author: RENDLEN, Judge.

text:
    James HEMPHILL, Jr., Appellant, v. STATE of Missouri, Respondent.
    No. 59931.
    Supreme Court of Missouri, En Banc.
    April 28, 1978.

      Warren H. Kawin, St. Louis, for appellant.
    Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
   RENDLEN, Judge.

James Hemphill appeals from the trial court’s denial of his Rule 27.26 motion to vacate judgment and sentence of forty years imprisonment imposed pursuant to the jury’s guilty verdict for the offense of second degree murder. That judgment of conviction was affirmed on direct appeal in State v. Hemphill, 460 S.W.2d 648 (Mo.1970).

This cause was appealed to the Missouri Court of Appeals, St. Louis District and, after opinion affirming in that court, was transferred here under Rule 83.03 for determination as though on original appeal. Mo. Const. Art. V, § 10.

For his first point appellant contends the trial court’s finding that the state did not deliberately suppress or fail to disclose evidence of the existence of a knife which the victim is alleged to have had when shot by appellant was clearly erroneous because: (1) The Circuit Attorney in the criminal trial knew: (a) there was testimony at the coroner’s inquest that the victim had a knife, (b) that Lee Nalls, brother of the victim, had been convicted of stealing a knife in August of 1967; (2) The Assistant Circuit Attorney at the motion hearing admitted the victim had a knife. Portions of the evidence from the original trial are necessary to an understanding of these contentions.

On January 19, 1968, the victim of this homicide, James Smith, with three companions (his brother, Lee Nalls; his uncle, Robert Haymore, and a friend Anthony Williams) went to a pool hall near Haymore’s home. While there Smith was fatally shot by appellant (defendant there) who, though admitting having shot Smith, maintained it was in self-defense. Appellant testified that while he was arguing with Smith’s younger brother, Smith approached him, putting his hand into his inside pocket as if to go for a weapon and it was then he shot him. Appellant did not see a weapon but defense witnesses, Jackson and Higgins, testified that Smith reached for his inside pocket as if pulling something out before he was shot. They both testified that while Smith was lying on the floor before the police arrived, someone removed a knife from his body. Higgins further testified he could not describe or identify the person who removed the knife and both Jackson and Higgins admitted they had not told the police about the knife. On cross-examination, Jackson also admitted that when first interviewed by the police he stated he knew nothing of the shooting.

Witnesses for the State, on the other hand, testified they saw no knife on the victim and Nalls, brother of the deceased, testified that to the best of his knowledge Smith was not carrying a weapon. Anthony Williams stated he did not see anyone take a knife from Smith’s body and on cross-examination reiterated, “Like I said, I didn’t see anybody take nothing off him, but I still saw James Smith laying there on the floor.” Appellant now asserts the foregoing, coupled with other evidence, indicates the state had possession of the knife or knowledge concerning its whereabouts which it wrongfully suppressed. During trial defense witness Carl Higgins, who as noted above, testified on direct examination that someone had removed a knife from the deceased, admitted on cross-examination he did not know the name of the man who had allegedly removed the knife, and when confronted with apparently prior inconsistent statements from his testimony in the coroner’s inquest he contended the transcript was incorrect. As he described it, “This is where they fouled up the statement. . . ” Pressing the cross-examination, the Circuit Attorney inquired “You never told the policeman about the knife?” “A. The only time the knife was mentioned was during the inquest.”

As stated by this court in State v. Thompson, 396 S.W.2d 697, 700 (Mo.banc 1965), “suppression of (or failure to disclose) evidence in the possession or control of the prosecution which is favorable to defendant and which might be persuasive to a jury, constitutes such a fundamental unfairness as to invalidate a conviction because viola-tive of due process.” While this general statement of the law is correct, petitioner has fallen far short of proving suppression or failure to disclose. The fact that evidence was elicited at the coroner’s inquest from Carl Higgins, later a witness for the defense, indicating that James Smith had a knife, does not establish such is the fact or prove suppression. In addition, the fact that Higgins had so testified at the inquest was as well known to appellant as to the State and it was appellant who called Higgins as a witness eliciting favorable testimony that a knife had been removed from Smith’s person. Defense witness Jackson testified to essentially the same facts and from this we conclude the defense had information equal or superior to that of the State.

Appellant also contends the prosecutor knew that many months earlier Lee Nalls, brother of the victim, had been convicted of stealing a knife (the record indicates it was a dagger) and that this evidence bolsters appellant’s attempt to show the victim had a knife which in turn supports petitioner’s claim of suppression. The trial court properly ruled such was “purely conjecture and speculation.”

During the hearing, movant’s counsel asked witness James Bell (defense counsel in the criminal trial) if he had talked to Nalls since the trial and whether Nalls had told him that the victim had a knife at the time of the slaying. This line of inquiry was objected to as hearsay and during a colloquy with respect to the State’s objection, the following occurred:

“Mr. Kawin: [Petitioner’s counsel] Mr. Nalls would testify that the victim in this original trial did have a knife.
“Mr. Chancellor: [Assistant Circuit Attorney] The State stipulates that is true, the victim did have a knife. (Emphasis ours.) There is no question about that. It was found on his person.
“The Court: And that matter — what was the objection?
“Mr. Chancellor: The objection to what his statement is, what somebody else said in this record would be hearsay. However, the fact that the victim had a knife came out in the first trial.
“Mr. Kawin: Well, there was conflicting evidence.
“The Court: The objection be sustained.
“Mr. Kawin: We make this as an offer of proof, Your Honor.
“The Court: All right.
“Mr. Kawin: Since we don’t have the proof we make it as an offer of proof, Your Honor.
“The Court: All right.”

Appellant now contends the State is bound by Chancellor’s statement that “the victim did have a knife” and reasons from this that the State, having knowledge, must have possessed the knife and suppressed its use as evidence. It is clear from the record of that colloquy that the basis for Chancellor’s statement was the testimony at the original trial. The trial transcript reveals that though there was testimony from defense witnesses Jackson and Higgins that they saw a knife taken from the victim, others testified to the contrary. The disputed fact issue, of knife vis-a-vis no knife, was for the jury. Clearly the Assistant Circuit Attorney was mistaken as to the contents of the transcript and this mistake was recognized by petitioner’s counsel who advised the court that “there was conflicting evidence” on the issue. James Darst, prosecutor in the criminal trial, testified to facts explanatory of and contrary to Chancellor’s statement and stated categorically he had not suppressed evidence concerning any knife. Appellant contends the “stipulation” by Chancellor, coupled with all the circumstances, establishes his point as to the State’s suppression or failure to disclose evidence vital to the defense. We do not agree. While it is important to the orderly administration of the judicial process that admissions and stipulations of counsel when acted upon be given full credence, State v. Levy, 262 Mo. 181, 170 S.W. 1114, 1117 (1914); “[I]mprovident or erroneous statements or admissions resulting from unguarded expressions or mistake should not be binding on the client.” Kansas City v. Martin, 391 S.W.2d 608, 615 (Mo.App.1965).

The statement of fact made by the State’s attorney was a mistake, refuted by the transcript upon which he based his statement. Further, petitioner did not act upon the statement to his detriment and was aware the evidence was in conflict. The testimony of the original trial prosecutor contradicted Chancellor’s statement and there was no evidence presented at the inquest, the trial or at the motion hearing in this proceeding that a knife was recovered or in possession of the State or any person subject to its control. The only testimony concerning its existence came from witnesses whose credibility was brought into question and who could not describe or identify the person that allegedly removed the knife from the victim. This can hardly rise to the level of absolute proof that the victim, James Smith, had a knife on his person at the time of the shooting and that the State had knowledge or possession of such knife and suppressed the same to appellant’s detriment. Neither was the State required, as movant suggests, to call Jackson and Higgins as witnesses because they knew something of the charge against him. State v. Collor, 502 S.W.2d 258, 260[5] (Mo.1973).

In connection with this point petitioner also contends that the State suppressed evidence of the pellet that was removed from the victim. The issue was raised in the motion but we find no reference to that issue in the transcript of the motion hearing or the extensive post-hearing memorandum filed by appellant. Thus the issue, improperly preserved, is not reviewable here. Myrick v. State, 507 S.W.2d 42 (Mo.App.1974). Additionally we note the fact of the pellet’s existence was in evidence and known to appellant who admitted the shooting. Production of the pellet was necessary neither to the prosecution nor the defense, its existence was not concealed nor has there been a showing that failure to produce was prejudicial. See Malone v. State, 461 S.W.2d 727 (Mo.1971). The contention is denied.

Appellant’s next point that there was no evidence showing the victim died after being shot by appellant is a general attack on the sufficiency of the evidence to sustain the verdict, not cognizable in this Rule 27.26 proceeding. Barker v. State, 505 S.W.2d 448 (Mo.App.1974); State v. Schaffer, 454 S.W.2d 60 (Mo.1970); Robinson v. State, 491 S.W.2d 314 (Mo.1973); Bradley v. State, 494 S.W.2d 45 (Mo.1973).

For his third point, appellant contends the forty year sentence for murder in the second degree (1) is excessive under the law and (2) violates his constitutional rights. The punishment authorized by statute for second degree murder is “imprisonment in the penitentiary not less than ten years,” § 559.030, RSMo 1959, and the section declares no durational limit. Read in connection with § 546.490, RSMo 1959, the permissible punishment includes “imprisonment during his natural life, or for any number of years not less than such as are prescribed.” The sentence imposed is within the statutory range and under the circumstances here is not excessive under the law. State v. Stephens, 507 S.W.2d 18, 22 (Mo.banc 1974).

