author: PRITCHARD, Judge.

text:
    STATE of Missouri, Respondent, v. Marty PINEGAR, Appellant.
    No. WD 30273.
    Missouri Court of Appeals, Western District.
    April 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 11, 1979.
    Howard C. Gosnell, Jr., Nevada, for appellant; Ewing, Ewing, Carter, McBeth & Smith, Nevada, of counsel.
    John D. Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and MAN-FORD and PRITCHARD, JJ.
   PRITCHARD, Judge.

Upon a trial to the court without a jury, appellant was found guilty upon Count I, breaking and entering the Thomas Pharmacy of Nevada, Missouri, and sentenced thereon to three years imprisonment. Arising from the charge of Count I, appellant was also found guilty of stealing, and his sentence thereon was imposed at two years imprisonment. The sentences run concurrently under § 560.110, RSMo 1969. The court granted the jail time served by appellant, some four months, as a credit on the (concurrent) sentences.

Appellant’s points concern his asserted invalidity of a search and seizure of and from a room occupied by him in his mother’s and stepfather’s home (the Pritchetts), and from his unlocked footlocker in the room. He contends that invalidity not only affects the admissibility of the seized evidence but also his own statements given to an officer following recovery of items from his footlocker.

The evidence elicited upon the pre-trial hearing of appellant’s motion to suppress is this: On January 24, 1978, Police Officer Larry Moore and Lt. Delbert Volkman met with an informant and the prosecuting attorney in the latter’s office. It was there learned from the informant that appellant had broken into the Thomas Pharmacy and some of the (stolen) drugs were at 217 East Allison in Nevada, Missouri, that being the home of appellant’s mother and stepfather. The informant stated that the drugs were in the bedroom, and that appellant had made statements that he had broken in through a wooden door and that the business did not have an alarm system. Upon Officer Volkman’s affidavit a search warrant for the residence was obtained from the magistrate. The warrant was not served upon the Pritchetts, however, because they executed a consent to search form. The Pritchetts were told of the existence of the search warrant. The residence was searched on January 27, 1978, and Officer Volkman made a return of the items seized to the magistrate. Upon entering the house, Volkman was shown the room where appellant slept in one of the two beds, and Volkman learned from Mrs. Pritchett that appellant “would just come in for a few minutes or maybe not show up at all. * * * Q. He was probably living elsewhere? A. Staying elsewhere, yes, part-time. Q. It was essentially Marty’s brother’s bedroom, is that correct? (Objection) Q. Whose bedroom was it? A. I was aware there was two single beds in it, as I recall the younger boy slept in one of the beds. Q. Where did you find the contraband drugs? A. In a black footlocker at the foot of Marty Pinege r’s bed. Q. Was the footlocker open or shut? A. It was shut. Q. Was it locked? A. No, it was not locked. Q. You opened it up? A. Yes. Q. What did you obtain out of the locker? A. Several bottles of drugs, supposedly drugs.”

Mr. Pritchett testified that the officers searched the two upstairs rooms pursuant to the consent to search form, including the north room in which appellant stayed. His own nine-year old son had stayed there at one time, but he had been sleeping downstairs. “Q. In fact, at this time the only warm body occupying this room was Marty Pinegar, is that correct? A. That’s right.” No one else lived in the room; appellant had been living there two or three months on a continuous basis; he moved into his own apartment after he got out of the military service, then moved back to the house, then to another apartment after that; then back to the house. According to Mr. Pritchett, it would be fair to say that appellant was, in fact, living there. Mr. Pritchett further testified that after appellant came back from the military service, he contacted the prosecuting attorney about appellant’s having a bad check out, that he had thrown him out of the house and that he could not keep him from coming back. There was testimony from Mrs. Pritchett that in order to get to the other room on the second floor, she had to pass through the room where appellant’s footlocker was located, but it was a fair statement that the room was appellant’s, and that when the room was cleaned, it was appellant who did it. 0

The motion to suppress was renewed at the start of the trial and was again overruled. At that time Officer Volkman testified that the Pritchetts had signed a consent to search their premises at the police station. He went to the upstairs north bedroom and during its search, he found a footlocker at the foot of the bed which was pointed out to him as the place where appellant slept, and on looking in the footlocker, he found a paper sack containing a plastic bag with several bottles of drugs in it. [These drugs were later identified as coming from the Thomas Pharmacy.]

Appellant was picked up and brought to the Nevada Police Department on January 27, 1978, where Volkman questioned him, first giving him his “Miranda ” rights, and having him sign a waiver of those rights. Volkman testified: “THE COURT: Did you tell him about the search before you interviewed him? A. Before the interview? THE COURT: Yes. A. Not that I recall. THE COURT: Did you tell him what you had found? A. We talked about the break-in and so forth and then later I showed him what we found in the search. * * * Q. Did Mr. Pinegar make a statement before or after he was aware that the items listed as Exhibits 1 through 13 had been recovered from his parents’ home? A. He made the statements to me before the drugs were shown to him. We talked about it for a few minutes before that. * * * Q. * * * At the time you advised Marty Pinegar of his rights and he began the statement set out in Exhibit 17, when were the drugs shown to him? A. He made the statement to me concerning the break-in before I showed him the drugs. Q. Did you tell him about the drugs being recovered? A. Not that I recall, no.”

It should be noted that the state does not rest the validity of its search and seizure upon the search warrant procured by it, but only upon the consent to search given by appellant’s mother and his stepfather. The search warrant was never delivered or served upon the latter two persons. See the requirement that a copy of the warrant be delivered by the officer to the person from whose possession property was taken, along with an itemized receipt of the property, in § 542.291, sub. 4, Laws Mo. 1974, p. 922, § 7. The burden of proof was upon the state to prove the validity of the consent given. State v. Peterson, 525 S.W.2d 599, 609 (Mo.App.1975). As pointed out by appellant, older cases have permitted parents to give consent to a search of a home in which children have a room upon the parents’ “property interest” theory, wherein children have no standing to object. See, e. g., State v. Pruitt, 479 S.W.2d 785 (Mo. banc 1972). That concept has been relaxed, however, in favor of one which bases the right to search and seizure evidence upon a child’s right to a reasonable expectation of privacy. See In re J.R.M., 487 S.W.2d 502 (Mo. banc 1972), where it was held that a child, regularly using a car for which he was not the record owner, had standing, an adequate possessory interest in the car, to challenge its search and items therein seized as evidence. In U. S. v. Brown, 300 F.Supp. 1285 (D.C.N.H.1969), the court held that defendant had standing to challenge a search of his suitcase even though it was in another person’s home. In State v. Peterson, supra, the court held there was no authority on the part of the parent to consent to the search of defendant son’s room, which was exclusively his area within the parents’ home, because defendant had a reasonable expectation of privacy which was personal to him which could not be waived by his parents. In United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), a footlocker which had been lawfully seized from the open trunk of a parked car during arrests, was searched without a search warrant more than an hour later. It was held that those from whom the footlocker had been seized were entitled to the protection of the warrant clause of the Fourth Amendment before their privacy interests in the contents of the footlocker could be invaded, and its search violated that amendment. In Reeves v. Warden, Maryland Penitentiary, 346 F.2d 915 (4th Cir. 1965), a search without warrant of petitioner’s room, authorized by his mother, also a tenant in petitioner’s sister’s home, and of his private bureau drawer herein incriminating evidence was found and introduced into evidence, was found to be violative of his Fourth Amendment rights. See also the therein cited and quoted case of United States v. Rees, 193 F.Supp. 849 (D.C.Md.1961). In United States v. Wilson, 536 F.2d 883 (9th Cir. 1976), it was noted that a tenant, McKee, could effectively consent to a search of her apartment, but she had neither actual or apparent authority to consent to a search of the three codefendants’ suitcases therein, citing United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). It was noted, 536 F.2d 885[2], that defendant Wilson had standing to challenge the search of his own suitcase, but the evidence that he sought to suppress was found during a search of codefendant Willis’ suitcase, and under the circumstances, Wilson was in no position to claim any expectation of privacy in Willis’ suitcase.

Although there here may be some question as to whether appellant had a reasonable expectation of privacy in the second floor room, used infrequently by him, shared at times by another, and the access to which was open to others in the family, the disposition of this aspect of the war-rantless search need not turn upon a determination of the validity of the consent to the room search. Rather, the inquiry focuses upon the search of appellant’s footloeker from which the incriminating evidence was seized. Under the foregoing cases, it must be held that appellant had a reasonable expectation of privacy in his personal footlocker, and that its search violated his Fourth Amendment rights. The motion to suppress the evidence seized from the footlocker, and the objection to its admission into evidence at trial, should have been sustained, and it was error not to do so.

The matter next to be considered is whether, under the evidence, appellant’s written and signed confession, given after warning of his Miranda rights, was tainted by the above held illegally seized evidence from his footloeker. Appellant urges that his confession was “fruit from the poisonous tree.” The standard for the applicability of the doctrine is set forth in Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963): “* * * [T]he more apt question in such a case is whether, granting the establishment of the primary illegality, the evidence to which the instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” See the extensive analysis of the doctrine in People v. Johnson, 70 Cal.2d 541, 75 Cal.Rptr. 401, 450 P.2d 865 [modified on other grounds, People v. DeVaughn, 18 Cal.3d 889, 135 Cal.Rptr. 786, 558 P.2d 872 (1977)]. In that case, the apartment of eodefendant Howard was illegally searched, and after being warned of his Miranda rights, and after being shown a seized TV set and being asked about it, he confessed, implicating defendant Johnson. Johnson was arrested and first denied any involvement, but when confronted with Howard, who repeated his confession, Johnson confessed. He objected to the admission of the confession in the court tried case on the ground that it was induced by Howard’s confession, which was inadmissible because the search of Howard’s residence and his arrest were unlawful. It was held that the confession of Johnson was the fruit of the unlawful search, the court saying, 75 Cal.Rptr. 403, 450 P.2d 867[13], “The rule is settled that where a confession is induced by illegally seized evidence, the confession is subject to exclusion as fruit of the poisonous tree. (Citing cases)” (Italics added.) See also State v. Dudley, 561 S.W.2d 403 (Mo.App.1977), where an illegally seized suitcase was opened in the presence of defendant, who then, after Miranda warnings, gave a tape recorded confession, held to be fruit of the poisoned tree; and Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), which applied the taint of an illegal arrest, made without warrant or probable cause, to a confession given less than two hours later, and held also that the giving of Miranda warnings did not, by themselves, purge the taint of the illegal arrest.

