author: MARTIN, Chief Judge.

text:
    Ralph P. WETHINGTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 8, 1977.
    Linda K. West, Asst. Public Defender, Com. of Ky., Frankfort, for appellant.
    Miles H. Franklin, Asst. Atty. Gen., Com. of Ky., Frankfort, for appellee.

      Before MARTIN, C. J., and WINTER-SHEIMER and GANT, JJ.
   MARTIN, Chief Judge.

The defendant, Ralph P. Wething-ton, appeals from a Fayette Circuit Court criminal Judgment sentencing him in accordance with KRS 533.060(2). This section provides that a person who is convicted or enters a plea of guilty to a felony committed while on parole, probation, shock-probation, or conditional discharge, shall not be eligible for this treatment or concurrent sentencing on the subsequent offense. The defendant argues in this case, since the offenses of which he was convicted occurred before KRS 533.060 became effective, the application of this sentencing provision to him violates the United States Constitution’s bar against ex post facto laws.

On June 7, 1976, defendant was indicted in the Fayette Circuit Court on three counts of theft by deception in violation of KRS 514.040 and as a recidivist under KRS 532.-080. On July 12, 1976, he was separately indicted for an additional count of theft by deception. On September 27, 1976, in the Fayette Circuit Court, Sixth Division, he entered a “Waiver of Further Proceedings with Petition to Enter Plea of Guilty” as to counts one and three of the June 7 indictment and the additional count of theft by deception in the July 12 indictment. At that hearing, on the motion of the Commonwealth’s Attorney, the trial judge dismissed the second count of theft by deception and the charge of recidivism in the June 7 indictment. Judgments of guilty were entered on the two counts of theft remaining in the June 7 indictment, and on the count of theft in the July 12 indictment. The trial court fixed a sentence of one year each on counts one and three of the June 7 indictment and ordered that they run concurrently. The court sentenced Wethington to a term of one year on the guilty plea to the July 12 indictment and ordered that the sentence run consecutively with his sentence on the June 7 indictment for a total of two years to serve. The trial judge took the position that KRS 533.060(2), which went into effect June 19, 1976, eliminated any discretion on his part in regard to whether defendant was eligible for probation or conditional discharge, or whether the sentences could run concurrently rather than consecutively as he ordered.

In this appeal, defendant takes the position that KRS 533.060, as applied to him, is ex post facto and therefore invalid under the United States Constitution. The Attorney General, in his brief for the Commonwealth of Kentucky, has confessed error and requested the case be remanded for a new sentencing hearing. This Court has reviewed the matter and concludes that the trial court was in error in applying the new statute to the defendant.

The United States Constitution, Article I, Section 10, Clause I, provides that “No state shall . . . pass any bill of attainder, (or) ex post facto law . . . ” This prohibition of the Constitution has been extended to cover sentencing provisions and penalties as well as offenses. In Lindsey v. State of Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937), the court held that a new statute, the effect of which was to make mandatory what was before only a maximum sentence, violated the ex jx>st facto prohibition of the Constitution as it was applied to a person who allegedly committed an offense prior to the effective date of the statute. In Lindsey, on the date the offense was committed the maximum penalty for the offense was 15 years. Under the old statute, all sentences were required to be for a term of not less than the minimum nor greater than the maximum term prescribed by law for that offense. The new statute, which went into effect after the commission of the offense but before the sentencing date, removed any discretion in setting the penalty within a range, and required that the court fix the maximum sentence as provided under the statute for the offense. After confinement, the Board of Prison and Parole, however, could reduce this and would fix the duration of actual confinement. In sentencing, the court followed the new statute and imposed the maximum sentence provided by law. The Supreme Court of Washington upheld the trial court, rationalizing that the amendment did not change or inflict a greater punishment than the statute in effect when the crime was committed.

The United States Supreme Court disagreed and held the later standard of punishment was a more onerous one than the earlier standard. It held that the effect of the new statute was to make mandatory what before was only the maximum sentence. In Lindsey, supra, at page 401, 57 S.Ct. at page 799, the court stated:

It is true that petitioners might have been sentenced to fifteen years under the old statute. But the ex post facto clause looks to the standard of punishment prescribed by a statute, rather than to the sentence actually imposed. The Constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrong-doer.

In the present situation, if the sentencing provisions of KRS 533.060 are construed to be applicable to all persons convicted on and after the effective date of those provisions, then it is clear that KRS 533.060 would be unconstitutional under Lindsey. As in Lindsey, the new standard of punishment adopted by KRS 533.060 is more onerous than the old statute. While the old statute left to the discretion of the trial judge eligibility for probation and running of sentences, the new statute completely denies eligibility for probation and commands that the period of confinement may not run concurrently with any other sentence. As held in Lindsey, the effect of the new statute is to make mandatory what was before only the maximum sentence.

In reading the language of KRS 533.060, it refers to the court’s discretion, or lack thereof, at the time of the conviction, rather than at the time the offense was committed. Help for this position is found in KRS 446.110:

No new law shall be construed to repeal a former law as to . . . any right accrued or claim arising under the former law, or in any way whatever to affect any such . . . right accrued or claim arising before the new law takes effect.

It further states:

If any penalty, forfeiture, or punishment is mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.

It conspicuously does not say that a penalty made more severe by a new statutory provision may be applied to a judgment pronounced after the new law takes effect. It should be further noted that in statutory construction there exists a presumption in favor of the constitutionality of a duly enacted statute. The statute, whenever possible, should be construed to be constitutional. See Valley Sanitation, Inc. v. Blakely, Ky., 484 S.W.2d 858 (1972); Sasaki v. Commonwealth, Ky., 485 S.W.2d 897 (1972).

We hold that the sentencing provisions of KRS 533.060 may only be applied to persons convicted of offenses which allegedly occurred on or after June 19, 1976, the effective date of the statute.

The judgment of the circuit court is reversed and the case is remanded to that court with directions to hold a sentencing hearing in conformity with this opinion.

All concur.


source: Caselaw Access Project

author:
DOWD, Judge.
      CLEMENS, Presiding Judge, PER CURIAM:

license: Public Domain

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. Edwin J. MANLEY et al., on the exceptions of: M. K. Duebbert, Parcel 172, Defendant, and Edith L. Munday, Parcel 173, Defendant-Appellant.
    No. 35751.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 22, 1977.
    Motion for Rehearing or Transfer Denied March 31, 1977.
    W. W. Sleater, St. Louis, Robert C. Jones, Clayton, for defendants-appellants.
    Donald L. Spry, Kirkwood, for plaintiff-respondent.
   DOWD, Judge.

A condemnation suit. On October 24, 1961, following the initial hearing, condemnation was ordered and commissioners appointed to assess damages sustained by defendants. Both plaintiff, hereinafter referred to as the state, and defendant Mun-day filed exceptions to the commissioners’ damage award in March, 1962. Ten years later, in February, 1972, the state set its exceptions for trial. Defendant Munday filed a motion to dismiss the state’s exceptions for failure to prosecute, which was overruled. The trial court entered judgment against defendant Munday for a total sum of $937.00, the amount by which the commissioners’ award exceeded the jury verdict, together with interest at the rate of 6% per year from May 15, 1962, the date of payment of the award. Defendant Mun-day appealed.