Appellant’s vaguely stated constitutional challenge under this point is the “sentence of forty years for murder in the second degree violates appellant’s constitutional rights.” From the argument we have gleaned the following. In 1968, murder in the first degree was defined by § 559.010, RSMo 1959, as “Every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing . . .” and § 559.020, RSMo 1959, referencing the preceding section defined murder in the second degree as “All other kinds of murder at common law, not herein declared to be manslaughter or justifiable or excusable homicide, shall be deemed murder in the second degree.” Defendant argues that these sections make second degree murder a common law offense which “should be governed by VAMS 556.110,” which provides: “Punishment by virtue of the common law shall in nowise be other than by fine or imprisonment, or both, and such fine shall not exceed one hundred dollars, and the term of such imprisonment shall not exceed two months; nor shall any of the British statutes for the punishment of crimes and misdemeanors be in force in this state.” This contention is without merit. Section 559.020 proscribes certain acts which by statute are declared second degree murder. Among the acts so proscribed are “all other kinds of murder at common law,” which by reference become incorporated in the statute. Section 556.110 contemplates acts not so incorporated and proscribed by statute, which may otherwise be punishable at common law.

Appellant further argues that the punishment here imposed “obviously is predicated upon the provisions of V.A.M.S. § 559.030 in effect at the time of the offense, which states: ‘Upon the trial of an indictment for murder in the first degree, the jury must inquire, and by their verdict ascertain, under the instructions of the court, whether the defendant be guilty of murder in the first or second degree; and persons convicted of murder in the first degree shall suffer death, or be punished by imprisonment in the penitentiary during their natural lives; those convicted of murder in the second degree shall be punished by imprisonment in the penitentiary not less than ten years. (Emphasis supplied.)’ ” Pointing to the term indictment, appellant contends the punishment for murder, either first degree or second degree authorized by § 559.030, is applicable only when charged by indictment, and only when that indictment charged murder in the first degree. Thus, he argues, any second degree murder conviction must stem from a first degree murder indictment to be punishable under § 559.030. A similar argument was considered concerning a defendant tried for an assault with intent to commit a felony in State v. Higgins, 252 S.W.2d 641 (Mo.App.1952). There appellant contended he could not be legally convicted of common assault under § 556.230, RSMo 1949, because he was charged upon an information, not by indictment. Section 556.230 read: “Upon an indictment for an assault with intent to commit a felony, or for a felonious assault, the defendant may be convicted of a less offense; and in all other cases, whether prosecuted by indictment or information, the jury or court trying the case may find the defendant not guilty of the offense as charged, and find him guilty of any offense, the commission of which is necessarily included in that charged against him.” The court summarized appellant’s argument (essentially that of appellant at bar), as follows: “Appellant contends that the foregoing statute must be strictly construed and confined to those cases where one being tried for assault with intent to commit a felony is charged by indictment.” The Higgins court pointed out that in Missouri’s early history, felonies could be prosecuted only by indictment; State v. Bonner, 178 Mo. 424, 77 S.W. 463 (1903), however, by amendment to the constitution in 1900, indictments and informations became concurrent methods for prosecuting felonies. And in 1901, § 2482 was enacted to provide “that trial and all proceedings upon any information filed in a court of record shall be governed by the law and practice applicable to trials upon indictments in said court.” That statute was the predecessor to § 546.-010, RSMo 1959, in force at the time of the offense committed here. The court in Higgins concluded “It is our opinion that said section [546.010], when read in connection with Section 556.230, supra, authorizes a conviction for common assault where the person being tried is charged by information with an assault with intent to commit a felony.” The well reasoned plafl of statutory interpretation in that case is applicable here. We hold that appellant was properly charged under § 559.020 and punished under § 559.030 and the contention is denied.

The fourth point raised by appellant goes to the jury selection process, charging the statutory system constitutionally infirm by its exclusion of recognized groups and classes of persons, thus violating appellant’s rights “to trial by jury and the right not to be deprived of his liberty without due process of law.” Appellant’s complaint seems based on his assertion that doctors and dentists are excluded by statute from jury service. Such contention is without merit because § 494.031 provides exemption for certain individuals from jury service “upon their timely application to the court” and those named include “[a]ny person licensed to engage in and actually engaged in the practice of medicine, osteopathy, chiropractic or dentistry.” Persons in the named classes may opt from jury service but are not automatically excluded. Exemptions of this sort were recognized with approval by this court in State v. Duren, 556 S.W.2d 11, 14 (Mo.banc 1977), wherein it was stated, “Proper exemptions from jury service are permitted to promote the orderly and efficient operation of overloaded judicial systems.” The constitutional complaint is denied.

Appellant alternatively argues that the jury selection process was violated in that doctors and dentists were automatically excluded by action of the jury commissioner rather than requiring timely application to the court for excuse under § 494.031. Contrary to this assertion of fact, the trial court in its finding states, “The jury commissioner testified that the jury panels are picked in accordance with the statute and that no attempt was made to exclude anyone who was legally entitled to serve although some are excluded upon request for good and valid reasons, including doctors for obvious reasons. There is no evidence that any doctor or anyone else who was entitled to serve was systematically excluded.” If there was conflict in the testimony, it was resolved unfavorably to appellant’s position and there is no showing that this decision was clearly erroneous. Blanchard v. State, 504 S.W.2d 180 (Mo.App.1973); Skaggs v. State, 476 S.W.2d 524 (Mo.1972); Crosswhite v. State, 426 S.W.2d 67 (Mo.1968). However, if there was a variance from the statutory selection process sufficient to support a challenge to the array and information thereof was available to appellant, such question should have been raised prior to trial. Appellant’s claim as to improper exclusion came too late. See State v. Hermann, 283 S.W.2d 617 (Mo.1955); see also State v. Hemphill, 460 S.W.2d 648, 650 (Mo.1970).

Appellant next charges ineffective assistance of appellate counsel stemming from his retained counsel’s failure to brief many of the errors alleged in the motion for new trial. On the other hand, respondent asserts that the issue of ineffective assistance of appellate counsel is a claim not properly cognizable by the trial court under Rule 27.26, citing State v. Schaffer, 383 S.W.2d 698 (Mo.1964). In response to a contention similar to that of appellant here, the court in Schaffer stated,

“We are not authorized to consider that contention in this proceeding. This for the reason that if the point should be found to be meritorious it would not result in an order setting aside the judgment of conviction in the trial court. If defendant was denied due process because he did not have counsel on appeal the appropriate relief would be to vacate our judgment affirming the conviction and the cause would then be redoeketed for another hearing in this court.”

Similarly this court in Gerberding v. State, 433 S.W.2d 820, 824 (Mo.1968) stated,

“We do point out however that one claim asserted by movant may not be reached by a motion under Rule 27.26. Movant, in paragraph 8(c), claims that his original appeal was neither briefed nor argued by his counsel, thus depriving him of effective assistance of counsel. We have heretofore held that such a claim is not properly addressed to the trial court and that such relief may not be granted in a proceeding under Rule 27.26. State v. Schaffer, 383 S.W.2d 698, 700[7, 8], In Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33, and Swenson v. Donnell, 8 Cir., 382 F.2d 248, it was held that an indigent defendant is entitled to be represented by counsel on appeal and to have his case briefed by counsel. The defendants in both of those cases had been represented by appointed counsel, neither of whom filed any brief on their original appeal. The absence of such brief entitled those defendants to have the affirmance of their conviction set aside, the appeal redocketed, counsel appointed and directions given to such counsel to file briefs on behalf of said defendants. Such relief was given on motion filed in this court.
“If movant is entitled to relief under the doctrine of Bosler or Donnell, he must seek that relief from this court rather than in a motion filed in the trial court under Rule 27.26.”

In Wilwording v. State, 438 S.W.2d 447 (Mo.1969), involving a proceeding for post-conviction relief, counsel withdrew after trial and had no further connection with the case until he was appointed to pursue the appeal. He then filed an appellate brief and inquired of this court whether he should appear to argue. The court’s response set out in Wilwording, supra at 450, was:

“He was advised that the court liked to have an oral argument, but that it was optional with counsel. Counsel then chose not to argue the case, but to submit it upon briefs. Counsel is a very experienced lawyer, having tried over 300 criminal cases, as this record shows. At no place does it appear that he was in any way ineffective, and the trial court’s findings and conclusions in this and other respects are not clearly erroneous. Cross-White v. State, Mo., 426 S.W.2d 67, 70, 71.”

In the well reasoned concurring opinion, which agreed there was no merit to defendant’s contention, it was stated, “Even if he were entitled to relief on this ground, it could not have been given by the trial court. Such relief would be obtainable only by motion in this court to vacate our judgment affirming the conviction and to re-docket the case for argument.” (Emphasis added.)

The procedure prescribed in Schaffer, Gerberding and the concurring opinion of Wilwording was followed by the Court of Appeals in Roulette v. State, 504 S.W.2d 331, 332 (Mo.App.1973). Recently, however, in Duncan v. State, 520 S.W.2d 123 (Mo.App.1975) and Boyer v. State, 527 S.W.2d 432 (Mo.App.1975), the Court of Appeals reviewed judgments of the trial court on such issues originally entertained by the trial court. In neither case did the State appear to have raised the point or objected to such review by the appellate court. Here however respondent raised the point, contending the issue is not properly cognizable under Missouri Rule 27.26 which authorizes the trial court to set aside a judgment of conviction for infirmities arising from trial proceedings only. Relief from defects in proceedings before the appellate courts are beyond the scope of the remedy and such relief should be sought only in the appellate court of rendition and there by motion to recall the mandate, vacate the sentence of affirmance and redocket the cause for rehearing.

