosecutor ‘should never be permitted to apply unbecoming names or epithets to the defendant, or refer to the defendant or his alleged accomplice as a criminal of any class or kind. * * * ’” citing State v. Taylor, 320 Mo. 417, 8 S.W.2d 29, 37[25] (1928). See also: State v. Leonard, 182 S.W.2d 548, 551[5] (Mo.1944); State v. Stroud, 362 Mo. 124, 240 S.W.2d 111, 113[9] (1951); State v. Harris, 351 S.W.2d 713, 715—716[1—4] (Mo.1961); and State v. Turnbull, 403 S.W.2d 570, 572-573[5] (Mo.1966). The court finally concluded (in State v. Stockbridge, supra, at 651) that in calling the defendant “a professional”, “a pro”, “a professional car thief” and as engaged in “stealing cars” that “The arguments of the prosecuting attorney in this case far exceeded propriety and the rules of restraint properly imposed upon him by reason of his quasi-judicial position . . . It is apparent that these arguments constituted inflammatory appeals to arouse the jurors to personal hostility toward the defendant as a hardened criminal.”

There is nothing but absolute soundness in the ruling contained in State v. Stock-bridge, supra, but the question remains as to whether the facts of the present case bring the present case within the rule in State v. Stockbridge, supra.

As was mentioned previously, one of the masked robbers reached into the cash register in the market. Police investigation revealed a fingerprint which was not matched to anyone, including the appellant. This evidence was referred to during the trial and the record clearly establishes the fingerprint could not be matched to appellant.

In the rebuttal portion of his closing argument, with reference to the fingerprint, the prosecutor made the following remarks,

“MR. WELCH (prosecutor): Furthermore, the fingerprint that Mr. Rogers is concerned about. I don’t know why he is so concerned about it frankly. I don’t know, as Paula Cosentino [formerly Paula Wiggans] doesn’t know, when you reach in and grab money out of a register, whether you leave a fingerprint or not. Apparently, somebody left a fingerprint, but you remember what they said? They didn’t match that fingerprint to anybody, Paula Cosentino, or anybody else. Heaven knows they tried, and heaven knows it didn’t match this turkey or I would have had it in here.”

This was the sum total of any characterization of appellant by the prosecutor. Appellant objected to the remark and the objection was overruled.

Appellant provides the court with the definition of the term “turkey” by reference to THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, which defines turkey as slang, meaning “a person regarded as continually inept; a misfit”. The state converges on this definition, urging the court to conclude the definition as applicable to appellant in light of the evidence that he is a person “regarded as continually inept; a misfit”.

While this court does not condone or encourage the use of any description of an accused, this court is not persuaded to conclude that such a passing remark inflamed this jury against this appellant so as to prejudice the jury against appellant. The facts of this case simply fail to bring this case under the sound rule of State v. Stock-bridge, supra.

Likewise, this court is not persuaded by the state’s argument that this characterization, by some stretch of legal imagination, might be made applicable to appellant in light of the charges and evidence of this case.

The simple fact is that the remark made herein should and does receive the admonishment of the court, but likewise, the evidence simply fails to establish that the remark inflamed this jury, nor does the evidence support the conclusion that appellant was prejudiced by the remark or the court’s ruling.

Point four is ruled against appellant.

The final point raised by appellant is that the trial court committed error in not dismissing Count III of the information because, as appellant alleges, one Leonard Donahue committed the assault and this being so, the court had no jurisdiction to try appellant on such count.

The information was captioned as follows:

“STATE OF MISSOURI v. LARRY J. MERRITT”
Counts I and II consistently refer to “said defendant”. Count III reads as follows:
“COUNT III
that thereafter on the 30th day of November, 1977, in the County of Jackson and State of Missouri, said defendant did then and there, in and upon one Jackie Spencer, feloniously, wilfully, on purpose and of his malice aforethought, make an assault, and the said Leonard Donahue, either acting alone or knowingly in concert with another, with a certain deadly weapon, towit [sic]: a pistol loaded with gunpowder and leaden balls, then and there feloniously, wilfully, on purpose and of his malice aforethought, did shoot off at, against and upon the head and body of him, the said Jackie Spencer, with a pistol aforesaid did wound, with the felonious intent then and there, him the said Jackie Spencer, feloniously, wilfully, on purpose and of his malice aforethought to kill and slay;”

The specific language in the information objected to on this appeal is, “ . make an assault, and the said Leonard Donahue, either acting alone or . . . ”

The review of this point is made under Rule 28.02, State v. Meiers, 412 S.W.2d 478 (Mo.1967) and State v. Williams, 546 S.W.2d 533 (Mo.App.1977).