The state’s motion to dismiss the appeal contending non-compliance with Rule 84.-04(d) is denied.

The question to be decided on this appeal is whether the trial court erred in denying defendant Munday’s motion to dismiss the state’s exceptions for failure to prosecute. Numerous other points of error are raised by appellant, but resolution of this question makes it unnecessary to reach the others.

We believe that City of Jefferson v. Capital City Oil Co., 286 S.W.2d 65 (Mo.App.1956), which held that 5 years and 4 months was an unreasonable delay in prosecution of a city condemnor’s exceptions, ab sent a valid excuse for the delay, is controlling authority on the issue. In that case the court, affirming the dismissal below, noted that the decision to dismiss for failure to prosecute is a discretionary one with the trial judge, not to be disturbed on appeal unless such discretion is abused. The present case comes to us in a different posture, and, mindful of the deference due the trial court in a discretionary ruling, we are reluctant to reverse the order below denying defendant’s motion for dismissal. However, we are compelled to reverse when discretion is abused, as we find to be the case here. The exceptions had been pending for 10 years, nearly twice the time found to be unreasonable delay in City of Jefferson, supra. The trial court did not give any reasons for failing to grant the motion to dismiss in the light of such a lengthy delay. Nor does our examination of the record reveal any valid excuse for the 10 year delay. We find the state’s excuses for the delay to be without merit.

The state contends that its delay is justified by: 1) the fact that one parcel of land was the subject of a suit to quiet title from the time of filing the condemnation petition until August, 1967, 2) the failure of appellant to notify the state of the termination of that litigation, and 3) the failure of appellant to pursue his own exceptions. No reasons are given by the state to explain why the suit to quiet title necessitated delay in prosecuting its exceptions. Both parties to the suit to quiet title were made defendants in the condemnation suit; which of the parties would choose to defend in the trial on the exceptions should not have concerned the state. The only issue at a trial on exceptions is the amount of compensation to be awarded for the taking, State ex rel. State Highway Comm’n v. Harris, 417 S.W.2d 29, 31[2] (Mo.App.1967); City of Jefferson, supra at 69[5], and this determination can be made without a final decision as to who holds title to the property. Condemnation suits would needlessly remain pending indefinitely if the state delayed prosecution on its exceptions every time title to the land taken is in dispute. It is noted that the quiet title action was terminated in August, 1967 and it was not until 4½ years later (February, 1972) that the state set the exceptions for trial. Neither do we agree with the state’s contention that defendants had an obligation to notify the state of the termination of the suit to quiet title. The state had the responsibility to pursue its own lawsuit without relying on defendants to notify it of a matter of public record. The state’s third point was addressed in City of Jefferson, supra at 69, where the court held that the fact that the defendant had filed exceptions did not have any bearing upon his right to move for dismissal for failure to prosecute.

Our appellate courts have frequently pointed out that the volume of cases filed requires courts to dispose of cases with reasonable promptness in order to avoid a backlog which subjects litigants to unreasonable and excessive delay in having their cases heard. With this caveat in mind, we hold that the 10 year delay in prosecution is an unreasonable delay for which the state has not presented a valid excuse, and that under these circumstances, the trial court’s failure to grant defendant’s motion to dismiss was an abuse of its discretion.

Accordingly, the judgment is reversed and the case remanded to the trial court for entry of a judgment of dismissal for failure to prosecute.

CLEMENS, P. J., dissents in separate opinion.

WEIER, J., concurs.

CLEMENS, Presiding Judge,

dissenting.

I would affirm.

I dissent because the majority opinion does not afford the trial court the deference we owe it on a discretionary ruling. By the majority opinion this court reverses the State Highway Commission’s judgment on the ground the trial court should have dismissed its exceptions for failure to prosecute. Our decision reverses plaintiff’s judgment on the sole ground of its untimely failure to prosecute, this on the strength of City of Jefferson v. Capital City Oil Company, 286 S.W.2d 65[2] (Mo.App.1956).

I disagree with the majority’s statement that City of Jefferson is controlling. That case was the converse of ours. There, the trial court dismissed the cause and the court of appeals affirmed that as a discretionary ruling. Here, conversely, the trial court refused to dismiss the cause — and we reverse that discretionary ruling. Here, in contrast to City of Jefferson, the trial court denied the motion to dismiss. Our opinion declares the trial court thereby abused its discretion. The sole basis for so holding is that the plaintiff’s ten-year delay was ipso facto unreasonable despite the fact defendants equally participated in that delay.

In exercising its discretion, the trial court here could and did take into consideration other factors in the case. As said in Schreck v. Parker, 388 S.W.2d 538[1Q] (Mo.App.1965): “Whether any given case should be dismissed for want of prosecution does not depend solely upon the length of time during which the case has been pending [17 Am.Jur., Dismissal, etc., § 77, l.c. 152] but must be determined, in the exercise of a sound judicial discretion, upon all of the facts and circumstances of that particular action.”

When the law vests a trial court with the right and duty to rule discretionary matters, as it does in dismissals for want of prosecution, its ruling must be upheld “unless there has been arbitrary or oppressive exercise or palpable abuse of that discretion.” Levee District No. 4 of Dunklin County v. Small, 281 S.W.2d 614[6-10] (Mo.App.1955). And, in Kasper v. Helfrich, 421 S.W.2d 66[1-5] (Mo.App.1967), we refined the definition of “abuse of discretion,” saying “ . . . appellate courts will interfere with the trial court’s exercise of discretion only when it has been manifestly abused; that discretion is abused only when the trial court’s ruling runs against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to show a lack of careful consideration and shock the sense of justice . .

The trial court here was confronted with the issue of whether to cast out the parties on the technical ground of want of timely prosecution or to proceed on the merits of the case; it chose the latter course. The majority opinion in effect brands the trial court’s decision as “so arbitrary and unreasonable as to show a lack of careful consideration and shock the sense of justice.”

An appellate court should not so cavalierly substitute its judgment for that of a trial court, as I believe we have done here.

ON MOTION FOR REHEARING

PER CURIAM:

On motion for rehearing the state argues that our opinion leaves open the present status of defendant Munday’s exceptions. We disagree. Exceptions are not the same as petitions stating specific causes of action in ordinary civil cases. The effect of the filing of exceptions to the commissioners’ award by either party is the same: a jury determination on the single issue of the fair market value of the property before and after the taking, or damages sustained by the defendant. State ex rel. Highway Commission of Mo. v. Curtis, 365 Mo. 447, 283 S.W.2d 458 (1955); State ex rel. Highway Commission of Mo. v. Harris, 417 S.W.2d 29 (Mo.App.1967).

In the present case, trial was had, verdict rendered, and judgment entered on the single issue of damages, not on one party’s exceptions or the others. Since the trial is unaffected by who filed exceptions defendant Munday cannot take the position on appeal that trial should not have been had on the state’s exceptions and still argue for re-trial of the same issue due to the filing of his exceptions. Appellant, by urging on appeal that the state’s exceptions should have been dismissed, in effect argues that the issue of damages should not have been submitted to the jury for determination and elects to accept the commissioners’ award and withdraw or dismiss his exceptions.