Appellant urges that we declare trial courts, in Rule 27.26 proceedings for post-conviction relief, are authorized to consider the issue of ineffective assistance of appellate counsel, arguing that to hold otherwise would “violate the letter and spirit of the Rule.” He also argues this procedure would keep fact finding hearings in the trial court and avoid burdening the appellate system with such duties. Finally, he claims the action of the trial court entering a judgment of conviction is and should be entitled to be subject to later modification by the trial court. These arguments miss the point. Here the efficacy of the conviction is challenged not for matters occurring in the trial process but for acts or omissions of counsel in the appellate process and their contaminating effect on that appeal. The appellate court, rendering the final judgment in the appeal, is in the best position to rule and determine such issues. It is there the briefs are presented, argument heard and the effect of the conduct of appellate counsel as it bears on the issue of “ineffective assistance” may best be determined. For these reasons we reaffirm our divisional opinions in Schaffer and Gerberding and reassert as proper the course of action prescribed in those cases for dealing with such issues. The point is denied.

Appellant’s final contention is merely a reiteration of arguments hereinabove ruled. The judgment is affirmed.

All concur.

      . All references to Rules are to Supreme Court Rules, V.A.M.R.


source: Caselaw Access Project

author: MORGAN, Chief Justice.

license: Public Domain

text:
    STATE ex rel. the CONSERVATION COMMISSION of the State of Missouri, Relator, v. James T. LePAGE, Director of the Department of Revenue, Respondent.
    No. 60271.
    Supreme Court of Missouri, En Banc.
    April 28, 1978.

      Cyril Hendricks and Joseph A. Derque, III, Jefferson City, for relator.
    J. Michael Davis, S. Joel Wilson and J. Kent Lowry, Asst. Attys. Gen., Jefferson City, for respondent.
    Cullen Coil, Jefferson City, for amici curiae.
   MORGAN, Chief Justice.

In this original proceeding in mandamus, the Conservation Commission of Missouri seeks to compel the Director of Revenue for the State of Missouri to collect (in motor vehicle and trailer transactions) the additional sales tax imposed by amended Article IV of the Constitution of Missouri.

§§ 43(a), 43(b) and 43(c) of Article IV, by initiative petition, were submitted to the voters on November 2, 1976, and upon approval became effective on July 1, 1977.

Of immediate interest is that part of § 43(a) which provides that: “. . .an additional sales tax of one-eighth of one percent is hereby levied and imposed upon all sellers for the privilege of selling tangible personal property or rendering taxable services at retail in this state * * * subject to the provisions of and to be collected as provided in the ‘Sales Tax Law’ and subject to the rules and regulations promulgated in connection therewith . . and, that part of 43(c) which provides that the same “. . . shall be self-enforcing

Respondent, pursuant thereto, began collecting the additional tax on July 1, 1977, including that imposed upon the sale of motor vehicles and trailers. The basic sales tax, reference motor vehicles and trailers, is in § 144.070, RSMo Supp.1975. The added tax, however, was not collected on motor vehicle and trailer transactions ordinarily-collected under § 144.440, but there is no dispute in that regard.

On July 18,1977, respondent advised relator that the tax so imposed (in the opinion of the Department) did not apply to any motor vehicle and trailer transactions and discontinued collecting the same. This proceeding followed and an alternative writ was issued.

The basic issue involves the nature of the tax imposed by § 144.070. Relator contends the added tax applies to all of the Sales Tax Law and specifically § 144.070. Respondent disagrees only as to the latter by submitting that § 144.070, unlike other provisions of the Sales Tax Law and the “wording” of the constitutional amendment, is not a tax upon the seller for the privilege of selling, but is a tax imposed upon the purchaser. Said section does provide that the purchaser of a motor vehicle or trailer shall pay the tax directly to the Director of Revenue at the time said purchaser seeks a certificate of title and registration. In all other sales, the purchaser pays the tax to the seller who in turn pays the tax to the Director.

There has already been a great deal of litigation in Missouri concerning the Sales Tax Law and it should be helpful to review a bit of that history.

In 1965, this court stated:

“. . . our first sales tax was expressly enacted as a gross receipts tax imposed for the privilege of engaging in the business of retail sales This law was repealed in 1935 and replaced by a tax ‘upon every retail sale of tangible personal property . . . ’ Laws 1935, p. 411 et seq. It is significant to note that Missouri, after a trial of approximately one year, thus abandoned the idea of a privilege tax on gross receipts; . . . ” Automatic Retailers of America, Inc. v. Morris, 386 S.W.2d 901, 903 (Mo. banc 1965).

In that case, the court went on to hold that the existing Sales Tax Law was a transaction tax imposed directly upon the purchaser.

The legislature’s response was to amend the Sales Tax Law to contain its present terms.

This court examined the law, as amended, in Fabick and Company v. Schaffner, 492 S.W.2d 737 (Mo.1973) and noted that:

“The legislative purpose in the 1965 amendments to change the state sales tax from a transaction tax to a gross receipts tax could hardly have been more clearly expressed. § 144.021 clearly states that the tax is imposed upon the privilege of selling at retail, with the ‘primary tax burden * * * upon the seller,’ who is required to remit tax at three per cent of his gross receipts. The provision of § 144.080.3 which spelled out that the prior tax was ‘a tax upon the sale’ was repealed.” Id. at 743.

This court again considered the question of whether the Sales Tax Law, as amended in 1965, constituted a tax on the purchaser or the seller and stated, “We reaffirm that the entire tax imposed by Chapter 144 is a gross receipts tax.” (Emphasis added.) Virden v. Schaffner, 496 S.W.2d 846, 848 (Mo.1973).

Finally, the court considered the matter for a third time in Farm and Home Savings Ass’n v. Spradling, 538 S.W.2d 313 (Mo.1976) and again declared that the entire tax is a gross receipts tax imposed upon the seller. Id. at 316.

Relator places great emphasis on the language of this trilogy in support of its contention that the entire tax, including § 144.-070, on motor vehicles and trailers is a gross receipts tax imposed upon the seller.

Respondent correctly points out that none of the three cases dealt specifically with the motor vehicle and trailer provisions. Respondent further points out that in § 144.-070 the purchaser pays the tax directly to the director of revenue, eliminating the seller as a middle man for passing the tax along. For this reason, respondent suggests the motor vehicle and trailer sections are different in that the real and legal incidence of the tax falls upon the purchaser in § 144.070.

However, the fact that the purchaser directly pays the tax on motor vehicles and trailers does not convince us that the “legal incidence” of the tax is upon the purchaser. We see no real distinction in this regard, between the bulk of the Sales Tax Law, which is covered by a bracket system for payment, and § 144.070. In both cases it is the purchaser who really bears the brunt of paying the tax. The difference is only as to whom he pays that tax. With the bracket system he pays it to the seller who then remits. In reference to § 144.070, the middle man is simply eliminated for collection purposes.

It is worth noting that under the bracket system, § 144.060 requires the purchaser to pay the tax to the seller, providing punishment for a misdemeanor in the event of willful or intentional refusal to pay. § 144.-080 prohibits any seller from advertising that he will absorb the tax, again under penalty of a misdemeanor. Thus, it is clear that while this court has referred to “. . . The seller as the person upon whom the primary obligation to pay the sales tax is imposed . . .’’in reality the purchaser or consumer foots the ultimate bill under the Sales Tax Law. Yet, that has not prevented this court from finding repeatedly that the tax, in its entirety, is a gross receipts tax upon the seller. In Farm and Home Savings Ass’n v. Spradling, supra, this court clearly stated:

The sales tax is a tax upon the gross receipts of the seller. The fact that section 144.060, RSMo 1969, imposes the duty upon the purchaser to pay the amount of the tax to the seller does not alter the legal nature of the tax. In Ferrara v. Director, Division of Taxation, 127 N.J.Super. 240, 317 A.2d 80, 83 (1974), it was said, ‘. . . the mere fact that it may be universally recognized that the ultimate economic burden of a tax is passed on to the consumer does not determine the legal incidence of the tax. Traditionally, the economic burden of all taxes, like costs in general, is passed down to the consumer level.’ See also Martin Oil Service, Inc. v. Department of Revenue, 49 Ill.2d 260, 273 N.E.2d 823 (1971), cert. denied, 405 U.S. 923, 92 S.Ct. 961, 30 L.Ed.2d 794.

This case, obviously, diminishes the weight of respondent’s argument that if the true incidence of the tax falls on the purchaser, the legal incidence also falls on the purchaser. In this regard, § 144.070 simply provides for a different manner of collecting the tax in the case of motor vehicles and trailers and does not purport to impose a wholly different type of tax.

A careful reading of pertinent sections of Chapter 144 leads to the same conclusion.

§ 144.020.1 states: “A tax is hereby levied and imposed upon all sellers for the privilege of engaging in the business of selling tangible personal property or rendering taxable service at retail in this state.”

§ 144.021 states that: “The primary tax burden is placed upon the seller . . .” That section refers to § 144.070 only to say it is excluded to “. . . the extent to which a seller is required to collect the tax from the purchaser . . .” under the provisions of § 144.285.

§ 144.030 deals with exemptions from the provisions of the Sales Tax Law and makes no mention of motor vehicles and trailers.

§ 144.070 specifically refers to the tax provided under §§ 144.010 to 144.510, indicating that the tax itself is levied in another section and that there is no unique and separate tax for motor vehicles and trailers.

We find no language in these sections that would indicate that § 144.070 creates a separate tax. This section seems merely to make a special provision for the collection of the general sales tax in regard to motor vehicles and trailers and nothing more. We will not read into a tax exemptions that do not clearly appear therein. Farm and Home Savings Ass’n v. Spradling, 538 S.W.2d 313, 319 (Mo.1976).