The matter of a possible taint of appellant’s confession did not come out on the pre-trial hearing to suppress evidence, the issue there being only the validity of the search and seizure. A fair reading of the testimony of Volkman adduced at trial, considered in its light most favorable to the state, leads to the conclusion that the matter of the seized evidence was talked about after appellant gave his statement: “THE COURT: Did you tell him about the search before you interviewed him? * * A. Not that I recall. * * * Q. Did Mr. Pinegar make a statement before or after he was aware that the items as Exhibits 1 through 13 had been recovered from his parents’ home? A. He made the statements to me before the drugs were shown to him. We talked about it for a few minutes before that.” And, again, Volk-man testified that he did not, as he could recall, tell him about the drugs being recovered. The fair inference, considering the whole of the testimony, is that the talking “a few minutes before that” referred to time that the drugs were shown to appellant, i. e., after the statement was given. Under the circumstances here, and an application of the standards which might establish a confession to be a “fruit of the poisonous tree”, it must be held that appellant’s confession was not induced by the illegally seized evidence. It was therefore not tainted and was admissible in evidence on the issue of appellant’s guilt of the charges of breaking and entering and stealing independent of the evidence resulting from the illegal search and seizure.

The question lastly becomes whether the error in admitting the illegally seized evidence was harmless, i. e., did it reasonably affect the outcome of the case? The evidence seized, had it been admissible, would have had equal weight for the trier of the fact, the court, as the confession. Thus, the admission of the seized evidence did not overwhelmingly tip the scales against appellant as it was held to have done in State v. Clark, 259 S.W.2d 813 (Mo. 1953). Nor is it the “powerful” and “persuasive” evidence of the kind held in State v. Howell, 524 S.W.2d 11, 18[4] (Mo. banc 1975), to be prejudicial error requiring a new trial. Nor is it a case of circumstantial evidence which was corroborated by highly persuasive illegally searched and seized evidence which was in State v. Hicks, 515 S.W.2d 518, 522 (Mo.1974), held not to be harmless. Appellant’s untainted confession, being not otherwise contested by him as to its voluntariness, was comparable to what would have been his own testimony by way of an admission of guilt. This situation is similar to State v. McGee, 447 S.W.2d 270, 275 (Mo. banc 1969), where a violation of defendant’s Miranda rights was held to be harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), where he testified to the facts claimed to be self-incriminating.

No reversible error appearing, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: CRIST, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Darryl BURSE, Defendant-Appellant.
    No. 40375.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 22, 1979.

      David M. Johnson, Hayes & Heisler, Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto and Michael P. Donegan, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   CRIST, Judge.

Criminal case. Defendant was convicted by a jury of attempted robbery first degree and armed criminal action. He received concurrent penitentiary sentences of 8 years and 35 years, respectively.

Defendant claims error in that the state failed to prove the victim was placed in fear. We find no error. Proof that the “victim was placed in fear is not an element of attempt to commit robbery first degree. State v. Holliday, 546 S.W.2d 38 (Mo.App.1976). In any event, defendant’s use of a gun in the robbery attempt was sufficient evidence for the jury to find that the victim was placed in fear. State v. Dulaney, 428 S.W.2d 593, 595 (Mo.1968).

We hold that the evidence in support of the jury verdict is not insufficient, that no error of law appears and that an extended opinion would have no precedential value.

Judgment affirmed in compliance with Rule 84.16(b).

REINHARD, P. J., and GUNN, J., concur.


author: REINHARD, Presiding Judge.

text:
    Stephanie Louise MUELLER, a minor by Shirley Mueller, next friend, and Shirley Mueller, Respondents, v. Erwin Harold JONES, Appellant.
    No. 39363.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 22, 1979.

      William W. Brown, St. Louis, for appellant.
    Irwin Dubinsky, St. Louis, for respondents.
   REINHARD, Presiding Judge.

Action to establish paternity. The trial court determined that defendant was the natural father of plaintiff’s twin girls and thereby awarded plaintiff some $4,000 as an offset against her past expenses, as well as weekly child support and attorneys’ fees. Defendant appeals the award portion of the judgment.

The evidence demonstrated that plaintiff bore twins out of wedlock on October 15, 1974, and that one of the children died just four days later. Plaintiff was a widow and defendant separated from his wife at the time they began keeping company.

Trial was held on March 3, 1977, and ended with the court declaring defendant father of the minor children. Defendant was directed to pay plaintiff $4,000, that sum to represent plaintiff’s lying-in expenses attending the birth of the twins plus her expenses for the care, custody and maintenance of the living child since its birth and the burial expenses of the deceased child; attorneys’ fees in the amount of $650; $100 as litigation expenses; $125 for the expense of administering a blood test; and, $25 per week for child support.

On appeal, defendant does not challenge the court’s finding of paternity. Instead, he contends that the court’s award to plaintiff is “excessive and so glaringly unauthorized by the evidence as to shock the judicial sense of right.” He bases this claim on evidence of his own financial condition, but makes no other challenge to the order.

In R_ v. R_, 431 S.W.2d 152 (Mo.1968), a paternity suit, the Missouri Supreme Court held that our statutory provisions regarding the rights of parents and their obligation to support, affords an illegitimate child a right to support equal to that of a legitimate child. With this Supreme Court directive in mind, we must next look to our new dissolution law for guidance in the determination of the appropriate amount of support to which a child is entitled. Section 452.340 RSMo Supp.1973, the applicable statute, provides:

In a proceeding for . . . dissolution of marriage, ... or child support, the court may order either or both parents owing a duty of support to a child . to pay an amount reasonable or necessary for his support

The statute further provides that the following may be considered in determining the extent of a support obligation:

(1) The father’s primary responsibility for support of his child; (2) The financial resources of the child; (3) The financial resources of the custodial parent; (4) The standard of living the child would have enjoyed had the marriage not been dissolved; (5) The physical and emotional condition of the child, and his educational needs; and (6) The financial resources and needs of the non-custodial parent.

Thus, primary responsibility for child support rests with the father, but both parents have a duty to support. Roberts v. Roberts, 553 S.W.2d 305[1] (Mo.App.1977). In determining the amount of child support allowable herein, the circuit court should consider the reasonable needs of the child for food, clothing, medical and educational expenses as well as the ability of the father to pay. While the award should not be greater than the father’s ability to pay, the court may consider both his present and his past earnings in reaching its decision. Naeger v. Naeger, 542 S.W.2d 344[2] (Mo.App.1976).

The evidence in this case demonstrated that plaintiff, as a waitress, earned $3,900 in 1976. During this same period, defendant, as an auctioneer, earned $8,700 before suffering an injury in September, 1976. The evidence also established that, prior to this suit being filed, defendant owned a house worth $25,000 subject to a $22,500 deed of trust. After plaintiff filed this suit, defendant secured a second deed of- trust in favor of his present in-laws for $5,800 and then deeded the property to his present wife. Although defendant testified to having sustained a work-related injury in September, 1976, and was still unable to work at the time of trial, he produced no medical testimony as corroboration. Defendant stated that he received compensation for this injury, which injury did not necessarily affect his career as an auctioneer, but claimed he did not have sufficient funds for either his auctioneering license or bond. He offered no evidence as to his own living expenses. Defendant testified that plaintiff had loaned him and another man $5,000 of which $1,300 remained unpaid.

Defendant does not claim that plaintiff failed to sustain her burden of proof as to the elements of damages she alleged. Neither does he challenge her proof as to the reasonable needs of the child in the award of weekly child support.

Based upon plaintiff’s testimony that she expended between $50 and $75 per week for the support of the child and $1,800 for other expenses (birth and funeral) plaintiff offered proof of expenses in excess of $7,500. The award of $4,000 for her past expenses and the allowance of $25 per week child support were well within the evidence and indicates that the court considered the financial condition of both parties, as well as defendant’s present physical condition, in making its order. The court properly divided the burden of support between the parties after having considered defendant’s ability to pay. We find that the court did not abuse its discretion under the standard of review stated in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), and we affirm its judgment.

Defendant also challenges the award of attorneys’ fees as being excessive. Plaintiff’s proof demonstrated attorneys’ fees in excess of $1,000. The allowance of $650 for attorneys’ fees and $100 for litigation expenses were, likewise, within the evidence and not an abuse of discretion. The award of attorneys’ fees in paternity suits has been clearly established in the case of Stegemann v. Fauk, 571 S.W.2d 697[6-7] (Mo.App.1978). Defendant makes no specific complaint of the allocation of the blood test expenses to costs. Further, we deny plaintiff’s request to assess a penalty of $1,000 for a “frivolous appeal.”

Judgment affirmed.

GUNN and CRIST, JJ., concur.


author: TITUS, Judge.

text:
    STATE of Missouri, Respondent, v. Stephen Greg HASLIP, Appellant.
    No. 10623.
    Missouri Court of Appeals, Southern District, Division One.
    June 4, 1979.
    Motion for Rehearing or to Transfer to Supreme Court Denied June 27, 1979.
    Application to Transfer Denied July 17, 1979.

      John D. Ashcroft, Atty. Gen., Neil MacFarlane, Steven D. Steinhilber, Asst. Attys. Gen., Jefferson City, for respondent.
    Ralph E. Baird, Joplin, for appellant; Douglas Hamilton, Joplin, of counsel.
   TITUS, Judge.

Charged under the Second Offender Act (§ 556.280) with first degree murder (§ 559.010), defendant was jury convicted thereof. Presumably because 'defendant and his trial attorney became estranged after the verdict was rendered and, as defendant said, “he don’t work for me no more,” no motion for a new trial was filed. Also, before allocution was afforded, judgment rendered and sentence pronounced (Rule 27.09), the trial judge went out of office and defendant acquired new counsel. A special judge was assigned “to perform the duties to be performed by the court under these rules after a verdict is returned.” Rule 79.01; cf. State v. Hopkins, 573 S.W.2d 744, 745 (Mo.App.1978). Upon affording al-locution, the special judge sentenced defendant to life imprisonment as mandated by § 559.030. Defendant appealed.