Therefore, our holding that a 10 year delay in prosecution, without valid excuse, is unreasonable delay which requires reversal of the judgment below and dismissal of the state’s exceptions, necessarily implies, that defendant’s exceptions are also dismissed, the issue of damages should not have been determined by jury trial, and the commissioners’ award is final.

Motion for rehearing is overruled.


author: SMITH, Presiding Judge.

text:
    NATIONAL ADVERTISING COMPANY, Plaintiff-Appellant, v. STATE HIGHWAY COMMISSION, Defendant-Respondent.
    No. 37498.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Feb. 22, 1977.
    Motion to Modify Opinion Denied April 15, 1977.

      Coburn, Croft, Shepherd & Herzog, Patrick C. Dowd, St. Louis, for plaintiff-appellant.
    William Darmstaedter, II, State Highway Dept., Manchester, Bruce A. Ring, Chief Counsel, J. David Bechtold, Jefferson City, for defendant-respondent.
    Williams & Smallwood, John Z. Williams, Rolla, amicus curiae for Clarence A. Nowak et al.
    Neale, Newman, Bradshaw & Freeman, Paul L. Bradshaw, Joseph A. Bohrer, Springfield, amicus curiae, for Pioneer Advertising Co., et al.
    Spencer, Fane, Britt & Browne, Dale E. Sporleder, Jefferson City, amicus curiae, for DeSoto Advertising Co., et al.
   SMITH, Presiding Judge.

Plaintiff appeals from an adverse declaratory judgment and denial of a permanent injunction arising from proposed actions by defendant pursuant to the Missouri Billboards law, Sections 226.500 to 226.600 RSMo 1969. It is initially necessary to determine what matters raised on the appeal are still viable in view of the amendment of the law by House Bill 1478 effective June 24, 1976. To do that a review of the act and its legislative history and the facts surrounding this litigation is necessary.

In 1965, the Federal Highway Beautification Act of 1965 (23 U.S.C. Section 131 et seq.) was enacted requiring states to effectively regulate outdoor advertising structures within a restricted area (660 feet of the nearest righ1>of-way of any interstate or primary highway) or be penalized 10% of their federal highway appropriation. The purpose of the legislation was to promote an orderly display of outdoor advertising by, among other things, providing funds to the states for the removal of unsightly outdoor advertising in the restricted area which cluttered open space or was unattractive by its appearance. In the same year the Missouri legislature passed Conference Committee Substitute for Senate Bill 8, Laws 1965 pp. 900 — 905, (Sections 226.500 to 226.600 RSMo 1969) to meet this state’s obligations under the federal act. S.B. 8 was Missouri’s first comprehensive outdoor advertising control law. It went into effect January 1, 1968. See generally Whitman v. State Highway Commission, 400 F.Supp. 1050 (W.D.Mo.1975).

The provisions of S.B. 8 relevant to this action declared unlawful all signs erected in non-conformity with the sizing, spacing, lighting and locational standards in the statute. S.B. 8, Laws 1965, Sections 3, 5, 9, pp. 901 — 904. These unlawful signs could be removed without compensation after written notice to the sign owner or property owner. S.B. 8, Laws 1965, Section 9, p. 904.

Enforcement of S.B. 8 was lax. No comprehensive program to enforce S.B. 8 was effectuated by the defendant and few signs were removed while the law was in effect. Funds from the federal government to pay its share of removal costs were not forthcoming.

On February 10, 1972, the United States Secretary of Transportation declared that S.B. 8 did not provide the “effective control” of signs required by the federal act, and ordered a 10% penalty imposed. The Secretary agreed to suspend the penalty if Missouri would agree to two conditions. First, enter into an agreement with the Federal Highway Administration setting out the guidelines for “effective control.” Second, enact legislation by March 31, 1972, implementing the regulatory guidelines stated in the agreement. The agreement, which states that Missouri will enact the necessary legislation in order to receive its full share of federal-aid highway funds, requires that the state “effectively control” outdoor advertising signs, erected after the effective date of the new legislation (March 30, 1972) as required by the federal act.

In response to this agreement Senate Committee Substitute for Senate Bill 382, Laws 1972, pp. 856 — 863 (Sections 226.500 to 226.600 RSMo 1969) was enacted to carry out the state’s obligation required by the federal legislation. Standards for sizing, spacing and lighting were enacted along with locational restrictions. Sections 226.-520 and 226.540, S.B. 382, Laws 1972, pp. 857-861. Other restrictions relating to the upkeep, erection and placement of signs were also included, a permit system to monitor the enforcement of the controls was adopted, and provision made for removal of unlawful signs. Sections 226.550-226.580, S.B. 382, Laws 1972, pp. 861-863. Compensation was to be paid for the removal of lawful non-complying signs, Section 226.-570, S.B. 382, Laws 1972, p. 862, while unlawful signs were to be removed without compensation, Section 226.580, S.B. 382, Laws 1972, pp. 862-863. Removal of signs was authorized only after notice received by the property or sign owner giving him thirty days to remedy the defect or appeal the action of the defendant. Section 226.580, supra.

Section 226.550.2 of S.B. 382 provided that “ . . . the state highway commission shall within ninety days of the effective date of this act [March 30, 1972] issue permits and identification tags, upon application and payment of the requisite fee for any structure lawfully in existence on the day prior to the effective date of this act

The defendant interpreted this provision to require the applications be made for permits for pre-March 30 lawfully erected signs by June 28, 1972. It was further defendant’s position that failure to make such application by that deadline thereafter precluded sign owners from obtaining permits and made such signs subject to removal without compensation pursuant to Section 226.580, S.B. 382. Plaintiff was notified of rejection as untimely of a number of permit applications pursuant to this position. From December 1973, until July 30, 1975, plaintiff received 438 removal notices for 438 separate signs. The sole ground of removal for 419 of these signs was the failure to obtain a permit. The remaining 19 notices either specified a separate ground for removal or listed a separate ground in addition to lack of a permit. Plaintiff requested an administrative hearing on each notice. These hearings were consolidated and at the time suit was filed evidence had been taken in two hearings involving 98 of plaintiff’s signs. No decision in those hearings has been rendered because of a restraining order issued by the trial court. That restraining order was continued in effect by the trial court pending resolution of this appeal.

As part of the administrative hearings, defendant propounded interrogatories to plaintiff. Over plaintiff’s objection that no authority existed for interrogatories in an administrative hearing, plaintiff was ordered by the hearing examiner to answer the interrogatories.