Respondent refers to § 144.020.1(8) as evidence that the legislature has long treated motor vehicle and trailer transactions differently from other transactions which are subject to the general sales tax. However, that subsection merely indicates that the tax paid as provided in § 144.070 (and • § 144.440 not in dispute here) shall be paid as provided in that section and that “. . .no such tax shall then be collected on the rental or lease of motor vehicles and trailers, except as provided in § 144.-070; . . .”

Again, this merely indicates a different manner of collection of the tax. If the legislature had intended to create a distinct tax apart from the general sales tax on these transactions, it would have expressed itself more definitively. Words used in statutes are to be considered in their plain and ordinary meaning to ascertain the intent of the lawmakers. State v. Kraus, 530 S.W.2d 684 (Mo. banc 1975). We find no clear intent to distinguish a tax on motor vehicles and trailers from the rest of the Sales Tax Law except as to the manner of collection.

Finally, respondent suggests that if relator’s position is sustained, the sales tax would be interpreted as being imposed upon the seller for the privilege of selling, but would be measured by the degree to which another person (the purchaser) exercised a privilege unique to him, that is, making application for title and registration at the time and in the manner required by law. Respondent argues that such a result would create a situation in which the “thing” taxed, the privilege of selling, is not taxed uniformly and thus long-standing principles of constitutional law would be contravened.

Again, we acknowledge the difference in the manner of collection between the bracket system and § 144.070. Under the bracket system, § 144.060 makes it a misdemean- or for any purchaser to fail to pay a seller the sales tax. Further, the seller is not relieved of his obligation to pay the state the sales tax even though unable to collect it from the purchaser. Finally, under the bracket system, the seller must file a written return on the sale. Under the motor vehicle and trailer section, it is not a misdemeanor for the purchaser to fail to pay, nor is the seller still liable if the purchaser does not pay, nor must the seller file a return.

The difference in manner of collection and enforcement is clear. Under § 144.070 the seller is not liable for a purchaser’s non-payment and the purchaser is not criminally liable for his own non-payment. However, § 301.190 does make it unlawful for any person to operate in this state a motor vehicle or trailer required to be registered under the provisions of the law unless a certificate of ownership has been issued. Thus, a sanction for enforcement does exist, albeit different from that used under the bracket system.

That difference is not crucial. It is the settled law of this state that: “It is the levy or assessment of the tax which must be uniform and not its means of enforcement." Hammett v. Kansas City, 351 Mo. 192, 173 S.W.2d 70, 73 (1943), citing Wheir et al. v. Dye et al., 105 Mont. 347, 73 P.2d 209, 214.

Further, . the Constitution [of the United States] does not require uniformity in the manner of collection. Uniformity in the assessment is all it demands.” Tappan v. Merchants’ National Bank, 86 U.S. (19 Wall.) 490, 505, 22 L.Ed. 189 (1873).

Thus, we find no constitutional difficulty in holding that § 144.070 remains a tax, like the rest of the Sales Tax Law, upon gross receipts of the seller for the privilege of selling, with a different manner of collection and enforcement than is utilized for the rest of the Sales Tax Law.

For the above reasons, we hold that Article IV, § 43(a) does impose an additional sales tax of one-eighth of one percent upon motor vehicle and trailer transactions.

The alternative writ of mandamus heretofore issued by this court, directing the respondent to collect said tax, is hereby made peremptory.

All concur.

APPENDIX

Section 43(a). Sales tax, use for conservation purposes. — For the purpose of providing additional moneys to be expended and used by the Conservation Commission, Department of Conservation, for the control, management, restoration, conservation and regulation of the bird, fish, game, forestry and wildlife resources of the state, including the purchase or other acquisition of property for said purposes, and for the administration of the laws pertaining thereto, an additional sales tax of one-eighth of one percent is hereby levied and imposed upon all sellers for the privilege of selling tangible personal property or rendering taxable services at retail in this state upon the sales and service which now are or hereafter are listed and set forth in, and, except as to the amount of tax, subject to the provisions of and to be collected as provided in the “sales Tax Law” and subject to the rules and regulations promulgated in connection therewith and an additional use tax of one-eighth of one percent is levied and imposed for the privilege of storing, using or consuming within this state any article of tangible personal property as set forth and provided in the “Compensating Use Tax Law” and, except as to the amount of the tax, subject to the provisions of and to be collected as provided in the “Compensating Use Tax Law” and subject to the rules and regulations promulgated in connection therewith.

Section 43(b). Use of revenue and funds of conservation commission. — The moneys arising from the additional sales and use taxes provided for in section 43(a) hereof and all fees, moneys or funds arising from the operation and transaction of the Conservation Commission, Department of Conservation, and from the application and the administration of the laws and regulations pertaining to the bird, fish, game, forestry and wildlife resources of the state and from the sale of property used for said purposes, shall be expended and used by the Conservation Commission, Department of Conservation, for the control, management, restoration, conservation and regulation of the bird, fish, game, forestry and wildlife resources of the state, including the purchase or other acquisition of property for said purposes, and for the administration of the laws pertaining thereto, and for no other purpose.

Section 43(c). Effective date — self enfor-cibility. — The effective date of this amendment shall be July 1, 1977. All laws inconsistent with this amendment shall no longer remain in full force and effect after July 1, 1977. All of the provisions of sections 43(a)-(c) shall be self-enforcing except that the general assembly shall adjust brackets for the collection of the sales and use taxes.

      . Attached hereto in an appendix. -


author: FINCH, Judge.

text:
    FRANCISCAN TERTIARY PROVINCE OF MISSOURI, INC., a corporation, Appellant-Respondent, v. STATE TAX COMMISSION of Missouri et al., Respondents-Appellants.
    No. 59788.
    Supreme Court of Missouri, En Banc.
    April 28, 1978.

      Francis C. Flynn and Mark M. Wenner, St. Louis, for appellant-respondent.
    James J. Wilson, Associate City Counsel- or, St. Louis, for respondents-appellants, State Tax Commission.
   FINCH, Judge.

The Chariton Apartments, operated by Franciscan Tertiary Province of Missouri, Inc. (Franciscan) as an apartment building to house the elderly, was assessed for ad valorem tax purposes for 1973 by the Assessor of the City of St. Louis. Contending that the property was exempt from ad valo-rem taxation under the terms of § 137.-100(6) because used exclusively for charitable purposes, plaintiff appealed to the State Tax Commission (Commission) which affirmed. On further appeal, the circuit court upheld the ruling that the property was not exempt but reversed and remanded the decision of the Commission on the ground that the assessed valuation found was excessive. The Commission was directed on remand to determine a proper deduction to be allowed for “economic obsolescence” by reason of the restrictions in the agreement between the government and Franciscan under which the property was developed. Cross-appeals by Franciscan and the Commission were taken to this court, Franciscan appealing from the decision that the property was not exempt and the Commission from the decision that the valuation was excessive. We have jurisdiction because construction of the revenue laws of the state is involved. We reverse and remand with directions.

The first question to be considered is whether this apartment building for older people was used exclusively for charitable purposes and, hence, was exempt from ad valorem taxation. As the Commission recognizes in its brief, the facts, insofar as they relate to the issue of whether the building should be exempt as being used for charitable purposes, are undisputed.

Franciscan was incorporated as a Missouri not-for-profit corporation in 1968 for the stated corporate purpose of providing, on a nonprofit basis, rental housing and related facilities and services for elderly or handicapped families and persons. Said facilities and services were to be specially designed to meet the physical, social and psychological needs of the aged or handicapped and to contribute to their health, security, happiness and usefulness in longer living.

Soon after its incorporation, Franciscan entered into a cosponsorship program with the federal government for the construction of an apartment building to house the elderly. Subsequently, Franciscan contracted for construction of Charitan Apartments, to be financed under the provisions of § 236 of Title 12, Section 1701 U.S.C., the “Senior Citizen Housing Act of 1962.” The Congressional purpose stated in the Act was:

“The Congress finds that there is a large and growing need for suitable housing for older people both in urban and rural areas. Our older citizens face special problems in meeting their housing needs because of the prevalence of modest and limited incomes among the elderly, their difficulty in obtaining liberal long-term home mortgage credit, and their need for housing planned and designed to include features necessary to the safety and convenience of the occupants in a suitable neighborhood environment. Congress further finds that the present programs for housing the elderly under the Department of Housing and Urban Development have proven the value of Federal credit assistance in this field and at the same time demonstrated the urgent need for an expanded and more comprehensive effort to meet our responsibilities to our senior citizens.”

Franciscan obtained a loan from a private mortgage company for $2,069,000, the total cost of the project. It gave a note and deed of trust on the property in question for said amount, the note bearing interest at 8½% per annum plus a mortgage insurance premium of ½% per annum.

The eleven-story apartment building was completed in 1972. It is a reinforced concrete structure, faced with brick. All interior partitions and finish materials are noncombustible and the building has a fire alarm system. The building contains 122 apartments of which 80 are efficiency apartments of one room and a bath and 42 are one-bedroom apartments containing a sitting room, a bedroom and bath. Each floor has a small laundry room. Basic utilities are furnished. On the main floor is the manager’s office, a caretaker’s apartment, a large communal lounge complete with kitchen and other facilities and a mechanical equipment area.

The residents are provided with numerous activities, such as crafts, books, movies, speakers, card parties, discussion groups, short trips for shopping and sightseeing and similar programs. The project is nondenominational in accordance with HUD regulations but religious guidance and spiritual aid is provided by visiting priests of a nearby church.

Periodic physical checkups are held at Chariton but it is not equipped or operated as a nursing home. Patients requiring such care would have to move to such a facility. There is no provision in the operation of Chariton for payment of such expenses.