Since no motion for a new trial was filed, our review of grounds asserted by defendant on appeal should be limited to consideration of plain errors affecting substantial rights. Rule 27.20(c); State v. Collett, 542 S.W.2d 783, 785[1] (Mo. banc 1976). Of course, as defendant complains in one of his points relied on, if the state failed to make a submissible case, then plain error resulted. State v. Covington, 559 S.W.2d 78, 79[1] (Mo.App.1977). Therefore, we will review that point premised upon appellate rules that the evidence is to be viewed in the light most favorable to the verdict [State v. Hegwood, 558 S.W.2d 378, 379[1] (Mo.App.1977)] and that the jury had leave to believe or disbelieve all, part or none of the testimony of any witness. State v. Davis, 556 S.W.2d 745, 747[2] (Mo.App.1977).

The dead body of Lee Coquillette was found in his mobile home in Joplin near 2 a. m. May 17, 1974. Death was caused by a shotgun wound inflicted at close range. Outside the trailer was found a live .16 gauge shotgun shell and a .16 gauge shotgun containing a spent shell. The evidence indicated the shotgun had been fired through an opened jalousie window and screen while Coquillette was apparently in the prooess of watering houseplants. Albeit he could not make positive identification, a special F.B.I. agent who examined a plaster cast made of a boot print found outside the trailer, opined the print was most similar to one of defendant’s boots which defendant had asked a friend to take and “go swimming with them.” Instead of disposing of the boots as directed, the recipient gave the boots to authorities who had comparisons made between them and the cast. The state, at the trial, produced a witness who asserted defendant had recounted that he had killed Coquillette with a shotgun while the victim was in his trailer watering plants. Another witness called by the state testified that in conversations overheard between defendant and one Be-bee, defendant “said he shot [this man] with a shotgun.” We rule this evidence was sufficient to submit defendant’s innocence or guilt to the jury. Cf. State v. Higdon, 356 Mo. 1058, 1060, 204 S.W.2d 754, 755(1) [banc 1947]. (This covers point VII in defendant’s brief).

Another point (Number I) advanced by defendant is that the “Court erred in pronouncing judgment and sentence upon the Appellant for the reason that the prosecution was barred by the ‘Agreement on Detainers’ (V.A.M.S. Section 222.160) in that the Appellant had been returned to the Federal custody prior to being tried in violation of Article IV, Paragraph 5, of the Agreement.” Defendant’s first three appearances in the Missouri courts were caused via writs of habeas corpus ad prose-quendum while defendant was incarcerated in the Medical Center for Federal Prisoners in Springfield, Missouri; the last two such writs issued when defendant was imprisoned in the United States Penitentiary at Leavenworth, Kansas. In State ex rel. Stanley v. Davis, 569 S.W.2d 202, 210 (Mo.App.1978) it was held that the Agreement on Detainers “is not applicable to the situation where a federal prisoner in Missouri is transferred to a Missouri court for the limited purposes of arraignment, appearances or hearings and then returned to the federal facility in Missouri.” But more to the point in this case where defendant’s appearances in the Missouri courts were obtained through writs rather than detainers, is the pronouncement of the United States Supreme Court in United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 1847, 56 L.Ed.2d 329 (1978): “We therefore conclude that [interstate transfers of prisoners via] a writ of habeas corpus ad prosequendum is not a detainer for purposes of the Agreement.”

We summarily and gratuitously review defendant’s other points relied on albeit they were not preserved because no motion for a new trial was filed. “VII. The evidence was insufficient to prove the guilt of the Appellant beyond a reasonable doubt. VIII. The Court abused its discretion in refusing Appellant’s requested instruction on circumstantial evidence.” Initially it is to be noted that these points, although we have previously decided point VII on its merits under the plain error rule, are written in utter disregard of the mandatory requirements of Rule 84.04(d) because they do not undertake to state “wherein and why” the evidence was insufficient to prove defendant’s guilt beyond a reasonable doubt or “wherein and why” the court abused its discretion in refusing the proffered instruction. Moreover, it is to be seen that these points are stated sans citation of authority [State v. Paige, 550 S.W.2d 582, 584[4] (Mo.App.1977)], and while it has been decided “that Rule 84 does not require citation of authority in every instance, we emphasize that we do not thereby intend to modify the appellant’s burden on appeal of demonstrating error by the court below. Thus, if the point advanced is not a matter of first impression and is not simply a matter of logic or policy or analysis of statutory or documentary language, ., the court on appeal need not search for precedential support to overrule the contention. If the point is one for which precedent is appropriate and available, it is the obligation of appellant to cite it if he expects to prevail.” Thummel v. King, 570 S.W.2d 679, 687[13] (Mo. banc 1978). The two points do not present matters specified in the exceptions noted in Thummel and offer only conclu-sionary assertions for which appropriate precedent was surely available if they had merit. In the circumstances here, we decline to do defendant’s briefing on appeal.

In defendant’s point III he says the trial court erred in permitting a witness to testify concerning defendant’s alleged but uncompleted preparations to escape from jail because it constituted evidence of a separate crime not connected to the crime for which defendant was being tried. The obvious difficulty with this point is that defendant did not object to the testimony at trial nor in a motion for a new trial. When such is the case, the alleged error is not preserved for appellate review and warrants no consideration when presented for the first time in defendant’s brief on appeal. State v. Wendell, 542 S.W.2d 339, 342[5] (Mo.App.1976).

Point relied on numbered II in defendant’s brief is to the effect that the trial court erred in not imposing upon the state sanctions for its failure to disclose a certain witness’ written statement concerning defendant’s admissions as required by Supreme Court Rules. As then written, Rule 25.31 stated: “Requests or motions for discovery shall be made not later than twenty days after arraignment . . . .” It is enough to observe that defendant was arraigned September 15, 1975, but did not request or move for discovery until more than 20 days after arraignment or on October 7, 1975. The motion was untimely and of no effect. Cf. State v. Rains, 537 S.W.2d 219, 221-222[1] (Mo.App.1976). While the state was not compelled to do so, it, nevertheless, disclosed the name of the witness and the nature of the witness’ proposed testimony to defendant some 20 days before trial.

Under point IV defendant asserts his right to be discharged because he was denied a speedy trial. Sixth Amendment, Constitution of the United States; art. I, § 18(a), Constitution of Missouri. This is predicated upon the fact that defendant was jury-convicted in July 1976 but was not sentenced until February 1977, a period of some seven months. Although defendant summarily asserts the delay prejudiced “his ability to obtain post conviction [sic] relief,” he does not undertake, in violation of Rule 84.04(d), to demonstrate “wherein and why” the delay was prejudicial. The following cases illustrate the indicated periods between the plea of guilty or conviction and sentencing were not prejudicial to defendant nor violative to his Sixth Amendment rights. Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957)—24 months; Brooks v. United States, 423 F.2d 1149 (8th Cir. 1970)—10 months, cert. denied 400 U.S. 872, 91 S.Ct. 109, 27 L.Ed.2d 111; United States v. Tortorello, 391 F.2d 587 (2d Cir. 1968)—29 months; Bolduc v. United States, 363 F.2d 832 (5th Cir. 1966)—13 months; United States v. Grabina, 309 F.2d 783 (2d Cir. 1962)—24 months; Kaye v. United States, 235 F.2d 187 (6th Cir. 1956)—23 months; State v. Brown, 445 S.W.2d 647 (Mo.App.1969)—6 months. In the instant case there is no showing of prejudice to the defendant as a result of the delay because during that time defendant was confined in the United States Penitentiary at Leavenworth where he would have been incarcerated irrespective of whether his state sentencing had been more speedily imposed, and that whatever time defendant may have spent in Missouri jails because of the charged crime would be to his credit on final sentencing and would not be affected by the seven-month delay. § 546.615. In fine, we find no prejudice to the defendant because of the delay.

Defendant’s point relied on numbered IX: “The Court erred in overruling defendant’s Motion to Dismiss for Failure to Furnish a Speedy Trial in accordance with . . Section 545.890.” This statute concerns the discharge of a defendant after a specified number of court terms have passed. The answer to this is “that a defendant is not entitled to be released under the statutes in question simply because the required number of terms have elapsed. In addition to that he must show that he has demanded a trial, and that such request was made without success for a reasonable length of time before his right to release has been asserted. Our ruling is based on the theory . that a defendant’s failure to take affirmative action seeking a speedy trial constitutes a waiver of that right.” State v. Harper, 473 S.W.2d 419, 424[3] (Mo. banc 1971). In this case, according to the transcript, the one and only time defendant asserted his right to a speedy trial was three days before his trial actually began. The point is denied.

Point V complains, as already mentioned, that the court erred in sentencing defendant because the trial judge and the sentencing judge were not the same. However, as previously observed in State v. Tettamble, 450 S.W.2d 191, 193 (Mo.1970), “courts must continue despite death, resignation, illness, or expiration of term of a prior judge,” and this is especially true where, as here, the trial judge’s docket entries stated the punishment was life imprisonment and under the statute for which defendant was convicted, the only permissible punishment, as imposed by the sentencing judge, was life imprisonment. § 559.-030; State v. Boothe, 485 S.W.2d 11, 15[9] (Mo. banc 1972).

In defendant’s point VI he claims the trial court erred in allowing the prosecuting attorney, in closing arguments, to assert that defendant’s lawyer was employing “smoke” to cloud the issues and was, thereby, “committing improper acts.” As written, the point preserves nothing for appellate review because it lacks disclosure as to “wherein and why” the term “smoke” clouded the issues, was prejudicial or indicated that defendant’s counsel was employing improper tactics. Speicher v. Dunn, 530 S.W.2d 45, 46[1] (Mo.App.1975). Furthermore, defendant is in no position to now complain of the argument as he made no objection thereto at trial and did not file a motion for a new trial to save the issue. State v. Sykes, 559 S.W.2d 643, 645[2] (Mo.App.1977).

In his final point, numbered X, defendant says the trial court “abused its discretion in refusing to admit alibi testimony on behalf of Appellant through its [sic] witness, Darrell Sour, said refusal invoked as a sanction against Appellant for failure to comply with pretrial discovery procedures under V.A.M.R. Crim. Rule 25.34, particularly where the Court refused to sanction the State for violation of his rights to defend as guaranteed by the Constitution of the State of Missouri, 1945, Article I, Section 18(a).” The reference to the trial court’s refusal to sanction the state for nondisclosure of a witness has been discussed and disposed of in our consideration of defendant’s point relied on number II, supra.