In support of this alleged error, appellant cites State v. Nelson, 514 S.W.2d 581 (Mo.1974). That was a case wherein the charge was murder in the first degree. The accused argued unsuccessfully that since he was not named specifically in the body of the indictment, the court lacked jurisdiction to try him. The court disagreed and affirmed the conviction.

State v. Nelson, supra is not dispositive of appellant’s contention for two reasons. First, the failure to specifically name the accused within the indictment or information has already been ruled upon as pointed out under State v. Nelson, supra. Secondly, the case herein does not involve reference to the terms as “the defendant” or “said defendant” but rather, it includes references to another otherwise nonidentified person.

Point V is ruled to the favor of appellant and this cause is reversed and remanded upon Count III only. The reasoning for such ruling and comments relative to the particular questions involved are set forth below.

Our sense of justice under our legal system has provided a long history relative to meticulous care in regard to the wording of indictments and convictions. There is no sound argument which can be presented against such an approach. On the other hand, neither the statutes, rules nor case decisions have suggested or created any mechanism for the application of pure common sense relative to such things as useless language or typographical errors in indictments and informations.

A brief review of the more pertinent cases on this point illustrates what is meant by the latter statement. State v. Manning, 168 Mo. 418, 68 S.W. 341 (1902) is a Su- ' preme Court case involving the charge of assault where, after originally charging the accused with the criminal act, the indictment, by its wording, provided the victim, and not the accused, committed the criminal conduct of assault. The case was reversed by virtue of that wording. In even a more clearly illustrated case, State v. Stephens, 199 Mo. 261, 97 S.W. 860 (1906), a conviction was reversed by virtue of wording in the indictment whereby one Stephens was accused, by indictment, of the criminal act of assault to rape. Within the body of the indictment, the victim was named as the perpetrator. Thus, the court reversed the conviction, reasoning that the indictment was defective and concluding that the assault to commit a rape, by wording of the indictment, had been caused by the victim herself. The conclusion speaks for itself.

In the case of State v. Jones, 570 S.W.2d 336 (Mo.App.1978) a conviction for stealing under $50.00 was reversed when the record revealed the information, in its entirety, failed to name Allen Jones. Instead, the information, in both its caption and charging portions, named as the accused one Paul Humphrey. Little argument can be offered resisting the justice in the decision in State v. Jones, supra, but that case perhaps, more than any other, serves to point out the need for procedural change, either by statute or Supreme Court rule, or both, to insure the accuracy of the indictment or information prior to a trial upon the issues. In the instant case, the appellant was described specifically by name in the original indictment executed by the Grand Jury of Jackson County. The prosecution then executed an information in lieu of an indictment. Within the information, this appellant was specifically named in the caption and repeatedly referred to in Counts I, II and III as “the defendant” or “said defendant”, thus satisfying the rule in State v. Nelson, supra. However, within the wording of Count III, although prior reference was made to this appellant by the use of the term “said defendant”, Count III of the information then included other language, adding another name within the latter wording of Count III.

With that set of facts, this court is expected to square such facts with Rule 24.-01(a), which provides, “The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” See State v. Phelps, 478 S.W.2d 304 (Mo.1972) and State v. Simone, 416 S.W.2d 96 (Mo.1967).

The necessity for proper, clear and concise accusation of a crime is, of course, premised, in addition to a sense of fairness, upon any individual being placed in a position of double jeopardy for the same crime, whether he be acquitted or convicted.

In the instant case, in addition to being specifically identified by name in the original indictment, this appellant was named in the caption of the information and with reference to appellant by the use of the terms “the defendant” and “said defendant” as being consistently found within the body of the information. The reading of the information in its entirety clearly identifies appellant as the accused, describes the charges against him, and provides the appellant with sufficient information for him in preparing a defense to the charge. It appears, with the application of common sense by a reading of the information, this appellant knew of the charge and that he was clearly identified as the accused. See State v. Simone, supra; State v. Tandy, 401 S.W.2d 409 (Mo.1966); State v. Barlett, 394 S.W.2d 434 (Mo.App.1965). The problem arises, however, in trying to square the precise set of facts herein with the decisions in State v. Manning, supra, State v. Stephens, supra and State v. Jones, supra. The wording of Count III, when weighed with all the pertinent facts of this case, still brings this case unquestionably close to the decisions in State v. Manning, supra, State v. Stephens, supra and State v. Jones, supra.