We will make no attempt to delineate the issues raised in plaintiff’s suit for declaratory judgment and injunction, but will rather delineate the issues presented by plaintiff’s appeal from the lower court judgment. Those issues are that the trial court erred in:

(1) upholding defendant’s rules that required permit applications to be filed prior to June 28, 1972;

(2) finding the law imposes a mandatory permit system;

(3) finding that permits are required as a condition to erecting signs in unzoned business areas;

(4) finding that the law permits the removal without compensation of signs erected in violation of lighting, sizing, spacing or location requirements of S.B. 8. (signs erected between Jan. 1,1968 and March 30, 1972);

(5) finding that the law does not authorize permits for non-conforming signs after a removal notice has been issued;

(6) failing to rule on the validity of the use of interrogatories in administrative hearings; and

(7) failing to issue an injunction.

After the notice of appeal and most of the briefing in this case, H.B. 1478, Laws 1976, p. - became effective on June 24, 1976. It has a substantial impact upon the points raised by plaintiff. The most important impact is upon the question of permits for signs lawfully in existence prior to March 30, 1972. S.B. 382 contained the previously quoted language regarding permits and in addition stated:

“226.550.2 . . . For purposes of this act, the terminology ‘structure lawfully in existence’ or ‘lawfully existing’ sign or outdoor advertising shall, nevertheless, include the following signs unless said signs violate the foregoing provisions of paragraphs (a) thru (e) of this subsection:
(1) All signs erected prior to January 1, 1968;
(2) All signs erected before the effective date of this act [March 30,1972] but on or after January 1,1968, which would otherwise be lawful but for the failure to have a permit for such signs prior to the effective date of this act; provided, however, that any sign or structure which was not in compliance with sizing, spacing, lighting, or location requirements of the act repealed hereby, wheresoever located, shall not be considered a lawfully existing sign or structure; . . . .”

H.B. 1478 added the following language to Sec. 226.580 dealing with removal of unlawful signs:

“3. . . . Notwithstanding any other provisions of sections 226.500 to 226.600, no outdoor advertising structure defined as a ‘structure lawfully in existence’ or ‘lawfully existing,’ by subdivisions (1) and (2) or section 226.550 shall be removed for failure to have a permit until a notice, as hereinabove provided, has been issued after August 13, 1976, which shall specify failure to obtain a permit as the basis for alleged unlawfulness, and shall advise that failure to take the remedial action of applying for a permit within thirty days will result in the sign being removed.

It is conceded by the defendant, and apparent from the language, that these sections have the effect of “forgiving” a prior failure to obtain a permit and affords a sign owner the opportunity to have his sign treated as “lawfully in existence” upon applying for a permit after receiving notice of his failure to have a permit. “Lawfully existing” signs may be removed, but only with just compensation. Section 226.570 RSMo 1969. We conclude therefore that the amendment of 1976 has rendered moot plaintiff’s first issue on appeal. As to those signs for which removal notices were issued based solely upon absence of a permit, the new amendment requires a new notice after August 13, 1976, and gives the owner the opportunity to correct the defect. The Commission’s prior rules have been super-ceded by the statute amendment and we need not pass upon their validity as to these “no permit only” signs.

We turn to plaintiff’s point two since resolution of that question directly affects points 3, 4, and 5. We are constrained to observe that we have difficulty following plaintiff’s argument that the law since 1972 does not require permits for billboards. It appears to be based upon the language of Section 226.550 which states:

“1. . . . the state highway commission is hereby authorized to collect fees hereinafter specified for the issuance of one-time permanent permits for outdoor advertising . . ..”

and the language of paragraph 2 of that section previously set out on page 3 of this opinion.

We do not interpret these sections, as plaintiff does, as simply permitting the defendant to issue permits, or as making the application for permits a discretionary matter by the sign owner. Rather the first section is an authorization to the defendant to collect fees for the issuance of permits. The second section establishes the time within which the Commission must act. Throughout the act it is apparent that signs for which no permit is acquired are unlawful except those in zoned commercial or industrial areas where “state permits or permit fees shall not be required.” Section 226.550.2(g). See Section 226.550.2(2) referring to signs “ . . . which would otherwise be lawful but for the failure to have a permit for such signs prior to the effective date of this act;” Section 226.550.3 using the language “This inspection fee shall apply to all signs for which a permit must be obtained or for which a permit is obtained;” Section 226.580.1(2) referring to signs deemed unlawful as “Signs for which a permit is not obtained as prescribed in this act;” Section 226.580.3 utilizing the language “ . . . which shall specify failure to obtain a permit as the basis for alleged unlawfulness . . .” and “ . such signs with respect to which permits are so issued are hereby determined by the State of Missouri to have been lawfully erected . . . ” and Section 226.530 stating “The state highway commission is required to issue one time permanent permits as provided in section 226.550 for the erection and maintenance of outdoor advertising . . ..” From a reading of the statute as a whole, it is clear that it was the legislative intention to require permits for all outdoor advertising signs except those in zoned commercial and industrial zones. We find no ambiguity in the act as respects the requirement of permits.

Nor do we find plaintiff’s contention (Point III) that the difference in treatment as it pertains to permits between zoned areas and unzoned areas creates an arbitrary and capricious discrimination. The statute provides for restrictions on lighting, size, and spacing of signs on interstate or primary highways in both zoned and un-zoned commercial and industrial areas. An unzoned area is one not zoned by state or local law or ordinance; a zoned area is one which is so zoned. Section 226.540(4). State permits are not required in zoned commercial or industrial areas if the state, county or municipal zoning authority has adopted laws or ordinances containing regulations as to size, lighting and spacing of signs consistent with the state Billboards law. Section 226.540(6). We do not find it arbitrary and capricious to provide a different degree of supervision and fee .arrangement between those areas.already regulated by law and those which are not. The legislature may presume that the subdivisions of the state will obey the state law and enforce their zoning codes compatibly with that law. Whether it would have been better or wiser to have vested all supervision and all control, including permits, within the defendant is not the question. Rather the question is whether the classification made was a permissible one within the legislative prerogatives. See State ex inf. McKittrick v. Kirby, 349 Mo. 988, 163 S.W.2d 990 (banc 1942) [3]; Slater v. City of St. Louis, 548 S.W.2d 590 (Mo.App.1977). We hold it was.

Points four and five may be treated together. We say that because we are unable to equate, as plaintiff does, the terms “unlawful” and “non-conforming” as synonymous. Non-conforming signs are those signs erected in conformance with law as it existed at the time of erection which are not now in compliance because of a change in the law. They are specifically treated as “lawfully in existence” by Section 226.550. To the extent permits are required for them, they fit within the “forgiveness” provision of H.B. 1478 previously discussed and the issues presented as to those signs are moot.

A different problem exists as to those signs which were erected from January 1, 1968 to March 30, 1972, which were not in compliance with S.B. 8 for reasons other than lack of a permit. The original “forgiveness” provision is restricted expressly to signs “ . . . which would otherwise be lawful but for the failure to have a permit . . .” and specifically states that “any sign or structure which was not in compliance with sizing, spacing, lighting, or location requirements of the act repealed hereby, wheresoever located, shall not be considered a lawfully existing sign or structure; . . ..” Section 226.550.-2(2).