Our brief gratuitous consideration of this point requires a recitation of the following. On the day the original information was filed, the state served its “Request for Discovery and Disclosure of Material and Information” pursuant to Rules 25.31, 25.34, 25.36 and 25.37. Included in the request was an asking for defendant to disclose if he intended to rely upon the defense of alibi, etc., as provided by Rule 25.34(A)(5). At no time did defendant respond. Darrell Sour testified at the preliminary hearing as a defense witness but made no mention of an alibi. However, when Sour later appeared as a defense witness at trial in the circuit court, defendant’s counsel, out of the jury’s presence, elicited from Sour that defendant was in Sour’s bar at the time Co-quillette had been shot. Defense counsel represented he did not learn of the proposed alibi testimony until the morning of Sour’s appearance as a witness and the state vowed it did not know of any such testimony until Sour took the stand. The trial court did not permit the alibi testimony to go before the jury.

While defendant in his point says the trial court’s refusal to permit the alibi testimony violates his constitutional rights under Art. I, § 18(a) of the Missouri Constitution, “he does not enlarge upon this general claim, fails to suggest in what respect his constitutional rights have been infringed, and cites no authorities in support of his claim. It is not the duty or function of this Court to construct a constitutional defense for appellant.” State v. Cook, 463 S.W.2d 863, 865[2, 3] (Mo.1971). In State v. Cox, 542 S.W.2d 40, 52 n. 19 (Mo.App.1976), it is observed that “[t]he weight of authority of the reported decisions supports the trial court’s ruling precluding the defendant from testifying as to his location and the name of the witness for failure to comply with a notice-of-alibi rule.” If a defendant, as opposed to a witness, may be precluded from testifying regarding an undisclosed alibi, the trial court has equal discretion to prevent such testimony by a third party witness whose proposed alibi testimony remains undisclosed until he takes the witness stand.

Having found no error, plain or otherwise, the judgment is affirmed.

It is so ordered.

FLANIGAN, C. J., and KEET, CAMPBELL, BARKER and HENRY, Special Judges, concur.

      . References to statutes and rules are to Missouri Revised Statutes, 1969, V.A.M.S., and to Missouri Supreme Court Rules, V.A.M.R.


author: FLANIGAN, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. John O. BROOKS, Defendant-Appellant.
    No. 10585.
    Missouri Court of Appeals, Southern District, Division One.
    June 11, 1979.

      R. Jack Garrett, Clyde A. Butts, Garrett & Butts, West Plains, for defendant-appellant.
    No appearance for plaintiff-respondent.
   FLANIGAN, Chief Judge.

A jury found defendant guilty of common assault and he received a sentence of 30 days in jail and a $50 fine. Defendant appeals.

Defendant’s sole “point relied on” is that the trial court erred in failing to enter an order disqualifying himself to try the case. Defendant claims that the order of disqualification should have been entered because defendant had taken the steps necessary under the provisions of Rule 30.12 to disqualify the judge.

The record reflects that the defendant filed two affidavits in an effort to invoke Rule 30.12. The first affidavit was filed on Friday, November 5, 1976. On November 8, 1976, the court entered its order denying the application. The record shows that the reason for the denial was that the case was set for trial on Tuesday, November 9, 1976. The action of the court with respect to the first affidavit was proper because it was not filed “not less than five days before the day the case has been set for trial . . ..” Rule 30.12. See State v. Light, 484 S.W.2d 275[1] (Mo.1972); State v. Lewis, 539 S.W.2d 115, 116[1] (Mo.App.1976).

In Light the application to disqualify was filed on Friday, October 23. The case was set for trial on Wednesday, October 28. The court said, at p. 275: “The motion was filed only four days before trial date, the day of filing and the intervening Sunday not being counted under Rule 31.01 and, therefore, was not timely filed. The trial judge was not disqualified by the motion.”

The record does not reflect when the trial setting of November 9, 1976, was stricken. On November 15, 1976, the case received a new trial setting of November 26, 1976, and the case went to trial on the latter date.

It is unnecessary to decide whether or not the fact that the court gave the case a new trial setting of November 26 had the legal effect of giving defendant another opportunity to invoke Rule 30.12. Even if it be assumed that defendant was given that opportunity, his second attempt to comply with Rule 30.12 was also defective.

On November 16, 1976, the defendant filed a second affidavit. Rule 30.12 provides, in pertinent part, “The judge shall be disqualified under the provisions of this Rule if, having previously given reasonable notice to the opposite party, the defendant . shall file an affidavit . . .” This application to disqualify the judge was properly denied on November 22, 1976, for the reason that the defendant did not give the state, “the opposite party,” any notice, “reasonable” or otherwise, prior to its filing. See State v. Shaw, 357 S.W.2d 894, 896[2] (Mo.1962); State v. Thompson, 472 S.W.2d 351, 353 (Mo.1971).

The judgment is affirmed.

TITUS, J., and CAMPBELL, HENRY and BARKER, Special Judges, concur.

      . Unless otherwise indicated all references to rules are to Missouri Rules of Court, V.A.M.R.

      . Rule 30.12 contains an exception to the five-day requirement but that exception is not applicable here.


author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. Wayman Edward ROSEMAN, Appellant.
    No. KCD 29657.
    Missouri Court of Appeals, Western District.
    June 11, 1979.
    C. B. Fitzgerald, Warrensburg, for appellant.
    John D. Ashcroft, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Wayman Roseman was convicted of rape, sodomy and armed robbery by a jury on a change of venue and sentenced to a term of ten years each on the rape and sodomy charges and five years for the robbery. On this appeal Roseman contends the court erred in (1) overruling an objection to a question propounded by the State on voir dire; (2) sustaining the State’s objection to a defense question on voir dire; (3) limiting cross-examination of a State witness; (4) requiring Roseman to disclose the names of witnesses to be called at trial; and (5) refusing to discharge Roseman because of the insufficiency of evidence. Affirmed.

There was evidence which permitted the jury to find beyond a reasonable doubt the victim of the crimes for which Roseman was convicted went to the lounge in the Sedaba Ramada Inn on the evening of August 8, and left with a man when the lounge closed at 1:30 A.M. on August 9. Driving a short distance from the Inn, they parked on a gravel road and after spending some time “necking” the couple fell asleep. The evidence is not clear as to whether the man was fully clothed when he fell asleep, but it is uncontradicted the victim wore only a halter top.

While the couple slept, a car containing six young men from Sedalia pulled in the gravel road behind them. One of the men went up to look in the car containing the couple and returned to announce there were two people asleep in the car. Thereupon all six young men, three on each side, approached the couple’s car. The man testified he was forced by someone pointing a gun at his head to get out on the driver’s side, relinquish his wallet and watch, and then lie on the ground until the men left, at which time he was placed in the seat of his car.

After the victim was forced from the car on the passenger side, the men seized her purse and took $85 and her watch and rings. She was then dragged back opposite the car the young men had arrived in, whereupon the acts of rape and sodomy occurred. The victim testified two separate acts of rape and sodomy were perpetrated upon her.

After these assaults had been committed, the victim feigned unconsciousness. She was then carried to the young men’s car. The victim testified that the one who carried her to the car sat down in the front seat and put her across his lap, stated that he wanted to rape her, and ran his hands all over her body, including her private parts, as the car was driven away from the scene. After the car was driven some distance, the group discussed throwing her from a bridge, but finally decided to put her in a ditch. Roseman admitted in his testimony that he took the victim from the car and placed her in a ditch, after which he reentered the car and the group left.

Both the victim and her companion stated that because it was dark they could not identify any of the young men involved. However, in addition to Roseman, two of the six men testified, stating that Roseman had a gun at one time. Roseman admitted someone passed a gun to him, but stated he gave it to someone else. The two men also testified that Roseman was in the front seat with the victim when they left the scene and until Roseman carried her from the car. Roseman, although admitting he put the victim out of the car, testified he rode in the back seat.

Roseman first contends the court erred in overruling an objection to a question posed by the State on voir dire examination of the panel. The incident began with the following question:

MR. MacFARLANE: Ladies and gentlemen, I have not told you, of course, all of the facts in this case. There were six black youths in this one car that came up and stopped and I told you four were charged in this case. The two that were not charged are witnesses for the State and they have not been charged with this crime and their testimony is very necessary and critical. Would anybody believe that we have, or tend to disbelieve them, because someone would have a deal if you want to call it a deal, had been made? Would anybody not believe those two, because they have not been charged?

An objection was made on the ground the State was trying to commit the jury. The objection was overruled and the following question was posed by the State:

MR. MacFARLANE: What I’m asking you, is your thoughts on what we call the credibility of those witnesses. Would you tend to disbelieve them, because you think, because some type of deal has been made? Would you tend to disbelieve them for that reason?
Then, you will consider their testimony just as you would the other witnesses and give it proper weight and credence, it that correct?

Thereafter, three members of the panel expressed concern about some people being involved in the affair who had not been charged. After a number of questions on this subject by the three veniremen, the State asked a final question:

MR. MacFARLANE: I want to direct this to the whole panel. The question is really this: If you find it was necessary, or that the State did not bring charges against two people who were otherwise guilty and obtained their evidence, would that preclude you from fairly and impartially considering the evidence that you hear and deciding whether or not the defendant in this case is guilty or innocent?

To this question two veniremen answered in the affirmative and the court struck them for cause, together with the third who had previously raised a question on this subject.

On this appeal Roseman contends the error occurred after the initial question because he says several veniremen became concerned that two men were not charged and the outcome was to impress On the ultimate jury panel an intangible obligation to give these witnesses too much credence. Despite this statement in his brief, in his motion for new trial Roseman complained only generally that the court refused to sustain his objections to questions propounded by the State to the panel. This assignment in the motion for new trial did not set forth in detail and with particularity the specific grounds or causes which it was contended entitled Roseman to a new trial as required by Rule 27.20(a). State v. Hulsey, 557 S.W.2d 715, 719[9] (Mo.App.1977). Nevertheless, this court has considered the argument made here and finds no error. It is apparent the State was trying to ferret out any prejudice the panel might have toward the two who were present but not charged solely on the basis no charges were filed. While some of the questions might have been more precisely framed, an examination of the State’s entire examination on this question reveals the State was not trying to improperly commit the jury to believe these witnesses but was attempting to determine if the jury would refuse to consider their testimony simply because they had not been charged. It was proper to discover if the panel harbored any prejudice against the witnesses only because they had not been charged. State v. Campbell, 543 S.W.2d 518, 519[l-3] (Mo.App.1976).