One might conclude that since the appellant herein was properly and unquestionably identified by name in the original indictment, such would be sufficient to affirm the conviction. However, the state herein, after securing an original indictment, proceeded to trial on an information against the appellant. If on appeal mere reference back to the original indictment were permissible, Point V raised herein by appellant would be ruled against him. However, the status of the original indictment became suspended. This question has been before our courts on prior occasions. The general rule is that absent the sustaining of a motion to quash or upon the quashing of the original indictment upon the court’s own action, the original indictment or information is suspended. State v. Thompson, 392 S.W.2d 617 (Mo.1965), affirmed upon retrial 414 S.W.2d 261 (Mo.1967) and § 545.110, RSMo 1978.

In State v. Thompson, supra, under the original indictment, the accused had been charged with attempted robbery. Upon a subsequent information, the accused was charged with felonious assault. In that case, the court rightfully concluded a conviction upon the information could not stand where it substituted a distinctly different offense, § 545.300, RSMo (1978). The court reversed the decision and concluded that retrial could be had upon the original charge since the original indictment had been merely suspended. The court concluded the statute of jeofailes could not be applied to such a set of facts.

It would appear that the statute of jeo-failes, in light of decisions previously cited herein, could not be applied to the case herein.

The dilemma herein is that this court finds itself bound to apply principles of prior case decisions to a set of facts which illustrate nothing more than typographical errors and inclusions of words which bear no relationship to the safeguards against double jeopardy or the requirements of Rule 24.01(a). The reference to cited authority herein is not made to reveal criticism of those decisions, but rather to suggest to the Supreme Court of Missouri that a different approach might be found to resolve such questions presented in this case upon Count III of the information. It is suggested that the Supreme Court of Missouri adopt a specific rule, mandatory in nature, requiring all trial courts, by special pretrial conference or hearing, upon the record and in the presence of the accused, defense counsel and prosecuting attorney, to determine the accuracy of the wording of indictments and informations, both as to the requirements of Rule 24.01(a) and specific correct identity of the accused before proceeding to the trial of any criminal case upon the merits. This procedure would require a bare minimum of time and effort, but could perhaps drastically reduce or possibly eliminate the expense in time and money for the accused, the courts, the Bar and the general public, which results in the retrial of cases turning upon such points. Such procedure could be an aid to the already overburdened trial judges and counsel.

One might say that § 545.230, RSMo 1978, which reads as follows:

“545.230. Indictment by wrong name. If a defendant be indicted by the wrong name, unless he declare his true name before pleading, he shall be proceeded against by the name in the indictment. If he allege that another name is his true name, it must be entered in the minutes of the court; and after such entry, the trial and all other proceedings on the indictment shall be had against him by that name, referring also to the name by which he is indicted, in the same manner, in all respects, and with the same consequences as if he had been indicted by his true name.”

solves the problem, but research of the cases interpreting such statutory section neither answers the question on preventative procedures nor finds itself without latent conflict with decisions previously cited herein on the issue of an incorrect name in the indictment or information.

One might argue that § 545.-030(14), RSMo 1978, which reads as follows,

“545.030. Indictments and informa-tions, when valid. 1. No indictment or information, shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected: .
(14) For any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged; . . . ”

would resolve the problem, but once again effort to square that statutory language with State v. Manning, supra, State v. Stephens, supra and State v. Jones, supra, becomes futile. Indeed, the state in the case herein argues the application of the surplus-age doctrine. A fair understanding of that statute, however, appears more towards acts or omissions alleged, rather than the questions of proper naming of an accused. This court is reluctant to agree with the state’s argument of surplusage, because that approach should be kept very narrow in its application. In addition, the particular language of that section appears to fly in the face of State v. Manning, supra, State v. Stephens, supra, and State v. Jones, supra when the issue is the naming or identity of an accused. Admittedly, these decisions could have, but failed to, entertain any consideration of how to prevent the possibility of such a problem. It is felt the suggestion herein, for a mandatory pretrial determination of this question, is by far the better approach to the question than the application of the concept of surplusage.

The judgment for conviction as to Counts I and II is, in all respects, affirmed. The judgment for conviction upon Count III is hereby reversed and remanded for the reasons set forth herein.

PRITCHARD, J., concurs.

SOMERVILLE, P. J., concurs in result.

      . Pursuant to adoption of the new criminal code, effective January 1, 1979 and under the disposition table, § 560.120 now reads § 569.-020, RSMo 1978.

      . As per footnote no. 1, § 559.225, under the disposition table, now reads § 571.015, RSMo 1978.

      . § 559.180, pursuant to the disposition table, now reads § 565.050, RSMo 1978.

      . State v. Manning, supra, and State v. Stephens, supra cited in State v. Jones, supra, as controlling authority.

      . Adoption of new criminal code did not repeal, change or renumber this section.

      . Adoption of new criminal code did not repeal, change or renumber this section.

      . This section was not repealed, changed or renumbered by adoption of new criminal code.

      . Adoption of new criminal code did not repeal, change or renumber this section.