Signs erected contrary to sizing, spacing, lighting or location requirements under S.B. 8 are not lawfully existing signs. Only lawfully existing signs are entitled to permits. Section 226.550.2. Signs which do not obtain permits are unlawful and subject to removal without compensation. Sections 226.580.1(2) and 226.580.4. It therefore follows that signs in violation of S.B. 8 are not entitled to permits and may be removed without compensation under Section 226.-580.1(2). Plaintiff is, of course, entitled to the protections of Section 226.580.3 concerning notice and review of the defendant’s actions.

We do not find, as plaintiff contends, any intention or effort by the general assembly to forgive violations of S.B. 8 respecting sizing, spacing, lighting or location of signs. If plaintiff has violated the law of this state, it can hardly complain that the state does not elect to pay it compensation for its illegal conduct, or that such payment is required.

Since future administrative hearings will probably be required as to some signs, we have examined the question of the use of interrogatories in such proceedings. The act provides for administrative review pursuant to 536.067 to 536.090, RSMo 1969. See Section 226.580.4. Such a procedure is statutory and is governed by the legislative enactment. We find no authority under that statute for the use of interrogatories. Depositions, subpoenas and subpoenas duces tecum are provided for. Sections 536.070 and 536.073. Interrogatories are not mentioned. In the absence of such provision we must construe the statute to authorize only those methods of discovery specifically enumerated, and to exclude those not expressly mentioned. Giloti v. Hamm-Singer Corp., 396 S.W.2d 711 (Mo.1965) [1, 2]. Depositions and interrogatories are not the same. Each has a separate procedure and separate function.

In view of our disposition of plaintiff’s contentions and the requirement of new notices and hearings under H.B. 1478, we find no basis for injunctive relief.

The judgment is set aside and the cause remanded to the Circuit Court for dissolution of the restraining order and for entry of a declaratory judgment consistent with this opinion.

NORWIN D. HOUSER and ALDEN A. STOCKARD, Special Judges, concur.

      .Several amicus curiae briefs have been filed in support of plaintiffs position. We have read those briefs but make no attempt to answer issues raised solely in those briefs.

      . Hereinafter H.B. 1478.

      . Hereinafter S.B. 8.

      . Hereinafter S.B. 382.


author: CLEMENS, Presiding Judge.

text:
    Magnolia MARTIN, Respondent, v. Charles Phillip MARTIN, Jr., Appellant.
    No. 38049.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 22, 1977.
    Motion for Rehearing and for Transfer Denied April 15, 1977.
    Ernest L. Keathley, Jr., St. Louis, for appellant.
    Kero Spiroff, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Four years after the trial court had granted plaintiff-wife a divorce and child support defendant-husband sought to avoid payment by denying paternity. He has appealed from the trial court’s refusal to grant relief.

In 1971 plaintiff sued for divorce alleging pregnancy. Defendant filed answer and appeared by counsel at trial but offered no evidence. By then a child had been born. The court granted child support to plaintiff and defendant made a few token payments.

By 1975 defendant was employed and plaintiff sought to enforce payment by garnishment. Defendant contended by his cor-am nobis, motion that he was not the child’s father and plaintiff had perpetrated a fraud upon the court by having asserted his paternity. The court denied the writ and defendant has appealed.

Respondent-wife contends coram no-bis can be granted only for extrinsic fraud leading to procurement of a judgment, and cannot be granted for intrinsic fraud touching the merits of the action. We agree.

Fraud in the procurement of a judgment (extrinsic fraud) warrants coram nobis to set aside a final judgment. But when the court has properly acquired jurisdiction over the parties and the subject matter, as here, fraud going to the merits of the action (intrinsic fraud) will not vitiate a final judgment.

The distinction between the effect of extrinsic and intrinsic fraud in coram nobis cases was explained by Judge Bennick in Venegoni v. Giudicy, 238 S.W.2d 17[1-3] (Mo.App.1951): . . The fraud against which a court of equity will relieve must have related, not to the propriety of the judgment itself, but to the manner in which it was obtained. By this we mean that the fraud must have been extrinsic or collateral to the matters which either were or could have been presented and adjudicated in the original proceeding, and not merely intrinsic in the sense of having pertained to the merits of the cause before the court and upon which the judgment of the court was rendered.” The rationale of the principle was explained, again by Judge Bennick, in Jones v. Jones, 254 S.W.2d 260[1, 2] (Mo.App.1953): “. . . It is not the province of this feature of equitable jurisdiction to afford the losing party a retrial of matters either tried or concluded by the original proceeding, but instead relief is limited to those instances where fraud was of such a character as to have forestalled an opportunity for the fair submission of the controversy.”

We applied this principle in Head v. Ken Bender Buick Pontiac, Inc., 452 S.W.2d 596[6, 7] (Mo.App.1970), saying, “the fraud that vitiates a judgment is a fraud which goes to the procurement, not fraud relating to the merits of the action.”

Here, defendant knew plaintiff had alleged his paternity. At the time of trial he had full opportunity to refute his paternity; instead, he acquiesced and later made a few child support payments as decreed. Only after the 1975 garnishment did defendant deny paternity. He does not contend plaintiff had exclusive possession of the facts, that he was tricked or that she made false or misleading statements to him. In short, defendant has ineptly relied on allegations of intrinsic fraud to annul a final judgment. The trial court properly denied his motion.

Judgment affirmed.

DOWD and WEIER, JJ., concur.


author: SWOFFORD, Judge.

text:
    A. Ruth COWAN, et al., Appellants, v. Janice Jo Ann McELROY, Individually, and Janice Jo Ann McElroy, Executrix of the Estate of Harry Cowan, Respondent.
    No. KCD 27637.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.
    Motion for Rehearing and/or Transfer Denied April 15, 1977.

      Larry L. Zahnd, Zahnd & Whan, Mary-ville, for appellants.
    Richard E. McPadin, and F. A. White, Jr., McFadin & White, a Professional Corp., North Kansas City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

This is a civil suit brought by the brothers and sister and only heirs at law, of Harry Cowan, to contest his Last Will and Testament on the grounds that he lacked testamentary capacity and that at the time he executed the will he acted under and by reason of undue influence exerted upon him by Janice Jo Ann McElroy.

The will was executed on October 16, 1972, and Harry Cowan died on May 8,1973 at the age of 76 years. The will was filed for probate in Nodaway County, Missouri, on May 10, 1973. By its terms, it left a bequest of $1.00 to each of the testator’s heirs at law (brothers and sister), and the residue of the estate was bequeathed to Janice McElroy, who was also designated executrix of the estate. This will contest suit was filed on September 7, 1973, and was tried before a jury on July 15,1974 and July 17, 1974, on which latter date the jury returned a unanimous verdict finding that the will of October 16, 1972 was the Last Will and Testament of Harry Cowan. After an unavailing motion for a new trial below, the appellants appealed.

No question is raised as to the sufficiency of the evidence. In this connection, for the purposes of this appeal, it is sufficient to note that the transcript of the trial reveals that the testimony of 18 witnesses was produced and many exhibits offered and received in evidence. Typical of this type of action, this evidence was characterized by much conflict and high emotion, and no purpose would be served by a recount of such testimony or an analysis of the documentary evidence. Suffice it to say, that the record discloses sufficient, competent and convincing evidence to support the jury’s verdict.