Roseman next contends the court erred in sustaining the State’s objection to a question during voir dire. In his motion for a new trial he stated only generally the court erred in sustaining objections to his questions on voir dire. He now argues the court erred when it sustained an objection to a question which asked the panel whether, if each one were a defendant in a criminal case, he would want a person like himself sitting as a juror. Roseman contends the court’s ruling on this objection denied him the right to obtain a fair and impartial jury.

Roseman’s motion for new trial is as deficient in preserving this point as it was on the first point for the reasons discussed there.

However, it should be noted the court did not err in sustaining the objection to the particular question Roseman now specifies because the question invited the veniremen to judge their own qualifications, which veniremen are not entitled to do. Union Electric Company v. Turner, 446 S.W.2d 430, 433[4, 5] (Mo.App.1969).

Roseman next contends the court erred in refusing to allow him to cross-examine Dr. Stockwood, who examined the victim after the assault. Roseman’s counsel sought to cross-examine the physician in order to show the victim had stated to him that she had undergone an abortion about ten days prior to the assault. Roseman now argues this statement was admissible because the vaginal bleeding found by the physician could have been attributed to the abortion as well as the rape.

During a colloquy when counsel was trying to introduce this evidence, the court inquired whether counsel was contesting the fact that a rape had occurred. Counsel stated he was not contesting that fact. It is stated in 23 C.J.S. Criminal Law § 1028, p. 1120: “Admissions made by an accused or his counsel in good faith and at the trial in open court are accepted in lieu of testimony • . . . Here, Roseman on the one hand admitted there was a rape, the only contest being that he did not commit the act, yet on the other hand tried to introduce evidence to show bleeding was caused by an abortion and not by penetration during a rape. Roseman cannot take such inconsistent positions; his counsel’s admission made in good faith in open court that a rape had occurred makes the evidence of an abortion irrelevant. The court did not err in refusing to allow cross-examination on this subject.

Roseman next contends Rule 25.34 is invalid in requiring the defense to reveal to the prosecution the names and last known addresses of persons other than defendant who Roseman intended to call as witnesses at any hearing or at the trial, together with their written or recorded statements and existing memoranda, representing or summarizing part or all of their oral statements. Roseman’s pretrial motion asserting Rule 25.34 was unconstitutional was overruled. However, in this court Roseman does not mount a constitutional attack on Rule 25.34, but instead asserts the rule is invalid because it violates the work-product doctrine and the attorney-client relationship.

After his pre-trial motion was overruled, Roseman revealed the names of four witnesses — three character witnesses and one of the young men with Roseman at the time of the assault whose deposition had already been taken by the State. In State v. Hardin, 558 S.W.2d 804, 807 (Mo.App.1977) this court relied on United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975) in holding the production of statements taken by the defense from witnesses under Rule 25.34 did not violate a defendant’s constitutional right against self-incrimination. This court further held the production of these statements did not violate the work-produet doctrine because such statements did not contain any opinions, theories, or conclusions of counsel, and, therefore, did not require counsel to divulge any information which qualified under the work-product doctrine.

Rule 25.40 provides the court may at any time, on motion and for good cause shown, order that specified disclosures be denied, regulated, restricted or deferred, or make such other order as it deems appropriate. No protective order under this rule was sought in this case. Roseman does not demonstrate in what way the production of the names of the witnesses he intended to call violated the work-product doctrine. If he felt the production of the names of witnesses he intended to call violated the work-product doctrine he could have filed a motion seeking a protective order. On a hearing of such motion the facts giving rise to the contention could be fully developed and this court would have a basis on which to review such a claim. As it is, this court has only the bare assertion that a violation of his rights under this doctrine has occurred. On this record Roseman has not shown his rights under the work-product doctrine were infringed by requiring him to divulge counsel’s opinions, theories or conclusions.

Roseman also contends Rule 25.34 violates the attorney-client privilege. This ground was fully explored in Hardin. The disclosure of the names of witnesses did not disclose any communication between Rose-man and his attorney. Therefore, the disclosure made here did not violate the attorney-client privilege.

Roseman finally contends the evidence was insufficient to show he had the required specific intent to commit the crimes alleged and to show he had a common purpose with the other persons involved to commit the crimes alleged. In State v. Cain, 507 S.W.2d 437, 440-441[3-10] (Mo.App.1974) the court fully set out the rules to be applied in resolving these contentions. After first observing that the evidence must be viewed most favorably to the State, the court then noted “[a]ll persons who are present at the commission of an offense and participating therein are principals and in such circumstances the act of one is the act of all; all persons who act together with a common intent and purpose in the commission of a crime are equally responsible therefor.” The court then further explained that “[a]ny evidence showing any form of affirmative participation is sufficient to support a conviction.”

While neither the victim nor her companion could identify Roseman or any of the other young men who were present, the testimony of two of Roseman’s companions and the testimony of Roseman himself placed Roseman at the scene. From the testimony of his two companions, the jury could have found that Roseman had a gun and helped guard the victim’s companion to prevent him from assisting the victim. Further, from the testimony of Roseman’s two companions and the testimony of the victim, the jury could have found that Rose-man placed the victim on his lap in the car and ran his hands over her body. He admitted he removed her from the car, placed her beside the ditch and reentered the car to make his escape with the others. Clearly, the evidence was sufficient to show Roseman’s affirmative participation in the crimes charged.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, ex rel. Mary B. KIELY, and Dianne Bockelman, Relators-Respondents, v. Dorothy SCHMIDLI, Secretary of the Board of Education of the Reorganized District R-10 School District, Benton County, Missouri, Respondent-Appellant.
    No. 29721.
    Missouri Court of Appeals, Western District.
    June 11, 1979.
    Kelso Journey, Clinton, for respondent-appellant.
    James T. Buckley, Sedalia, for relators-respondents.
    Before HIGGINS, Special Judge, Presiding, SWOFFORD, C. J., and WELBORN, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge, Presiding.

Appeal from writ of mandamus which commanded a school board and its secretary, respondent Dorothy Schmidli, to conduct an election on a school district boundary change. The question is whether, upon commencement of this action, there was a legal duty on respondent secretary to post notices of such an election, subject to enforcement by mandamus. Reversed.

Reorganized District R-10 is governed by a six member board. The board’s last meeting prior to the annual school election of April 5, 1977, was March 3, 1977. Dorothy Schmidli was the board’s secretary through the election of April 5, 1977.

A mass meeting of R-10 patrons was held March 15, 1977, for nomination of two board candidates for the annual election ballot. Incumbent board member John Kiely was defeated for nomination after which he read to the audience a paper purporting to be a petition for boundary change. He placed some papers headed “Notice of Special Election” on a table before Mrs. Schmidli and directed her to sign them. Mrs. Schmidli refused for the reason there was no board meeting or order of the board authorizing or directing her to give any such notice. Mr. Kiely retrieved and retained all such papers. Relator Mary B. Kiely, wife of John Kiely, was President of R-10 board and had the power to call a special meeting of the board. No such meeting was called.

At 7:30 p. m., March 16, 1977, Mr. Kiely and three other persons went to Mrs. Schmidli’s home and handed her a petition for change of boundary between District R-10 and adjacent District R-9. Mrs. Schmidli filed such papers with other papers to be presented to the R-10 board at its next meeting scheduled for April 6,1977.

The District R-9 board received the boundary change petition March 14 or 15, 1977, and it ordered newspaper publication of notices of election for consideration of the boundary change at the annual election April 5, 1977.

On March 18, 1977, the Petition for Writ of Mandamus was filed, and Mrs. Schmidli was served with an Alternative Writ of Mandamus which commanded her “to post written notice in the manner prescribed by Section 162.061” of an election to be conducted April 5, 1977, on the proposition to change the boundary line between District R-9 and R-10. Mrs. Schmidli, advised by counsel, refused to comply with the writ; and after answer and return to show cause order, the matter came on for trial after which the alternative writ was made permanent.

At the hearing it was conceded there was no board action or order of the board with respect to notice of election to be given by Mrs. Schmidli; and that the form notice which Mr. Kiely asked her to sign which read “Done by order of the Board of Education this 15th day of March, 1977,” was a false statement.

Section 162.431 RSMo provides that a prescribed number of voters in a six director school district may petition for a change of boundaries in which case “The secretaries of the district school boards shall give notice of an election on the desired change before the next annual or biennual election in the manner provided by Section 162.061 * *

Section 162.061, RSMo provides that such notice “shall be in writing and shall be given either by posting written notice in at least five public places within the county * * * The method of giving notice shall be determined by the school board of the district by an order entered on the records of the district * *

The function of the writ of mandamus is to enforce, not to establish, a claim or right; the office of the writ is to execute, not to adjudicate. State v. Hawkins, 337 S.W.2d 441, 443 (Mo.App.1960). “In order to warrant control by mandamus, there must be an existing, clear, unconditional, legal right in relator, and a corresponding present, imperative, unconditional duty upon the fact of respondent, and a default by respondent therein”. State ex rel. Public Service Commission of Missouri v. Missouri Pac. R. Co., 280 Mo. 456, 463-464, 218 S.W. 310, 311 (1919).

The record demonstrates that the method of giving notice was never determined by the school board of R-10 district as required by Section 162.061, supra. There was thus no unconditional duty upon Mrs. Schmidli as clerk of the R-10 board subject to enforcement by writ of mandamus.

Judgment reversed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. H. Lee SAVERAID, Appellant.
    No. 29966.
    Missouri Court of Appeals, Western District.
    June 11, 1979.
    Jerold L. Drake, Stephens & Drake, Grant City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HIGGINS, Special Judge, Presiding, SWOFFORD, C. J., and WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

A jury in the Mercer County Circuit Court (on change of venue from Harrison County) found H. Lee Saveraid guilty of stealing more than $50 by deceit. § 560.-156, RSMo 1969. His punishment was fixed at 45 days’ imprisonment in the county jail. He appeals from the ensuing judgment and sentence.