If Chariton was to be a self-sustaining operation, that is, one in which income from rent was at least equal to operating expenses plus mortgage payments, rentals charged would have been $265.50 per month for the efficiency units and $326.00 per month for the one-bedroom units. In recognition of the fact that rentals in such amounts would be beyond the ability of lower income families and persons to pay, Congress authorized the Department of Housing and Urban Development (HUD) to make interest reduction payments on behalf of the owner of rental housing projects designed for occupancy by lower income families, such amounts not to exceed the difference between the monthly payments for principal, interest and mortgage insurance premium which the owner is obligated to pay and the monthly payment for principal and interest the owner would be required to pay if the mortgage bore interest at the rate of 1% per annum. HUD administers the interest subsidy and it sets maximum rentals which may be charged where a subsidy is provided. When rentals have been fixed, they may be changed only with HUD’s approval.

Under the agreement between Franciscan and the federal government, HUD was to determine a maximum basic rental charge on the basis of the project being operated with payments by Franciscan on the mortgage of principal and interest at 1% per annum. This was done on the premise that HUD would make maximum interest reduction payments authorized by the Act. On that basis HUD fixed maximum rental rates at $105.00 per month for the efficiency apartments and $126.29 per month for the one-bedroom apartments.

In fact, the subsidy actually paid by the government on behalf of Franciscan has been approximately 67% of the difference between payments due from Franciscan under its note and deed of trust and what those payments would have been if the interest rate had been 1% per annum. HUD has not been able to make larger subsidy payments due to the fact that Congress did not appropriate enough money to completely fund all of these programs. Since rentals charged were fixed on the basis of payment in full of the interest subsidy, they have not been sufficient to cover the deficiencies in the amounts paid by the government. As a result, these deficiencies have been paid by Franciscan or on its behalf by related organizations from funds other than rentals from the building. There was testimony that for the year ending June 30, 1973, the auditor’s report disclosed a net loss for a one-year operation of the Apartments of $86,596.48. During this period rentals were obtained for the entire 12-month period, but mortgage payments were made for only seven months. The deficiency would have been greater if mortgage payments had been made for the entire 12-month period.

In addition to payment of the operating deficit resulting from the reduced federal subsidy, Franciscan contributed $34,000 in initial organizational and construction expenses, obtained additional land for which it gave a note for $35,000 to the Franciscan Fathers (which testimony indicated had not been and would not be paid), and provided other services (an estimated $50,000 for services of Father Mark Haegner, OFM, a housing consultant recognized as such by HUD; $6,000 for services of Sister Elizabeth, an activities director; and $2,000 in bookkeeping services).

Under the agreement and program, applicable regulations are issued by HUD. In this instance they provided that in order to qualify for the program, tenants must be 62 years of age or older, or physically handicapped or occupying substandard housing. In addition, tenants must have income below the maximum amounts specified for the area. In this instance HUD fixed those amounts at $6,480 for one person or $7,020 for two persons. There was no limitation on the amount of assets. Evidence as to the financial status of tenants was that 79% had incomes of less than $4,800, 63% had less than $4,000 and 42% had less than $3,000 gross per annum. Ninety-five per cent of the residents had assets in excess of $5,000, but only a few in excess of $8,000 to $10,000.

Franciscan administered, through HUD, a rent subsidy program available to persons whose monthly income was less than four times their monthly rental. Up to 20% of the apartments could be occupied by persons receiving rent assistance from the federal government. At the time of suit, 23 of the 142 tenants were receiving such assistance. The amount of such supplement is the difference between the monthly rental charge and one-fourth of the tenant’s income.

Franciscan passed a resolution to the effect that no one would be evicted if unable to pay the rent and not successful in obtaining a federal rent supplement. The resolution also provided that Franciscan would provide food or clothing or the cost of medical treatment, if needed and the tenant was unable to pay therefor. At the time of trial, it had not been necessary to make use of these provisions for assistance by Franciscan.

In denying Chariton a charitable exemption, the Commission stated that the tenants were neither infirm nor indigent but were self-sustaining both from a physical and a financial standpoint. It concluded that even though there is a growing need to attend to the needs of the elderly and the activities provided by Franciscan were extensive and worthwhile and were beneficial to the physical, spiritual, social and psychological needs of the tenants, still the tenants were not shown to be likely burdens upon society or the government. It further stated that “[T]he activities of the petitioner,' while laudable, highly desirable, and most valuable, are nevertheless not ‘charitable’ in that what is being done, if undone, would have to be performed by some governmental agency.” Accordingly, the Commission found that the apartment building was not exempt from taxation under the charitable exemption statute.

The Commission maintains that same position in this court, citing and relying particularly on Defenders’ Townhouse, Inc. v. Kansas City, 441 S.W.2d 365 (Mo.1969); Paraclete Manor of Kansas City v. State Tax Commission, 447 S.W.2d 311 (Mo.1969); and Westminster Gerontology Foundation, Inc. v. State Tax Commission, 522 S.W.2d 754 (Mo.1975). It contends that this case is not governed by Missouri United Methodist Retirement Homes v. State Tax Commission, 522 S.W.2d 745 (Mo.1975), in which a charitable exemption was permitted. It also asks for clarification as to what criteria shall govern whether a charitable exemption is to be granted for retirement projects for the elderly. However, the request is limited to a resolution of questions as between Defenders’ Townhouse and Missouri United Methodist. The Commission suggests that considerable litigation has arisen since the decision in Missouri United Methodist and that clarification for the Commission and courts is needed.

In response, Franciscan argues that this case is governed by Missouri United Methodist and that the Commission erroneously determined the question of charitable exemption on the basis of the status of the objects or beneficiaries of the project (here the tenants of the apartment) and would limit charitable exemptions to instances in which relief and assistance is given to the destitute. This, says Franciscan, is not the proper test under Missouri cases for determining whether property is exempt from taxation on the basis that it is used for purely charitable purposes. Various cases construing § 137.100(6) and the constitutional language from which it is derived, including Salvation Army v. Hoehn, 354 Mo. 107, 188 S.W.2d 826 (banc 1945); Bader Realty & Inv. Co. v. St. Louis Housing Authority, 358 Mo. 747, 217 S.W.2d 489 (banc 1949); and YMCA v. Sestric, 362 Mo. 551, 242 S.W.2d 497 (banc 1951), are cited and discussed.

An analysis of the cases relied on to support those respective positions has led us to the conclusion that the cases considering a charitable exemption for housing for the elderly and those considering such an exemption with reference to property used for other purposes have interpreted the words “used exclusively * * * for purposes purely charitable” differently and have established different requirements for granting an exemption under such language. It is beyond question that the language enacted may have but one meaning to be consistently applied in all areas. For this reason, we have concluded that we must review the interpretation which has been placed on this language in all categories of exemption claims rather than attempt the limited clarification sought by the Commission with reference to cases involving only retirement homes. It is only by this broader inquiry that we can arrive at a uniform interpretation of § 137.100 (and Mo.Const., art. X, § 6) and thereby establish criteria to be considered in all cases arising thereunder.

The leading case in Missouri on what property is to be exempt from ad valorem taxation under the terms of the statute implementing Mo.Const., art. X, § 6, is Salvation Army v. Hoehn, 354 Mo. 107, 188 S.W.2d 826 (banc 1945). That case involved a claim of exemption for the 1943 tax year for the Evangeline Residence, a 13-story building in which the Salvation Army housed young women. The first two floors contained the lobby, a social room large enough to accommodate 35 people, a dining room and kitchen, a library, a chapel, offices, a manager’s apartment, a storage room, two guest rooms, and a linen room. Each of the other 11 floors contained 17 bedrooms, each with a bath and telephone. The charges for rooms, including meals, were substantially less than those charged at commercial establishments in the area. Women and girls desiring to live there completed application forms and occupants were selected on the basis of the facts stated therein. Needy and deserving applicants were subsidized by a reduction in the rates regularly charged.

During a four-year period preceding the suit, the Salvation Army had suffered losses in the operation of Evangeline Residence of $21,754.93, $8,218.49 and $3,842.70 during the first three years, and a gain during the tax year under review of $4,427.29. The losses had been made up from general funds of the Salvation Army.

Salvation Army brought a declaratory judgment action seeking a declaration that Evangeline Residence was exempt from taxation plus an injunction against collection of taxes on the property. The petition alleged and the evidence established that the purpose of Evangeline Residence was to promote the welfare of girls and women, particularly those of lower earning capacity and income. It was intended to provide them “with board and lodging and a place of study of a homelike character under wholesome and decent influences and with proper protection and surroundings calculated to inculcate Christian character and develop good citizenship” at a price, regardless of cost, within their ability to pay.

After determining that Salvation Army was a not-for-profit organization, the court held that Evangeline Residence was entitled to exemption from taxation because used exclusively for charitable purposes. In its opinion the court overruled two earlier cases in which the YMCA had been denied exemptions, holding that the charitable exemption provision had been too narrowly construed in those cases. In so ruling, the court said at 188 S.W.2d at 830:

“We think that the construction given Sec. 6, Art. 10, Constitution, in the second and third YMCA cases is too strict, that is, not reasonable. Such construction confines the concept of charity solely to the relief of the destitute, and excludes all humanitarian activities, though rendered at cost or less, which are intended to improve the physical, mental and moral condition of the recipients and make it less likely that they will become burdens on society and make it more likely that they will become useful citizens. Prior to the second YMCA case the legal concept of charity, in Missouri, was not confined solely to the relief of the destitute. In the case of In re Rahn’s Estate, 316 Mo. 492, loc. cit. 511, 291 S.W. 120, loc. cit. 128, 51 A.L.R. 877, the court quoted with approval from R.C.L., Secs. 2, 3, pp. 291, 294, as follows:
“ ‘Probably the most comprehensive and carefully drawn definition of a charity that has ever been formulated is that it is a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government. * * * A charity may restrict its admissions to a class of humanity, and still be public; it may be for the blind, the mute, those suffering under special diseases, for the aged, for infants, for women, for men, for different callings or trades by which humanity earns its bread, and as long as the classification is determined by some distinction which involuntarily affects or may affect any of the whole people, although only a small number may be directly benefited, it is public.’ * * *”

The subsequent cases of Goodwill Industries v. Gruner, 357 Mo. 647, 210 S.W.2d 38 (1948); Bader Realty & Inv. Co. v. St. Louis Housing Authority, 358 Mo. 747, 217 S.W.2d 489 (banc 1949), and YMCA v. Sestric, 362 Mo. 551, 242 S.W.2d 497 (banc 1951), sometimes referred to herein as YMCA No. 4, all cited Salvation Army with approval and applied to the facts therein involved the test established in Salvation Army for determining whether property is used for purposes purely charitable.