The points relied upon by the appellants here (plaintiffs-contestants below) are threefold. In summary, they assert: First, the court erred in giving Instruction No. 10 on its own motion during the course of the jury’s deliberations because such instruction was not approved for use in civil actions under MAI, was coercive and was what has become known as an improper “hammer” instruction; second, having given Instruction No. 10, the court below erred in refusing counsel permission to argue such instruction to the jury; and, third, the court erred in giving Instruction No. 3, the respondent’s (defendant-proponent below) verdict director, because it varied and improperly deviated from MAI 31.06, by the use of a period instead of a comma after the first phrase and thus constituted an affirmative direction to the jury that the document in question was the will of Harry Cowan.

The assignment of error dispositive of this case is the propriety of the trial court giving Instruction No. 10 of its own motion during the deliberations of the jury. A resolution of this problem requires a review of the record showing the facts and circumstances in this case leading to this situation and the results thereof.

At the close of all the evidence on the second day of trial, the jury was instructed and retired to deliberate upon its verdict at 4:25 P.M. At the direction of the trial court, the jury was returned to the courtroom at 6:00 P.M. (after 1 hour and 35 minutes of deliberation) and the following appears:

“THE COURT: * * * Mr. Engle, the fact that you have the papers — are you the foreman?
MR. ENGLE: I am.
THE COURT: You do not have a verdict?
MR. ENGLE: We do not.”

Thereupon, the court adjourned until 7:15 P.M. so that the jury could obtain dinner. The jury resumed deliberations at 7:15 P.M., and at 9:15 P.M. (after 2 hours of further deliberation), the jury was again brought into the courtroom and the following appears:

“THE COURT: * * * Have you reached a verdict?
MR. ENGLE: We have not.”

The jury was then taken from the courtroom and the trial court announced its intention to give, of its own motion, Instruction No. 10 as approved in State v. Covington, Mo., 432 S.W.2d 267 at 270, as appropriate under the circumstances, and added:

“I don’t know how the jury stands. I have no idea where they are with reference to a possibility of their returning a verdict. I don’t know how they stand, whether they are evenly divided or unevenly, so it seems to me quite appropriate that it is the time that this instruction should be given. * * * I think it is the court’s duty to give it, and if we have to have it to reach a verdict I think the court has a duty to instruct the jury properly.”

Thereupon, both counsel for plaintiffs-appellants and for defendant-respondent objected to the giving of Instruction No. 10 and coupled with that objection requested that they be given an opportunity to argue the instruction to the jury, if it was given. The objections were overruled and the requests denied, and the jury was returned to the courtroom and the court gave them the following instruction:

“INSTRUCTION NO. 10
At this time, after you have been deliberating, I give you this additional instruction. It is desirable that there be a verdict in every case. It costs considerable money and time and effort to try any lawsuit and the parties are entitled to have their rights determined once and for all in every case, and the 12 jurors chosen to try this case shall be well qualified to do so as any other 12 that might hereafter be chosen. Open and frank discussion by you in your jury room of the evidence in this case may aid you in agreeing upon the facts, however, no juror should ever agree to a verdict that violates the instructions of the court, nor find as a fact that which under the evidence and his conscience he believes to be untrue, yet each of you should respect the opinions of your fellow jurors as you would have them respect yours, and in a spirit of tolerance and understanding endeavor to bring the deliberations of the whole jury to an agreement upon a verdict.” (Emphasis supplied)

After receiving this instruction, the jury again resumed deliberations at 9:20 P.M., and at 9:50 P.M., returned a verdict as follows:

“We the jury find the document dated October 16, 1972 is the Last Will and Testament of Harry Cowan.
S/ John Engle Foreman”

As remarked by the trial court, Instruction No. 10 was taken verbatim from the decision in State v. Covington, 432 S.W.2d 267, 270/1[2, 3] (Mo. 1968), a prosecution for assault with intent to kill with malice aforethought, wherein the court held, under the record in Covington, that the trial court did not err in giving the instruction. In Cov-ington, the jury deliberated for 5 hours and 15 minutes (with a recess for dinner, the length of which does not appear) before the court gave the instruction. It was given only after the court had ascertained that the jury stood 11 to 1, numerically. The jury in Covington deliberated an additional 2 hours and 45 minutes, during which time, upon request, it was furnished certain information as contained in the evidence; the court ascertained during this period that ten of the jurors felt that further deliberations would be fruitless; and, after eight hours, the jury returned its verdict. In Covington, the court followed and basically adopted the principle theretofore declared in State v. Roberts, 272 S.W.2d 190, 192 [1, 2] (Mo. 1954), a first degree robbery conviction, and State v. Watson, 386 S.W.2d 24, 32-33 [18] (Mo. 1964), a possession of burglar’s tools conviction.

From these and other cases, both criminal and civil, the fact emerges that our decisional law postulates the rule to be that an inquiry by a trial judge, made generally and numerically, and not specifically, of a jury after long deliberation as to the possibility of reaching a verdict is not “coercive per se” and, in the circumstances of a given case, an instruction such as Instruction No. 10 here is proper but must not be used “indiscriminately or under any and all circumstances”, Anderson v. Bell, 303 S.W.2d 93, 100 [9, 10] (Mo. 1957). Some basis must appear in the record warranting the giving of such instruction.

This court is supplied in the briefs with many theories as to why the jury here involved did not reach an earlier verdict, and some other reasons appear from speculation. Counsel for appellants argues that there was bound to be an irreconcilable schism in the views of the jury because the issue for its decision was so “simple”, namely, was or was not the document in question the Last Will and Testament of Harry Cow-an. This position is too simplistic to warrant much attention. A careful reading of the record instantly reveals that the jury was faced with decisions (to name a few) as to the physical and mental condition of the decedent at the time he executed the will; his relationship with the respondent-defendant; and, the determination of the credibility or believability of 18 witnesses. Not one word in this record imports any substance to the claim that the jury in its deliberations had reached an impasse or even deadlocked or were unable to eventually reach a verdict. Indeed, if speculation is in order, it could be assumed, with equal justification, that no vote of the jury had been taken on the basic issue.

However, resort to speculation or conjecture dehors the record, is not proper, nor indeed, necessary. Nothing appears in the record to warrant the giving of Instruction No. 10, an instruction not approved by MAI for use in civil cases.

But of overriding and compelling importance is the fact that Instruction No. 10 was misleading to the jury and in direct and irreconcilable conflict with Instruction No. 9, the forms of verdict instruction.

Instruction No. 9 properly informed the jury:

“You are instructed that nine or more jurors may return a verdict in this case. * * * ” (Emphasis supplied)
Instruction No. 10 informed the jury: “ * * * in a spirit of tolerance and understanding endeavor to bring the deliberations of the whole jury to an agreement upon a verdict.” (Emphasis supplied)

Such an admonition that the “whole” jury should reach an agreement, as approved in State v. Covington, supra; State v. Roberts, supra; and State v. Watson, supra, all criminal proceedings, under the facts and trial circumstances of those cases, was proper. But in the case at bar, a civil action, it could only be confusing and misleading and tantamount to a violent, coercive misdirection, reflected indelibly by the unanimous jury verdict.