The question presented is whether or not, prior to The Criminal Code, a promise to pay for goods, made with intention not to perform, will support a conviction for stealing by deceit.

At around noon on November 16,1976, H. Lee Saveraid went to the elevator of the Consumers Oil Company at Ridgeway, Missouri. He inquired about buying some corn, saying that he had some hogs to feed out on a farm east of Cainsville and would probably need two wagon loads and possibly two and one-half loads. A farm wagon which appellant was pulling with a pickup truck was loaded with 191.78 bushels of corn. The agreed upon price was $2.14 per bushel, which amounted to $410.40. After the corn was loaded and weighed, Gordon E. Grant, a retail field man for Consumers Oil Company, started to make out a ticket for the corn that had been loaded on appellant’s wagon. However, appellant said that he would take that load of corn to his farm and come back later that same day for another load and that he would pay cash for the corn when he came back. Appellant left with the corn and failed to reappear at the Ridgeway facility either later that day or at any other time. Gordon E. Grant testified that the reason he permitted appellant to drive off with the load of corn was because appellant had told him that he would be back that same day to pay cash and settle up for the corn he had taken and would take. Appellant testified that, after leaving the elevator of the Consumers Oil Company, he took the load of corn to his farm in Coffey, Missouri, rather than to his Cainsville farm. Appellant did not pay for the corn until November 14, 1977, the day before his trial, and at that time he paid for it at the company’s Maryville, Missouri, office.

On May 19, 1977, the prosecuting attorney of Harrison County, Missouri, filed an information against appellant, charging stealing by deceit.

Testifying in his own behalf, appellant admitted the transaction as shown by the state’s evidence, but denied that he intended to steal the corn and said that he intended to pay for it. His explanation for his ■failure to pay was that he had “all kinds of money problems.”

Appellant contends that his motion for judgment of acquittal should have been sustained “because a false promise to do something in the future will not support a conviction for stealing in violation of Section 560.156.”

The state concedes that previously decided cases in this jurisdiction are in accord with appellant’s contention. State v. Petty, 119 Mo. 425, 24 S.W. 1010 (1894), is a concise holding, as follows:

“In order to constitute the crime of obtaining money or property by false pretenses, it is requisite that the false pretense should be either of a past event or of some fact having a present existence; and it can not consist of a promise to do something, or of some event to happen in the future. State v. Evers, 49 Mo. 542; State v. DeLay, 93 Mo. 98, 5 S.W. 607; State v. Kingsley, 108 Mo. 135, 18 S.W. 994.
“Here the alleged false pretense by which defendant obtained the $10 from Meltabar-ger, was that he would ship Meltabarger a large quantity of goods and wares. Under the cases cited, the indictment alleges no offense, and as the evidence preserved shows that the charge in the indictment is in accordance with the facts, we reverse the judgment, and discharge the defendant.”

See also State v. Young, 266 Mo. 723, 183 S.W. 305, 308 (1916); State v. Ruwwe, 242 S.W. 936, 937[1] (Mo.1922); State v. Weber, 298 S.W.2d 403, 406 (Mo.1957).

These cases did arise under the former statute relating to obtaining money under false pretenses (§ 561.370, RSMo 1949), repealed upon the adoption of Section 560.156, RSMo 1969, which includes stealing by deceit (Laws of Mo.1955, p. 505, § A), the statutory basis for the charge in this case.

The state argues that Section 560.156 “was designed to do away with the technical distinctions in the law as related to the crimes of false pretenses, larceny and embezzlement.” See State v. White, 431 S.W.2d 182, 184[1 — 3] (Mo.1968). The state contends that such purpose of the statute will be furthered by holding that a promise made with an intent not to perform is a misrepresentation of an existing state of mind and therefore is sufficient to support a conviction of stealing by deceit.

The “technical distinctions” which Section 560.156 was designed to eliminate related primarily to the distinctions between the various offenses which permitted the “ * * * familiar argument of wrongdoers when they are charged with embezzlement that they are guilty of larceny, or when accused of false pretenses that they should have been accused of embezzlement.” State v. Houchins, 46 S.W.2d 891, 894[4] (Mo.1932). See also State v. Gould, 329 Mo. 828, 46 S.W.2d 886, 889[2, 3] (1932). The statute has been held not to have intended the elimination of basic elements of the offense of larceny. State v. Eye, 415 S.W.2d 729, 730-731[2, 3] (1967). By the same token, there is nothing in the language of Section 560.156 to indicate that the legislature intended to include therein actions which theretofore did not entail criminal liability.

Whether or not this conclusion is in accord with the “better view,” as the state asserts its position to be (See People v. Ashley, 42 Cal.2d 246, 267 P.2d 271, 281-283) (1954), the matter has been resolved by the General Assembly insofar as acts committed from January 1, 1979 are concerned by the revised criminal code which defines the term “Deceit” as used in stealing by that means as follows: “ * * * [P]ur-posely making a representation which is false and which the actor does not believe to be true and upon which the victim relies, as to a matter of fact, law, value, intention or other state of mind * * § 570.-010(7) The Criminal Code, Laws of Mo.1977, pp. 658, 695-696.

The appellant’s motion for a directed verdict of acquittal should have been sustained by the trial court.

Judgment reversed.

All concur.


author: PER CURIAM:

text:
    Melvin Leroy TYLER, Plaintiff-Appellant, v. Chief Deputy WHITEHEAD and Sheriff Charlie Foster, Defendants-Respondents.
    No. KCD 29981.
    Missouri Court of Appeals, Western District.
    June 11, 1979.

      Gary Oxenhandler, Columbia, for plaintiff-appellant.
    Milt Harper, Columbia, for defendants-respondents.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   PER CURIAM:

The circuit court dismissed plaintiff’s petition upon the motion of defendants, and plaintiff has appealed. The defendants asserted several grounds for their motion to dismiss the petition, and the record does not show which of these the court adopted in sustaining the motion. They defend the court’s action only on the ground that the petition did not state a claim upon which relief could be granted. Rule 55.27(a)(6).

The petition, omitting formal parts and omitting the prayer for declaratory judgment, for injunctive relief, and for compensatory and punitive damages, reads as follows:

(1) Plaintiff is a prisoner confined to the Boone County jail at Columbia, Missouri.
(2) Defendants are the Sheriff and Chief Deputy Sheriff of Boone County, Missouri.
(3) Plaintiff alleges that from January 11, 1977, and continuing through January and into February, 1977, defendants in the County of Boone, City of Columbia, Missouri,
(a) Subjected or caused to be subjected the plaintiff to cruel and unusual punishment by inflicting mental and physical cruelty upon plaintiff by denying him equal treatment as other prisoners; subjecting the plaintiff to a dungeon cell for more than thirty days without regular showers, exercise, exposure to sunlight, news media, radio, TV; and
(b) By hindering plaintiff in his rights to access to courts by willfully and deliberately seizing the plaintiff’s typewriter by their command; by preventing plaintiff from properly and adequately representing himself on plaintiff’s pending civil and criminal litigation,
(c) That defendants willfully and maliciously caused plaintiff to be conferred to a dungeon cell without proper ventilation, exercise, shower, access to news media and equal treatment as other prisoners to hinder, deny or obstruct plaintiff in his right to access to courts.
(d) All defendants’ acts were done (without procedural due process) deliberately, willfully and maliciously and without authority of law, without motive, right to be heard, to a hearing, impartial review and to call witnesses, to cross-examination and confrontation.

We have concluded that the petition is sufficient as against a motion to dismiss for failure to state a justiciable claim. We must therefore reverse and remand to the trial court for further proceedings.

We remind ourselves of the familiar procedural rule that in searching the petition for a justiciable claim for relief, as against a motion to dismiss, the petition is viewed favorably to the pleader, giving to the petition the benefit of every reasonable intendment. Butler v. Circulus, Inc., 557 S.W.2d 469, 472 (Mo.App.1977); Euge v. Golden, 551 S.W.2d 928, 931 (Mo.App.1977); Associated Grocers’ Co. of St. Louis, Mo. v. Crowe, 389 S.W.2d 395, 399 (Mo.App.1965). The petition under the challenge of a motion to dismiss is judged with broad indulgence. What proof the plaintiff may adduce is quite another thing, but that is no concern of the court at this stage of the case. The presence or absence of viable evidence may be tested short of trial by motion for summary judgment. Rule 74.04.

We believe the petition does state a justi-ciable claim under 42 U.S.C.A. § 1983. That statute reads as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

If the petition states a claim for relief under 42 U.S.C.A. § 1983, the officers do not enjoy any absolute and unqualified immunity. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Cohen v. Norris, 300 F.2d 24, 33 (9th Cir. 1962); Beauregard v. Wingard, 230 F.Supp. 167, 174 (S.D.Cal.1964).

A claim for relief under 42 U.S.C.A. § 1983 is stated if the petition charges, first, conduct which is alleged to have subjected the plaintiff to a deprivation of rights, privileges or immunities secured by the U. S. Constitution, and, second, that such conduct was by one acting under color of state law. Jennings v. Davis, 476 F.2d 1271, 1275 (8th Cir. 1973); Jones v. Hopper, 410 F.2d 1323, 1326 (10th Cir. 1969).

As to the first requirement, the petition does not point to a particular constitutional right of which plaintiff has been deprived, but it need not do so, if we can ascertain from the facts alleged that such a constitutional right exists. Gregg v. State of Tennessee, 425 F.Supp. 394, 395 (E.D.Tenn. 1976); Williams v. Stone, 339 F.Supp. 1298, 1299 (E.D.Tenn.1971).