In Goodwill the not-for-profit corporation employed handicapped workers for the purpose of training them so as to enable them to obtain jobs elsewhere. Goodwill sold the goods on which they worked. Profits received were used solely in such operations by Goodwill Industries. The court held that the business was not operated for the purpose of making profits, any profits made being purely incidental to the primary charitable objectives of employing and training handicapped workers.

The court in Goodwill distinguished the case of Evangelical Lutheran Synod v. Hoehn, 355 Mo. 257, 196 S.W.2d 134 (1946), wherein exemption was denied to a publishing corporation, organized as a subsidiary of the Lutheran Church, even though all profits made by the publishing company were turned over to the Church for use in its religious .activities. In explaining the difference in the respective operations, the court said, 210 S.W.2d at 40:

“There the business was managed and operated in the same manner as any commercial enterprise for profit. True, the profits were turned over to the parent church corporation to be devoted to religious and charitable uses, but the primary purpose of the publishing company was to make profits, while the primary purpose of Goodwill is not to make profits, but to assist handicapped men and women to become self-respecting and self-supporting.”

In Bader Realty the court held that housing units, owned and operated by the St. Louis Housing Authority, a public corporation organized pursuant to state statute and city ordinance, were used for purposes purely charitable and, hence, were exempt from ad valorem taxation. The units were rented to low income tenants and the rentals charged were insufficient to pay all operating costs of the Housing Authority. Such deficiencies were made up by sums provided by the federal government. Holding that the Housing Authority was a public charity, the court, in applying the definition of charitable adopted in Salvation Army, said at 217 S.W.2d at 493:

“Nothing could be more public in value or more beneficial to the community as a whole than the clearance and reconstruction of those slum areas wherein men, women and little children are crowded into hovels of such character as to wholly lack the material things and environmental values productive of good citizenship, good morals and well being.”

The court found that the use of the property for rental to low income tenants was intended to improve the physical, mental and moral condition of the tenants and was charitable in nature.

In YMCA No. 4, the court held exempt the residence halls held taxable under the earlier YMCA cases overruled in Salvation Army. In so doing, the court utilized the broad definitions of charity and charitable purposes adopted in Salvation Army and reaffirmed in Goodwill and Bader Realty. This was done even though, in fact, the residence halls showed an excess of income over expense in two of the three years for which assessments of the property were under attack. The court held that the purpose of the use of the property was to provide for the welfare of young men and boys, preferably low income but not limited thereto, by various means including maintenance of places of recreation and abode of a homelike and Christian character designed to foster good citizenship and Christian ideals. It determined that operation of facilities for board and lodging was intimately related to a charitable purpose and not for the purpose of making a profit.

Fundamentally, the rationale of Salvation Army also has been utilized in granting charitable exemption from ad valorem taxes to hospitals. Alexian Brothers Hospital v. Powers, 74 Mo. 476, aff’g 10 Mo.App. 263 (1881); Community Memorial Hospital v. City of Moberly, 422 S.W.2d 290 (Mo.1967); Jackson County v. State Tax Commission, 521 S.W.2d 378 (Mo. banc 1975).

Alexian Brothers, cited in Salvation Army, quoted with approval language from a Massachusetts case defining a charitable gift which was identical to that in Salvation Army’s quotation from In re Rahn’s Estate, supra. The opinion of the court of appeals, 10 Mo.App. at 268, summarized the case in these terms:

“It appears from the pleadings in the present case, that the whole object of the institution is charity; nobody connected with it can derive any profit from the work carried on there; any profit derived from pay patients is applied exclusively to the charitable purposes of the institution; and every, part of the building is used exclusively for a hospital. The object being clearly charitable, and exclusively so, and all ideas of private gain, profit, or advantage being excluded, we are unable to see any reason for holding that the purpose is not ‘purely charitable’ within the meaning of the law.”

In Community Memorial the court noted that most patients were able to and did pay their hospital bills and that only 5-10% were unable to pay. The hospital had a margin of income over expense each year but “[a]ll such margin of income over expenses in each year has been expended on improvement of building, facilities, equipment, services, and retirement of debt.” 422 S.W.2d at 294. The court observed that the hospital facilities were available equally to both pay patients and those who could not pay and that the hospital had never operated at capacity so as to cause services to be unavailable to indigent patients. The court went on to state that such considerations as whether a profit or loss was in fact realized or sustained, or that some competition with private business exists, or that pay patients are admitted for treatment, or that a large part of its revenue is derived from pay patients, were not determinative if, from all the evidence, it could fairly be said that the actual use of the hospital property was consistent with .the nonprofit feature and charitable purposes expressed in the corporation’s articles of agreement. The court determined that the purpose of the hospital was not to make profits but to devote any income in its operation to the charitable purpose of operating a hospital and providing care and treatment for the benefit of all who come to its doors, whether as pay or indigent patients. Hence, it was entitled to a charitable exemption.

Jackson County involved the asserted charitable exemption of three hospitals in Kansas City. Their articles of incorporation and methods of operation were quite similar to those of Community Memorial Hospital. Each operated as a not-for-profit corporation. The court concluded that the law of Missouri with regard to charitable exemption of hospitals could be stated thus, 521 S.W.2d at 383:

“[PJroviding of hospital facilities for the sick in a nonprofit manner rises to a charitable purpose tax-exempt status if the same is available to rich and poor.”

Although all of the foregoing cases (except Jackson County) interpreting and applying the language of § 137.100(6) and Mo.Const., art. X, § 6, had been decided prior to 1969, no attempt has been made to apply this body of law in the cases addressing exemption claims by homes for the aged. Instead, such claims consistently have been tested by reference to factors which we have concluded are in some respects inconsistent with the eases previously discussed.

The source of this divergent approach to exemption claims by homes for the aged may be traced to Defenders’ Townhouse, Inc. v. Kansas City, 441 S.W.2d 365 (Mo.1969), the first case involving such a facility to reach this court. At the outset, the opinion undertook a review of many of the earlier Missouri cases hereinbefore discussed but did not find them controlling under the facts presented. The standard adopted in Salvation Army and applied in subsequent cases was not adopted or applied but the opinion offered no explanation why the definition and tests of these cases were inadequate or should not be used.

Implicit in the Defenders’ Townhouse opinion is the premise that facilities for the aged are in some way so different from other projects as to warrant inquiry into the treatment of such exemption claims in other jurisdictions. In the process of this inquiry, numerous factors which have been deemed critical in determining exemption claims for such projects in other jurisdictions were cited with approval. However, the opinion did not undertake to discuss variations in the statutory or constitutional provisions construed in those cases. More significantly, no attempt was made in Defenders’ Townhouse to reconcile these factors with the earlier Missouri cases (previously discussed herein) which declared the intent of the people and the legislature in adopting our own constitutional and statutory provisions. Such analysis is similarly absent from the subsequent decisions relied upon by the Commission.

Although it is difficult to be precise and pinpoint what criteria Defenders’ Townhouse makes mandatory, it and the subsequent decisions in this area have cited and relied on one or more of the factors identified therein as persuasive in allowing or denying exemption. Some of them seem to focus on economic aspects of operation, not for the purpose of determining whether it is a not-for-profit operation, but as a substitute for concentrating on whether the property is used for a charitable purpose as was done in cases such as Salvation Army and YMCA No. 4. Furthermore, as will be discussed below, these criteria are demonstrably inconsistent with our own charitable exemption cases dealing with facilities used in areas other than retirement homes. The facts of many of these cases where exemption has been allowed reveal the same alleged deficiencies deemed to mandate denial of exemption for homes for the aged in Defenders’ Townhouse; Paraclete Manor of Kansas City v. State Tax Commission, 447 S.W.2d 311 (Mo.1969), and Westminster Gerontology Foundation v. State Tax Commission, 522 S.W.2d 754 (Mo.1975).

For example, in all three of these cases (in all of which charitable exemption was denied), the court relied heavily on what they characterized as collection of rents sufficient to defray the entire cost of the project. In all of these cases government funding had been secured and there was a substantial federal subsidy in the form of low interest, long term loans which made it possible for the projects to offer residency at a substantially lower cost and still break even. This factor was not taken into consideration in the conclusions that rentals covering the entire cost were charged. Loaning money to finance these homes for the aged at interest well below market rates, or providing for interest or rent subsidies, does constitute a subsidy or contribution comparable to charitable contributions from individuals or corporations. They have the same effect.

Furthermore, the foregoing cases ignored and are inconsistent with Bader Realty, in which an exemption was allowed. The court there emphasized that the residents did not pay the entire cost of the operation and the facts reveal that the remaining costs were paid by the federal government.