Coupled with this, however, are the additional facts that Instruction No. 10 is not authorized for use in civil cases under MAI and the record in this case does not present any circumstances which would justify its use. Accordingly, this case must be reversed and remanded for a new trial.

Since upon a retrial of this case, this situation may again arise and instructions such as Instruction No. 10 be given, it should be observed that where it is necessary to give additional instructions to a jury during the course of its deliberations and a new issue is thereby injected into a case, that litigants may be permitted to argue that issue to the jury. Clancy v. City of Joplin, 181 S.W. 120, 122-123 [4, 5] (Mo. App. 1916); Loveless v. United States, 104 U.S.App.D.C. 157, 260 F.2d 487, 488 (D.C. Cir. 1958). An instruction admonishing a jury to arrive at a verdict does not present a new issue and does not require that the court permit additional jury argument. Such would rest within the sound discretion of the trial court.

The typographical or typing error resulting in the use of a period instead of a comma in Instruction No. 3 will doubtless not recur upon retrial. Johnson v. West, 416 S.W.2d 162, 164-165 [1, 2] (Mo. 1967).

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

All concur.

      . This instruction, in form similar to the Cov-ington instruction, is now MAI-CR 1.01 but it will be noted that such instruction omits any reference to the cost of trial.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Larry C. WASHINGTON, Appellant.
    No. KCD 28598.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.
    Motion for Rehearing and/or Transfer Denied April 15, 1977.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Sixteenth Judicial Circuit, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and SHAN-GLER and DIXON, JJ.
   PER CURIAM:

This is a companion case to that of State v. Powell, 542 S.W.2d 588 (Mo.App.1976), both of which concerned the armed robbery of the A & P grocery store at 99th and Holmes Streets in Kansas City, Missouri, on March 13, 1975, at about 8:15 p. m. The sufficiency of the evidence is not here challenged, and a recitation of the facts may be found in the Powell case, supra. The jury fixed appellant’s punishment at 20 years upon its finding of his guilt of robbery in the first degree, and the court accordingly sentenced him to 20 years imprisonment in the Department of Corrections.

Appellant’s first point is that the court erred in admitting into evidence weapons, drugs, and United States stamps recovered from the trunk of appellant’s car because they were products of an illegal search and seizure in violation of the 4th and 14th amendments to the U. S. Constitution. As developed in the argument portion of the briefs, the bases for the contended illegal search and seizure are: (1) the affidavit upon which the warrant was based did not recite the requisite probable cause for its issuance; and (2) the affidavit was defective insofar as it failed to allege the time at which the crime was committed.

The application, affidavit for search warrant, and the warrant itself were produced to this court, at the request of the court, at the time of oral argument. Each document recites that the thing to be searched was a “1967 Cadillac, Black vinyl/tan color, 4 door, hardtop, Missouri 1976 License B3P-021”, and described the property to be searched for and seized: “1. Green/white check tweed two piece leasure suit; 2. Black ski mask; 3. Unknown handguns; 4. Personal I.D. of Peggy E. Polland; 5. Unknown amount U. S. Currency.” As to probable cause, both the application and the affidavit set forth that the listed property to be searched for and seized, was then located upon the described thing (Cadillac car) based upon the following facts: “Larry C. Washington N/M 3-13-55 [obviously referring to his race, sex and birth date] weas arrested on 3-13-75 at 9:00 P.M. for the robbery of A & P Store, 540 W. 99th St. He was driving the vehicle to be searched when he was arrested. He has been positively identified in a line up, by two witnesses to the robbery. The 1967 Black vinyl/tan Cadillac vehicle, was seen in the A & P Lot prior to the robbery and the license number was recorded.” As is apparent, these documents did not set forth the precise time that the A & P robbery occurred.

§§ 542.271, 542.276, RSMo (Laws 1974, p. 922, §§ 3, 4), govern the issuance of search warrants, and the matters to be contained in the application and supplementary affidavit therefor. § 542.276 2.(5) requires that the application “State facts sufficient to show probable cause for the issuance of a search warrant including, with respect to any weapon, tool, device, or substance alleged to have been used as a means for committing a felony, the nature of such felony and the date and place thereof; * * * (Italics added.)

It would be much better practice for the purpose of informing the magistrate of the existence of probable cause for the issuance of the search warrant to set forth in the application and affidavit not only the precise time of the prior robbery but also that the “unknown handguns” were used in the robbery, and other described property was taken in the robbery, all so as to comply with the requirements of the statute, supra. The facts alleged do, however, inform the magistrate sufficiently to cause him to believe that probable cause existed: The Cadillac, seen at the scene of the robbery and its license number then recorded, is so described in the documents; importantly, appellant’s arrest for the robbery on March 13, 1975, at 9:00 p. m., and the time the warrant was sought on March 14, 1975, at 12:22 a. m., are set forth; the facts that appellant was driving the Cadillac at the time of his arrest, and his identification by two witnesses to the robbery, are set forth. Thus, appellant’s complicity in the commission of the crime and the use of the automobile therein, the vehicle sought to be searched were adequately presented to the magistrate.

Several cases cited by appellant speak of the crucial nature of time to the concept of probable cause. United States v. Johnson, 461 F.2d 285 (C.A.10th 1972); Staker v. United States, 5 F.2d 312 (C.A.6th 1925); Poldo v. United States, 55 F.2d 866 (C.A.9th 1932); Kohler v. United States, 9 F.2d 23 (C.A.9th 1925); and Rosencranz v. United States, 356 F.2d 310 (C.A.1st 1966). These cases do not have the elements of identification, description of automobile, time of arrest, and time of application of a search warrant which are present in this case as above mentioned, and thus may be distinguished. In the Johnson case, loe. cit. 461 F.2d 287[5, 6], in affirming the conviction, it was said, “The Commissioner should have considered all of the elements of probable cause, including the nature of the criminal activity, the length of the activity, and the nature of the property to be seized; probable cause, in turn, should have been contemplated in view of the practical considerations of everyday life. * * * The test is one of common sense.” That rule of evaluating the existence of probable cause is the same in this state. State v. Phillips, 532 S.W.2d 533, 535[2, 3] (Mo.App.1976), and cases cited. The Rosencranz case involved an absence of any averment of time when the affiant received information from his anonymous informant, or as to the time when affiant detected the odor of mash, where here, the affidavit is obviously made on the peace officer’s personal knowledge of the facts set forth, above outlined. None of the cases cited by appellant is persuasive that the existence of probable cause for the issuance of a search warrant was absent in this case.

There exists another basis for justifying the search of the Cadillac. Under the exigent circumstances surrounding the arrest of appellant, no search warrant was required. The facts related in State v. Powell, supra, show that about 5 minutes after the A & P robbery, the holdup call was received by Officer Bass. He then stopped the Cadillac and appellant was arrested and a search of the Cadillac was made, except for the trunk. Appellant said he had no key to the trunk, and the car was taken to the police tow lot at 1st and Lydia, where it was searched at about 1:00 a. m. the next morning. The quantity of money, drugs, handguns, a green plaid leisure suit, stocking caps, ski masks, and two other individuals were found in the trunk. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), controls. And see also State v. McCarty, 460 S.W.2d 630, 637 (Mo.1970), following Maroney, holding, “[T]he convertible could have been searched ‘on the spot’ at the place of arrest because there was probable cause to search and because of its mobility. That probable cause and the mobility of the convertible still obtained at the police station.” Point I is overruled.