The Eighth Amendment (prohibiting cruel and unusual punishment) and the Due Process Clause of the Fourteenth Amendment to the United States Constitution vouchsafes to prisoners—especially to pretrial detainees who have not been convicted, such as this plaintiff—the right to detention facilities providing ventilation, outside exposure, and decent hygiene; the right to access to materials for correspondence and pursuit of litigation; and the right to access to newspapers and the like. O’Bryan v. County of Saginaw, Mich., 437 F.Supp. 582, 599-600 (E.D.Mich.1977); Ahrens v. Thomas, 434 F.Supp. 873 (W.D.Mo.1977), modified on other grounds, 570 F.2d 286 (8th Cir. 1978); Rhem v. Malcolm, 371 F.Supp. 594 (S.D.N.Y.1974), modified on other grounds, 507 F.2d 333 (2d Cir. 1974). In fact,

Pre-trial detainees are no more than defendants waiting for trial, entitled to the presumption of innocence, a speedy trial and all the rights of bailees and other ordinary citizens except those necessary to assure their presence at trial and the security of the prison. In providing for their detention, correctional institutions must be more than mere depositories for human baggage and any deprivation or restriction of the detainees’ rights beyond those which are necessary for confinement alone, must be justified by a compelling necessity. Detainees of the Brooklyn House of Detention v. Malcolm, 520 F.2d 392, 397 (2d Cir. 1975).

The petition therefore fairly states a deprivation of rights secured by the United States Constitution.

The petition also states facts sufficient to show the alleged acts were done by the defendants under color of state law. It therefore satisfied the second requirement. It says that the offending conduct was by the defendants as sheriff and deputy sheriff respectively of Boone County, and that plaintiff was a prisoner in the Boone County jail. The sheriff is charged by state statute with keeping the jail and all its prisoners, § 221.020, RSMo-1969. The deputy sheriff has “all the powers and may perform any of the duties” of the sheriff. § 57.270, RSMo 1969. That statute placed the defendants in position to perform the acts which are complained of, and they were done in connection with the duties which it imposed upon them. Cohen v. Norris, supra; Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

We inquire whether a § 1983 action is cognizable in our state courts, or whether the Federal courts have exclusive jurisdiction of such cases. Our Supreme Court has concluded that our state courts have concurrent jurisdiction of these cases with the Federal courts. Shapiro v. Columbia Union Nat’l Bank & Trust Co., 576 S.W.2d 310, 316 (Mo. banc 1978). To the same effect, see Brown v. Chastain, 416 F.2d 1012, 1014 (5th Cir. 1969); Young v. Board of Ed. of Fremont County School District, RE-3, 416 F.Supp. 1139, 1140-1141 (D.C.Colo.1976); Bennun v. Board of Governors of Rutgers, 413 F.Supp. 1274, 1278-9 (D.C.N.J.1976); New Times, Inc., v. Arizona Board of Regents, 110 Ariz. 367, 519 P.2d 169, 176 (Ariz. banc 1974).

In fine, the petition is sufficient as against a motion to dismiss for failure to state a justiciable claim.

It is our business here to decide that narrow issue whether the petition states any claim for relief—which we have decided in the affirmative—and not what relief is appropriate. State v. Consolidated School District No. 4 of Iron Cty., 417 S.W.2d 657, 659 (Mo. banc 1967). However, since the petition in order to survive must show the plaintiff entitled to some relief, and in view of the necessity for the trial court to deal with further questions, we will address ourselves to the relief sought.

The petition describes past events or occurrences. It does not purport to describe a general condition throughout the jail, to which prisoners are generally subject, and which is a continuing prevailing situation. There is no allegation of any threatened continuance or repetition of the defendants’ acts. The case is unlike such cases as Ahrens, Detainees of the Brooklyn House of Detention, and Rhem, supra, where the court was dealing with prevalent conditions in the jail, to which prisoners were regularly subject. Hence, declaratory judgment and injunctive relief, which was appropriate in those cases, is inappropriate under the allegations of this petition, and no claim therefore is stated. United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); Magenheim v. Board of Education, 347 S.W.2d 409, 416-417 (Mo.App.1961); Hurtgen v. Gasche, 227 S.W.2d 494, 498 (Mo.App.1950).

The only relief for which any claim is stated in the case before us is compensatory and punitive damages. A sheriff or deputy sheriff would not be liable in damages to prisoners because of the construction or state of repair, or the location of windows, or other conditions which' would require the expenditure of funds and thus not be under the sheriff’s control. But this petition, at least by implication, says that the defendant officers wrongfully chose in their discretion to remove the plaintiff from one part of the jail — -presumably not subject to the same criticisms — to the unventilated and windowless cell, where they kept him without sufficient exercise and showers, without access to the radio, TV, and other news media, and without his typewriter. In § 1983 cases, compensatory damages are available upon proof of actual damage. Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 1047-49, 55 L.Ed.2d 252 (1978); Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). Punitive damages are also awarded in a proper case. Silver v. Cormier, 529 F.2d 161, 163 (10th Cir. 1976); Stengel v. Belcher, 522 F.2d 438, 444 (6th Cir. 1975); Spence v. Staras, 507 F.2d 554, 558 (7th Cir. 1974).

The case is remanded to the trial court for further proceedings.

      . A defense of “partial immunity” based upon the officer’s good faith — which so far as we can see is no immunity at all, but simply an affirmative defense of good faith — must be affirmatively asserted and cannot be advanced at this stage by motion to dismiss the petition. Imbler v. Pachtman, 424 U.S. 409, 419 n.13, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Scheuer v. Rhodes, 416 U.S. 232, 240, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Pierson v. Ray, 386 U.S. at 557, 87 S.Ct. 1213; Donovan v. Reinbold, 433 F.2d 738, 744 n.3 (9th Cir. 1970).


author: MANFORD, Judge.

text:
    FAIRMONT FOODS COMPANY, Respondent, v. STATE MILK BOARD et al., and Kansas City, Missouri, Appellants.
    No. 30035.
    Missouri Court of Appeals, Western District.
    June 11, 1979.

      Aaron A. Wilson, City Atty., Rex G. Bo-stwick, Asst. City Atty., Kansas City, for appellants.
    John J. Kitchin, Kansas City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Direct appeal from summary judgment upon petition for damages for double payment of milk license fees. Affirmed.

This case was tried upon a stipulation of the facts. Review is made pursuant to Rule 73.01 upon both the facts and the law. Those facts pertinent to disposition of this appeal are presented.

Appellant, City of Kansas City, Missouri, hereinafter referred to as the City, is a charter municipality, and pursuant to its ordinances, had authority, prior to August 1, 1973, to license milk producers and processors.

Appellant, State Milk Board, hereinafter referred to as the Board, was created by legislation effective August 13, 1972.

Respondent is a milk producer and processor within the corporate limits of the City.

The City, prior to August 1, 1973, was authorized to conduct its own milk inspection and to issue, permits for operation. Authority for this inspection and permit program was the Fluid Milk and Fluid Milk Products Law of 1963. The City adopted its local ordinance, Kansas City, Missouri Rev. Ordinances Ch. 15, § 15.104(a) and § 15.104(b) (1967) [hereinafter referred to as Ordinance § 15.104(a) and Ordinance § 15.104(b)]. These sections are set forth verbatim for reasons which become clear in the remainder of this opinion.

“Sec. 15.104. Permit fees and permits.
(a) Each applicant for a permit under this article shall pay the appropriate initial permit fees at the time the permit is applied for, and shall pay annual permit renewal fees at the beginning of each additional year. The fees paid shall be based on the following schedule:
INITIAL PERMIT FEES
Milk plant . $100.00
Distributor of milk and milk products (operating independently of a milk plant). 25.00
Receiving station. 50.00
Transfer station . 25.00
Milk producer. 10.00
Milk hauler. 5.00
Milk hauler truck - Permit required, but no fee—
ANNUAL PERMIT RENEWAL FEES
Distributor of milk and milk products (from plants under routine inspection of the Kansas City, Missouri Health Department and operating independently of a milk plant. 10.00
Receiving station. 25.00
Transfer station . 10.00
Milk producer. 5.00
Milk hauler. 3.00
Milk hauler truck — Permit required, but no fee—
(b) Annual permit renewal fee for each milk plant under direct inspection of the Kansas City, Missouri, health department shall be two cents ($.02) per one hundred (100) pounds of milk handled, and shall be paid for all milk and milk products directly processed by said plant or indirectly processed through other plants. The basis of the fee for such processing shall be the monthly reports sent to the office of the milk market administrator, and shall be based on the previous year’s volume.”

The length of time of such permits was one year coinciding with the fiscal year of the City, from May 1 to April 30, of the following calendar year.

Respondent paid the initial $100.00 fee for the year May 1, 1972 to April 30, 1973, and then on May 1, 1973, respondent paid the City the sum of $25,968.23 in conformity with Ordinance § 15.104(b). This payment was for the renewal of respondent’s license from May 1, 1973, to April 30, 1974.

The enactment of the new Fluid Milk_and Fluid Milk Products Act, effective August 13,1972, § 196.931 to § 196.959, RSMo Supp. 1975, removed inspection and the authority to issue licenses and permits from local political subdivisions and vested that authority in the Board. Action by the Board to supercede the local permit and fee program did not take place until July, 1973.

On July 16, 1973, respondent received notice from the Board that effective August 1,1973, respondent would have to pay a fee, calculated upon $.02 per one hundred pounds of product, to the Board. Respondent remitted to the Board the sum of $25,685.03 in compliance with the Board’s order.

Appellant Board and appellant City entered into a contract where the City was to act as agent for the Board regarding inspections and collection of fees and issuance of permits. The effective date of this contract was August 1, 1973.

Respondent learned of this contract and made demand for the return of $19,489.65, which represented the pro rata sum from August 1, 1973 to April 30, 1974. Respondent’s claim was predicated on the premise that a double fee had been collected for this period. There is no dispute as to the remainder of the amount paid as it represents the time from May 1, 1973 to August 1, 1973.

When respondent’s demands were refused, this action was brought against the City and the Board. Judgment was entered and on this appeal, two points are presented.

Appellants contend the trial court erred in granting summary judgment because Ordinance § 15.104(b) operates retrospectively to reimburse the appellants for milk inspection for the previous fiscal year. Appellants also contend the trial court erred in granting summary judgment on appellant’s counterclaim because Ordinance § 15.104(b) said fee was recoverable.

The points raised are herein taken up together.

The entirety of this appeal rests upon the interpretation to be given Ordinance § 15.-104(b). If such interpretation concludes the ordinance is prospective, then respondent is entitled to the judgment entered by the trial court, for respondent has been required to pay twice for the same inspection and permit to do business.

A full reading and interpretation of Ordinance § 15.104(b) leads to the conclusion that said renewal of the license is prospective. The ordinance in general and Ordinance § 15.104(b) in particular, refers to renewal. It is without doubt that such term contemplates and encompasses the ensuing or future months and not those months of the preceding fiscal year.