Closely related is the concern expressed in Paraclete Manor that rentals sufficient to pay operating expenses and amortize the loan will eventually leave the project owner holding the fee free and clear of debt. The same could be said of the residence halls in Salvation Army and YMCA No. 4 where exemption was allowed. In Community Memorial, the court similarly allowed exemption even though, in discussing income from pay patients, it stated that “[a]ll such margin of income over expenses in each year has been expended on improvement of building, facilities, equipment, services and retirement of debt.”

Another concern expressed in Defenders’ Townhouse was the use of property as a private residence. Concern over this factor was also expressed in Bethesda General Hospital v. State Tax Commission, 396 S.W.2d 631 (Mo.1965), but in the context of a challenge that such use was inconsistent with the charitable purpose of operating a hospital. Obviously, the property was so used in Salvation Army and YMCA No. 4 but, as is claimed by Franciscan, it is the provision of a place of residence in the proper environment which constitutes the charity.

In Paraclete Manor the court expressed concern over the lack of a fraternal fellowship or religious purpose. It ignored the fact that Bader Realty and Community Memorial did not make such a requirement. Such factors, along with others, may be considered in determining whether the property is operated for charitable purposes. They were so considered in Salvation Army and YMCA No. 4 in determining whether the use of the property was conducive to the development of Christian character and good citizenship. However, they are not prerequisites to the granting of an exemption. If they were, no exemption would have been permissible in Bader Realty or Community Memorial.

No further examination of the various criteria drawn largely from other jurisdictions would be beneficial here. The purpose of the foregoing discussion is simply to demonstrate that the use of such factors in and of themselves as tests determinative of charitable exemption claims is inappropriate. When so used, the criteria above tend to substitute an imprecise formula for meaningful analysis. Many of the factors mentioned above focus on the character of the owner rather than the use of the property. This leads to the inconsistency noted above. The general nature of the owning organization — other than that it is not-for-profit — cannot be said to determine whether the use of the particular property is charitable or not. The statute clearly makes the use of the property the focus of the exemption and such is unquestionably the focal point of Salvation Army and the subsequent cases in other areas.

The foregoing is not to say that the factors analyzed in the retirement homes cases will be irrelevant. However, their relevance is strictly confined to the extent to which they may indicate the purpose for which the property is used and whether such purpose is charitable.

We hold that the words “used exclusively * * * for purposes purely charitable, and not held for private or corporate profit” which appear in § 137.100 should and do have the same meaning whether applied to property used for a hospital, for training handicapped workers, for operating a YMCA type of program or for providing housing for the aged. We have also concluded that the established meaning and criteria articulated in numerous Missouri cases commencing with Salvation Army properly reflect the intent of the people and the legislature in enacting the constitutional and statutory exemptions for such property. We shall proceed to apply those criteria to the facts of this case. In the future tax assessors and the State Tax Commission should do likewise in determining whether a charitable exemption is to be granted. They should not look to and follow Defenders’ Townhouse and its progeny.

The first prerequisite for property to be exempt as charitable under § 137.100 is that it be owned and operated on a not-for-profit basis. It must be dedicated unconditionally to the charitable activity in such a way that there will be no profit, presently or prospectively, to individuals or corporations. Any gain achieved in use of the building must be devoted to attainment of the charitable objectives of the project. As demonstrated by Evangelical Lutheran Synod v. Hoehn, supra, an exemption will not be granted covering property which houses a business operated for the purpose of gaining a profit, even though it is turned over to a parent organization to be used for what are admittedly independently religious or charitable purposes.

The requirement that the property must be operated as a not-for-profit activity does not mean that it is impermissible for the project at times or even fairly regularly to operate in the black rather than on a deficit basis, provided, of course, that any such excess of income over expense is achieved incidentally to accomplishment of the dominantly charitable objective and is not a primary goal of the project, and provided further that all of such gain is devoted to the charitable objectives of the project.

Another prerequisite for charitable exemption is that the dominant use of the property must be for the benefit of an indefinite number of people, for the purpose, as expressed in Salvation Army, of “bringing their hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government.” 188 S.W.2d at 830. The court at that same point included “humanitarian activities, * * * rendered at cost or less, which are intended to improve the physical, mental and moral condition of the recipients and make it less likely that they will become burdens on society and make it more likely that they will become useful citizens.” Thus, it is required that there be the element of direct or indirect benefit to society in addition to and as a result of the benefit conferred on the persons directly served by the humanitarian activity.

Examples of such humanitarian activities previously held to be exempt as charitable include the operation of hospitals which are open and available to rich and poor (Community Memorial and Jackson County); a facility operated to provide employment and training for handicapped persons (Goodwill); operating a YMCA building housing boys and young men, preferably of low income, as a part of a program intended to foster good citizenship and Christian ideals in those boys and young men (YMCA No. 4); providing housing at less than cost to girls and young women, including the needy, intended to promote the welfare of such persons (Salvation Army); providing good low cost housing for low income people to replace old, delapidated properties in a slum area which was cleared (Bader Realty). All of these, while benefitting the individuals served, also were considered to benefit society generally.

Chariton provided one room efficiencies and one bedroom apartments for elderly low income people at considerably less than cost. Charges therefor on a self-sustaining basis would have been $265.50 and $326.00 per month but these were furnished at less than half those sums, viz., $105.00 and $126.29. These were furnished to people, most of whom had incomes of less than $400 per month and almost half of whom had incomes of $250.00 per month or less. These income levels were within eligibility requirements for government supported public housing but such was not available to most Chariton residents because they had assets of between $5,000 and $10,000. Even so, approximately one-sixth of the residents received some governmental support in the form of a monthly rent supplement or subsidy. Furthermore, their assets were so limited that, absent availability of low cost quarters such as those provided in Chariton, their assets could have been depleted quickly so as to place them in public housing or, if not so placed, in substandard housing under conditions conducive to increasing the problems of government and society.

In Bader Realty this court held that the low cost housing furnished by the Housing Authority for rental to low income tenants was entitled to a charitable exemption from ad valorem taxes. Such housing was considered to benefit society and lessen the likelihood of burdens on government. The only appreciable difference between that case and the one we now consider is the fact that a slum area had been cleared and decent low cost housing erected in lieu thereof and the fact that the Housing Authority was a public corporation. However, that does not provide a sufficient distinction upon which to base the granting of an exemption to Housing Authority and the denial thereof to Franciscan. In both cases the exemption is on property used as low cost housing furnished to low income tenants. Both have the objective of furnishing housing not otherwise available. In both instances it is made possible by reason of the expenditure of governmental funds. In this case the funds were furnished pursuant to the “Senior Citizen Housing Act of 1962” by which the Congress recognized a public and a governmental problem and undertook thereby to help provide needed low cost housing for older people.

A retirement center such as Chariton clearly serves an important social need. Such was expressly recognized by the Commission in its findings. Such projects are much more than a building with physical characteristics tailored to the often more limited mobility of its tenants. As the evidence in this case overwhelmingly suggests, such centers are designed and operated to encourage continued activity and further development. Through discussion groups, speakers, social activities, short trips, etc., plus periodic physical checkups, the continuing vitality and health of the residents is maintained. The Commission specifically found that the activities provided were extensive and worthwhile and were beneficial to the physical, spiritual, social and psychological needs of these elderly tenants. Such activity and the continued companionship available in such projects does help prolong life and health by reaffirming the sense that life is worth living, that society cares.

In its conclusions of law in support of its decision to deny a charitable exemption, the Commission, relying on statements in Defenders’ Townhouse and the cases applying its reasoning, expressed doubt that the tenants would consider themselves objects of charity and emphasized that they were not indigent. This is but further evidence of the inappropriate focus of such cases. In other areas, we have often reaffirmed the premise of Salvation Army that charity is not limited to relief of the destitute. YMCA No. 4 and Community Memorial are examples. Furthermore, we cannot believe that it is the intent of the people under § 137.100 to withhold the financial assistance of a tax exemption until such time as our elderly are totally incapable of providing for themselves. The whole thrust of projects such as Chariton is to assist its tenants in avoiding such status by providing an atmosphere where they can remain self-sustaining as long as possible. The payment of monthly rent at Chariton and similar projects may for some be as important as the other valuable activities. Although federal or other assistance is obviously being provided, the sense of paying one’s own way can be an important intangible which reaffirms continued vitality and dignity.

We do not believe that it may be said the benefits thus rendered to society are in any way less direct than those of YMCA No. 4 or the other residence halls cases. There was no assertion in those cases that the government was under any present duty to provide the type of facilities under review. Rather, such projects are said to build character and develop good citizenship, thereby contributing to the public welfare. In the present case, aside from furthering the moral well being of the tenants, the activities of the Chariton center are designed to reduce the likelihood that its residents will ever become public charges.

The fact that subsidization of part of the cost of furnishing such housing is by the government rather than private charitable contributions does not dictate a different result. If it did, the result in Bader Realty would have been otherwise. In this case, we actually have some substantial private charitable contributions in that Franciscan and affiliated organizations did contribute money and services, but the contribution to the project could have been solely from government funds as it was in Bader Realty.

The fact that rentals charged were to be applied in part to retirement of principal and interest incurred in acquiring or building the property in question does not dictate a denial of a charitable exemption if the facts otherwise support such an exemption, as they do here. Salvation Army spoke with approval of humanitarian services furnished at cost or less and in Community Memorial the court, in discussing income from pay patients, stated that “[a]ll such margin of income over expenses in each year has been expended on improvement of building, facilities, equipment, services, and retirement of debt.” Such use of funds derived from patients did not disqualify the hospital from being granted a charitable exemption. It follows that the fact that rentals from tenants in Chariton were utilized in helping to retire principal and interest incurred in acquiring the building does not disqualify Franciscan from being granted a charitable exemption.