The fee for the renewal, while determined by application of the rate of $.02 per hundred pounds of product for the preceding twelve month period, merely affixes the amount of the renewal fees and does not impart any form or substance toward making Ordinance § 15.104(b) retrospective.

In this given situation, the City was aware of the change in the law and further contemplated consummation of the contract with the Board. The trial court was correct when it declared the City simply overcharged respondent.

To conclude otherwise would permit the city to collect a “windfall” and such was never expressed or implied by the enactment of § 196.931 to § 196.959 RSMo Supp. 1975, Ordinance § 15.104(b) or the terms of the contract between appellant City and appellant Board.

For the reasons set forth herein, the judgment of the trial court is in all respects affirmed with directions that all costs of this appeal be paid by appellants.

All concur.


text:
    GREATER KANSAS CITY BAPTIST AND COMMUNITY HOSPITAL ASSOCIATION, d/b/a Martin Luther King Jr. Memorial Hospital, Plaintiff-Appellant, v. DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS of Missouri, and John F. Meystrik, Director, Defendants-Respondents.
    No. 30057.
    Missouri Court of Appeals, Western District.
    June 11, 1979.
    Herman M. Shaffer, Charles C. Shafer, Jr., Kansas City, for plaintiff-appellant.
    John F. Gillespie and Rick V. Morris, Jefferson City, for defendants-respondents.
    Before HIGGINS, Special Judge, Presiding, SWOFFORD, C. J., and WELBORN, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge, Presiding.

Appeal from judgment of dismissal of petition for relief from employment security taxes. Appellant contends the court erred in such dismissal on defendants’ motion to dismiss for failure to exhaust administrative remedies and lack of jurisdiction “because King had adequately pleaded it was a party whose rights, status or legal relations were affected by an unconstitutional statute and the * * * objections raised by defendants’ motion were not applicable to King who as a matter of law was entitled to a trial on the merits.” Affirmed.

The statement is taken from appellant’s brief. Plaintiff is a Missouri not-for-profit corporation engaged in providing medical services primarily to the poor. Until 1972, plaintiff enjoyed an exemption from employment security tax based on its status as a corporation organized exclusively for charitable purposes. In 1972, plaintiff lost its exemption when the Employment Security Law was amended to provide that only those charitable concerns employing fewer than four persons in an average business day would be afforded the heretofore unqualified charitable exemption. With its records evincing more than four employees in a typical business day, plaintiff was logically determined to be liable as an employer under Chapter 288 RSMo. Plaintiff paid the assessed employment security tax until the fourth quarter, 1975, when, because of its operating burden, it decided to challenge Section 288.034.8 RSMo under which its exemption was revoked.

Plaintiff in its “Petition for Declaratory Judgment and Injunctive Relief” prayed that the court determine that it was entitled to an exemption from payment of employment security taxes, that defendants be enjoined from collection of delinquent employment security taxes assessments, and that the court order defendants to refund to plaintiff all employment security taxes previously paid.

Respondents’ brief makes certain clarifications to the foregoing. They are consistent with applicant’s statement and plaintiff’s petition, and stand uncontradicted by appellant.

The determination that plaintiff was a liable employer was made in May, 1972; and the amount of its liability for employment security taxes was determined under Section 288.130.3 RSMo:

“A deputy shall make an ex parte determination after investigation but without hearing with respect to any matter pertaining to the liability of an employing unit which does not involve a claimant. The deputy shall promptly notify any interested employing units of each such determination and the reason for it. The division shall grant a hearing before an appeals tribunal to any employing unit appealing from any such ex parte determination provided an appeal is filed in writing within fourteen days following the date of notification or the mailing of such determination to the party’s last known address. In the absence of an appeal any such determination shall become final at the expiration of a fourteen day period * *

Plaintiff was notified of such determination May 17, 1972. No appeal was taken; the determination became final May 31, 1972, and plaintiff paid its employment security taxes for nearly four years until the fourth quarter, 1975, when its operating difficulties surfaced.

Section 288.160.1 RSMo provides:

“If any employer neglects or refused to make a report and payment of contributions as required by this law the division shall make an estimate based on any information in its possession or that may come into its possession of the amount of wages paid by such employer for the period in respect to which he failed to make report and payment, and upon the basis, of said estimated amount compute and assess the contributions and interest payable by such employer, adding to such sum a penalty equal to ten percent thereof. Promptly thereafter, the division shall give to such employer written notice of such estimated contributions, interest and penalties as so assessed, the notice to be served personally or by registered mail, directed to the last known principal place of business of such employer in this state or in any state in the event he has none in this state.”

The assessment so required was made against plaintiff May 21, 1976, for employment security taxes due for the fourth quarter, 1975. Notice of same was given v the same date.

Section 288.160.4 RSMo provides:

“Any employer against whom an assessment is made * * * may petition for reassessment. The petition for such reassessment shall be filed with the division during the thirty-day period following the day of service or mailing of the notice of such assessment. In the absence of the filing of such petition for reassessment the assessment shall become final upon the expiration of such a thirty-day period * *

Plaintiff did not file a petition for review of the assessment made against it, and it became final June 21, 1976. Such assessment was filed with the Circuit Court of Jackson County, pursuant to Section 288.-170 RSMo and it became tantamount to a judgment.

Plaintiff did not seek the evidentiary hearing on the assessment as provided by Section 288.190 RSMo. As a consequence none of the provisions for review in the Labor and Industrial Relations Commission under Section 288,200 RSMo, and subsequently in the counts under Section 288.210 RSMo, were invoked.

The “subsequent assessments” mentioned in plaintiff’s petition were for employment security taxes due for the first three quarters, 1976. Plaintiff has timely filed petitions for review of such assessments for the first and third quarters, 1976, and they are presently within the administrative and judicial review procedures of Chapter 288 RSMo. Such petitions also raise the constitutional issue asserted to be in this present controversy.

Irrespective of plaintiff’s right to resort to the Declaratory Judgment Act and the style of its petition, the substance of the petition is an attempt to challenge administrative determinations made by the Division of Employment Security under Chapter 288 RSMo 1969, as amended.

It is axiomatic in administrative law that before a party can seek the jurisdiction of the court, the party must exhaust administrative remedies. State ex rel. Scott v. Scearce, 303 S.W.2d 175 (Mo.App.1957); State ex rel. Merritt v. Gardner, 148 S.W.2d 780 (Mo.1941); Brinkerhoff-Faris Trust and Savings Co. v. Hill, 19 S.W.2d 746 (Mo. banc 1929). Nor is the Declaratory Judgment Law intended as a substitute for existing remedies or to make the court a legal advisory board. Koenig v. Koenig, 191 S.W.2d 269 (Mo.App.1945); O’Meara v. New York Life Insurance Co., 169 S.W.2d 116 (Mo.App.1943).

The statement demonstrates that the Employment Security Law provides plaintiff existing remedies, and that it has yet to exhaust same. As a consequence, plaintiff cannot, under guise of a petition for declaratory judgment, challenge administrative decisions long since final.

As stated, Duzer v. Industrial Commission, 402 S.W.2d 616, 618 (Mo.App.1966):

“ ‘The procedure for obtaining judicial review of an administrative decision * * is ordinarily governed by the * * * statutes and not by the commonlaw or other statutory rules of procedure * *.”
“ ‘As a general rule, the court does not acquire jurisdiction unless the steps prescribed by the statute have been followed and compliance with mandatory provisions of the statute * * * has been held to be a condition precedent to jurisdiction * * V”

Again, the statement demonstrates that plaintiff has not availed itself of provisions for review of its employment security tax liability and the court had no jurisdiction over the present controversy.

Appellant argues also that its action falls within the Administrative Procedure and Review Act, Chapter 536, RSMo.

Chapter 536, supra, applies only in cases where a party has exhausted all administrative remedies, and where no other provision for judicial review is provided by statute. Section 536.100 RSMo. It does not apply to agencies such as the Division of Employment Security which has its own review procedure in Chapter 288, supra. Cohen v. Ennis, 314 S.W.2d 239 (Mo.App.1958).

Judgment affirmed.

All Concur.


text:
    Leo M. MULLEN, M.D., Appellant, v. Kenneth WISE et al., Respondents.
    No. 30088.
    Missouri Court of Appeals, Western District.
    June 11, 1979.
    Haskell Imes, Kansas City, for appellant.
    Michael J. Drape, Kansas City, for respondents.
    Before SOMERVILLE, P. • J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Appeal from order of dismissal for failure to prosecute. Affirmed.

Appellant sought money judgment against respondent and others in Magistrate Court. Appellant’s claim was denied. Appeal was filed, without bond, to the Circuit Court.

Notice of the weekly trial docket was sent to all parties. This notice advised the parties:

“There will be a docket call on Friday, January 20, 1978, at 9:30 a. m. and counsel for all parties should be present if disposition has not been made prior to that time. On Friday, January 20, 1978, defaults, summary dispositions, and dismissals for want of prosecution or for failure to prosecute appeals will be rendered. Those cases for trial will be given specific dates and times during the week of January 23, 1978.”

On January 23, 1978, appellant did not appear, and the order of dismissal giving rise to this appeal was entered. Appellant filed his motion to set aside the dismissal. Upon a hearing before the trial court, the motion was denied.

Appellant sets out one issue on appeal, alleging that the trial court committed prejudicial error by disregarding a misprision committed by the court clerk.

Appellant attempts to shift his responsibility to appear at the designated time and place under the trial court’s weekly trial docket to the clerk of the court under the doctrine of “misprision”. “Misprision” has been defined to include “A clerical error or mistake made in writing or keeping of records.” Black’s Law Dictionary, 1152 (4th ed. 1951).

Appellant alleges a phone conversation was held between the clerk of the trial court and appellant’s counsel and the latter was informed that the appeal had been dismissed as of Friday, January 20, 1978. Appellant’s allegation of misprision is without merit.

Nothing in the record indicates justifiable excuse for failure to appear and no meritorious defense to the dismissal was presented. Ample notice and opportunity to be heard having been afforded appellant, the dismissal did not constitute prejudicial error and such action was within the discretion of the court.

The order of the trial court is affirmed.

All concur.