We conclude that Chariton meets the test of Salvation Army and the subsequent cases which relied upon and followed Salvation Army for being entitled to a charitable exemption under § 137.100. Franciscan is a not-for-profit corporation whose clearly stated purpose was to operate a rental facility for the aged on a non-profit basis. It did not operate at a profit. It contributed some of its own funds to supplement rentals received in order to meet expenses of operating Chariton. No profit to any individual or corporation may result even if the full subsidy contemplated is eventually realized. Chariton, for the reasons we have indicated, was operated for purposes purely charitable within the meaning of § 137.100. In view of our conclusion that Franciscan was entitled to charitable exemption from ad valo-rem property taxes on the Chariton apartments, we need not reach questions presented by the Commission’s appeal concerning the valuation of the property.

The judgment is reversed and the cause remanded for the entry of a judgment consistent with the views here set forth, and for such other proceedings as are appropriate.

MORGAN, C. J., and BARDGETT, HENLEY, RENDLEN and SEILER, JJ., concur.

DONNELLY, J., concurs in result.

      . All statutory references are to RSMo 1969 unless otherwise indicated. Sec. 137.100 thereof, in effect at the time of assessment, provided in part:
      “The following subjects are exempt from taxation for state, county or local purposes:
      “(6) All property, real and personal actually and regularly used exclusively for religious worship, for schools and colleges, or for purposes purely charitable, and not held for private or corporate profit, . . .
      The above quoted portion of § 137.100(6) was reenacted as § 137.100(5), Laws 1974, p. 761, § 1, effective Jan. 1, 1975.
      Sec. 137.100 was enacted pursuant to the discretion granted to the legislature to authorize tax exemptions by Mo.Const., art. X, § 6, which provides in part:
      “and all property, real and personal, not held for private or corporate profit and used exclusively for religious worship, for schools and colleges, for purposes purely charitable, or for agricultural and horticultural societies may be exempted from taxation by general law.”

      . The regulations also require payment of “excess income” in certain cases (13 residents were paying such amounts at the time of suit). This occurs where a tenant’s income, or the income of two tenants sharing an apartment and “pooling” income, exceeds the maximum allowed for eligibility. In such cases, the tenant or tenants must pay 25% of their monthly income as rent. However, all amounts paid in excess of the maximum rental charge must be remitted to the government each month, so Franciscan receives no benefit therefrom.

      . 188 S.W.2d at 831, overruling State ex rel. St. Louis YMCA v. Gehner, 320 Mo. 1172, 11 S.W.2d 30 (1928) and St. Louis YMCA v. Gehner, 329 Mo. 1007, 47 S.W.2d 776 (1932).

      . While the cases of Trustees of Local 88 v. State Tax Comm’n, 367 S.W.2d 549 (Mo.1963) and Frisco Employees’ Hosp. Ass’n v. State Tax Comm’n, 381 S.W.2d 772 (Mo.1964), in both of which exemption was denied, contain some language which is reminiscent of the more restricted definition of charitable which preceded Salvation Army, both are distinguishable on the basis that use of the hospital was restricted to members of the union and employee groups. In any event, the later cases of Community Memorial and Jackson County, which are in accord with Salvation Army, would govern.

      . Jackson v. Phillips, 96 Mass. (14 Allen) 539 (1867).

      . These include Paraclete Manor and Westminster Gerontology. Also included is Missouri United Methodist Retirement Homes v. State Tax Comm’n, 522 S.W.2d 745 (Mo.1975), insofar as it recognizes or approves of the criteria established by the foregoing cases for determining the right of retirement homes to charitable exemption.
      The fact that we hold that in this case and henceforth the definition of “used exclusively * * * for purposes purely charitable,” established in Salvation Army and subsequent cases cited herein, should be used in deciding whether housing for the elderly is entitled to charitable exemption does not mean that we are holding that a different result would have been reached in the various cases commencing with Defenders’ Townhouse. Such questions are not before us and we express no opinion thereon.


author: GUNN, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Raymond Allen JACKSON, Defendant-Appellant.
    No. 37086.
    Missouri Court of Appeals, St. Louis District, Division Three.
    March 21, 1978.
    Motion for Rehearing and/or Transfer Denied May 9, 1978.
    Fredman, Watkins & Fredman, Richard A. Fredman, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   GUNN, Presiding Judge.

Defendant was charged in separate counts, tried and convicted of first degree murder and possession of heroin. On appeal, defendant charges: (1) that Rule 24.-04, which allows joinder of offenses and under which defendant was tried, is unconstitutional; (2) that the crimes of murder and possession of heroin did not arise out of the same transaction, requiring that the two charges be severed for separate trial; (3) that the State failed to prove the reliability and accuracy of a neutron activation analysis which established that defendant had recently discharged a firearm. Despite the substantial evidence of the defendant’s guilt, we are compelled to hold that under the circumstances here presented the first degree murder and heroin possession charges should have been severed for separate trial.

The victim, Eddie Spurlock, and his live-in companion, Angela Tate, had returned to their third floor St. Louis apartment from an evening’s entertainment. The defendant was also a resident of a third floor apartment in the same building in which Spurlock and Ms. Tate resided. Spurlock, at Ms. Tate’s request, preceded her into the apartment hallway. Ms. Tate heard an explosion and ran from the building in search of a policeman. Nearby police observed two men — one the defendant — fleeing from an area near Spurlock’s apartment building and gave chase. During the pursuit, the defendant threw down a sawed-off shotgun which the police ultimately recovered, and he was captured when he suffered the contretemps of slipping and falling on some mud. Defendant was immediately arrested and a search disclosed 15 capsules of heroin in his possession. Police responding to Ms. Tate’s cries for help found Spurlock lying on the floor of the apartment building mortally wounded by a shotgun blast to the chest. Shotgun pellets taken from Spur-lock’s body after the pernicious attack were the same size as those which had been fired from the spent shell casing found in the shotgun which defendant had discarded. A neutron activation analysis conducted on defendant’s hands established that he had recently discharged a firearm.

Defendant’s defense was that he had not fired any firearm; that he had fled after hearing the shotgun explosion simply from fear of being captured by police while he was in possession of heroin.

Prior to trial, defendant’s counsel moved for separate trials on the murder and heroin possession charges. After being assured by the prosecutor that the evidence would establish that the two charges arose out of the same transaction, the trial court denied the motion for severance.

Defendant first assails the constitutionality of Rule 24.04 which allows join-der of offenses. Defendant argues that the rule changed defendant’s substantive rights without legislative approval. Defendant, by first raising the constitutionality issue in his motion for a new trial, has failed to preserve this point for review by not raising it at the first opportunity during trial. State v. Hegwood, 558 S.W.2d 378 (Mo.App.1977); State v. Mitchell, 554 S.W.2d 581 (Mo.App.1977). Further, such contention is destitute of merit. The exact contention that defendant raises — that Rule 24.04 is a substantive, rather than a procedural charge, requiring legislative action — was considered and rejected by our Supreme Court in State v. Duren, 556 S.W.2d 11 (Mo.banc 1977). State v. Duren, supra, specifically holds that Rule 24.04 is procedural and does no violence to Art. V, § 5 of the Missouri Constitution. We adhere to the Duren decision. See also State v. Perkins, 555 S.W.2d 693 (Mo.App.1977).

Defendant suggests that the evidence relating to the neutron activation analysis was maculated and therefore inadmissible. He argues that there was no proof that the equipment used to perform the test had been tested for accuracy. This point has not been preserved for appeal, as defendant’s objection at trial to the neutron analysis evidence only went to the issue of whether the neutron activation analysis test is considered to be reliable and accurate by the scientific community. It is so recognized. State v. Duncan, 540 S.W.2d 130 (Mo.App.1976); State v. Johnson, 539 S.W.2d 493 (Mo.App.1976); State v. Ross, 523 S.W.2d 841 (Mo.App.1975). See also State v. Montgomery, 545 S.W.2d 655 (Mo.App.1976). Furthermore, the precise point raised by defendant on appeal — that the instrument used to conduct the test had not been checked for accuracy — was considered and rejected in State v. Johnson, supra. We, too, reject defendant’s argument on this point.

Defendant argues that his motion to sever the murder and heroin possession counts should have been granted, as the two crimes did not qualify for joinder under Rule 24.04. There is no statutory authority providing for joinder of offenses, but join-der is permitted under the strictures of Rule 24.04, providing as follows:

“All offenses which are based on the same act or on two or more acts which are part of the same transaction or on two or more acts or transactions which constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts, or in the same count when authorized by statute. Any indictment or information may contain counts for the different degrees of the same offense or for any one of such degrees.”

Although the prosecutor assured the trial court that evidence would be brought forth which would establish that the two crimes had risen out of the same transaction — and it is readily conceivable that the two crimes under suitable circumstances would be proper subject for joinder — the prosecutor failed to present evidence of any connection between the two crimes which would fit them within the provisions of Rule 24.04. See State v. Prier, 561 S.W.2d 437 (Mo.App.1978). The State’s theory of the murder motive was that on a day prior to the feral attack, Spurlock had accused the defendant of breaking into his apartment. An imbroglio ensued, with Spurlock decidedly besting defendant in fisticuffs. The State contended that by reason of the beating administered by Spurlock, defendant had vented his animus on him by lethal attack. There was no evidence to correlate the heroin possession and murder or establish by even the most remote possibility that the two crimes were part of the same transaction, common plan or scheme. The crimes here appear to be independent transactions, unrelated to each other, and not the product of a single or continuing motive. We are constrained to reverse and remand for a separate trial as to each of the two counts. State v. Prier, supra.

Reversed and remanded.

SIMEONE, C. J., and KELLY, J., concur.