Appellant’s second point is that the court erred in failing to grant a requested mistrial because witness Officer Bass injected hearsay testimony as to appellant’s identification. The matter arose in this manner: “Q. Now, whose responsibility was it to obtain the search warrant? A. Mine. Q. All right. And what did you do in connection with that? MR. JOHNSON: Objection. Irrelevant. THE COURT: Objection overruled. A. After Mr. Washington had been positively identified by two of the victims in the robbery — MR. JOHNSON: Objection. Hearsay. THE COURT: Objection sustained.” Counsel then moved that the court admonish the jury and for a mistrial. The court overruled the motion for mistrial but did admonish the jury to disregard the last answer of the witness. Sustaining of the objection and instructing the jury to disregard the testimony and then refusing to grant a mistrial is not an abuse of discretion. State v. Allen, 343 S.W.2d 63 (Mo.1961); State v. Humphrey, 462 S.W.2d 804 (Mo.1971). Point 2 is overruled.

The judgment is affirmed.


text:
    Glen Russell SHEPARD, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28697.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.
    Motion for Rehearing and/or Transfer Denied April 15, 1977.
    Thomas R. Bellmann, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

This appeal is taken from an order by the court below denying a Rule 27.26 motion to vacate judgment and sentences previously entered upon appellant’s pleas of guilty to charges of carrying a concealed weapon and stealing over $50.00. He received a sentence of four (4) years on the first charge and eight (8) years on the second, such sentences to run consecutively. Two other pending charges against the defendant. were dismissed by the prosecutor; the appellant’s counsel requested a pre-sentence investigation, and the state made no objection to that procedure; and, the state made no recommendation to the trial court as to sentences at these guilty plea proceedings.

These pleas were entered on March 28, 1974, but the record reveals that the pre-sentence investigation was not received until the latter part of May, 1974, and sentences were not imposed until November 22, 1974. At least part of this delay was due to the fact that other charges were pending in .the federal court of the state of Nevada and in the state court in Arizona, in one or both of which the appellant testified as a witness for the prosecution.

At the sentencing hearing below, the assistant prosecuting attorney did make a recommendation to the court that the appellant be given the maximum penalty of five years on the first charge and ten years on the second, and the sole point raised by appellant on this appeal is that in so doing, he materially breached a plea bargain agreement previously reached between appellant’s then counsel and the assistant prosecuting attorney that included the agreement that the state would make no recommendation as to sentences at any stage of the proceedings. Appellant’s argument stands upon the proposition that such breach of the agreement rendered his guilty pleas involuntary.

On the other hand, while the state concedes that a plea bargain was in fact entered into, its position both at the hearing on the motion to vacate and here, is that the agreement was only that the state would make no recommendation as to sentence at the guilty plea proceedings. The state disclaims the fact of any agreement that it would make no recommendation at the sentencing proceedings and asserts that there was no breach of the plea bargain agreement.

The issue here, thus, narrowly circumscribed and confined, is governed by certain well-defined principles which must be applied to the facts in this record. The law is now well settled that the “constant factor” in plea bargaining agreements “is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled ”. (Emphasis supplied). Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 499[5], 30 L.Ed.2d 427 (1971).

In Santobello, as in the case at bar, it was shown that part of the plea bargain agreement was that the prosecutor would make no recommendation as to the sentence. Several months after the entry of the guilty plea pursuant to the agreement, the defendant appeared for sentencing. At that time, the defense counsel, judge and prosecutor were not the same persons involved in the guilty plea proceedings and the then prosecutor recommended to the court that the maximum sentence be imposed. Upon objection by defense counsel to this recommendation as violative of the previous agreement, the trial court stated that it would not be influenced, in any event, by the recommendation of the prosecutor and that any such recommendation did not “make a particle of difference” to the court. The maximum sentence was then imposed. This conviction was affirmed by the Supreme Court, Appellate Division of New York, 35 A.D.2d 1084, 316 N.Y.S.2d 194 (1970). Certiorari was granted by the Supreme Court of the United States, which court vacated the judgment and sentence, and in so doing, stated (404 U.S. at 262, 92 S.Ct. at 499[6]):

“On this record, petitioner ‘bargained’ and negotiated for a particular plea in order to secure dismissal of more serious charges, but also on condition that no sentence recommendation would be made by the prosecutor. * * * ” (Emphasis supplied)

The court remanded the cause to the New York state court to decide whether the circumstances of the case required that there be specific performance on the guilty plea “bargain”, in which event the court stated that the “petitioner should be resentenced by a different judge”, or whether the petitioner be granted the opportunity to withdraw his guilty plea.

At least three of the circuit courts of the United States have followed the lead of Santobello.

In United States v. Crusco et al., 536 F.2d 21 (3rd Cir. 1976), the defendant agreed to plead guilty to one count of the charge in return for the government’s promise to drop the second count and also to take no position on sentencing on the first count. However, at the sentence hearing, the government attorneys attempted to portray the defendant as a major underworld criminal figure who was dangerous to have on the public streets. The court there said, l.c. 26:

“* * * We see the Government’s characterization as a transparent effort to influence the severity of Cimmino’s sentence * * * ”

and permitted him to withdraw his guilty plea. The court further stated, in connection with the government’s promise to the defendant to take no position on sentencing, l.c. 26:

“* * * Once it makes a promise, San-tobello requires strict adherence. * * * >>

In Dugan v. United States, 521 F.2d 231 (5th Cir. 1975), the court said, l.c. 233:

“It is axiomatic that no guilty plea that has been induced by an unkept plea bargain can be permitted to stand.”

In Geisser v. United States, 513 F.2d 862 (5th Cir. 1975), the court, addressing itself to plea bargains, stated, l.c. 870-871:

“What we are saying is that the United States Government must in the light of the commitment made by its prosecutorial arm look carefully at the constitutional obligations owing Bauer. When it looks * * * all will see Santobello as a lion in the streets * * *
******
Thus, following Santobello, defaulted plea bargains must be remedied.”

To like effect and adopting the rule in Santobello, see United States v. Brown, 500 F.2d 375, 377 (4th Cir. 1974).

The far-reaching principle of Santobello has been embraced by the Supreme Court of Missouri in State of Missouri v. Hoopes, 534 S.W.2d 26 (Mo. banc 1976) where a plea bargain resulted in an agreement by the prosecutor that he would dismiss a charge of murder and accept a guilty plea of robbery in the first degree by means of a dangerous and deadly weapon. As a result of this agreement the defendant signed a confession to the robbery charge at the behest of his attorney. While the prosecutor did not effectively deny the agreement, he decided to try the defendant on both charges and was permitted to introduce the written confession to the robbery charge over the objection of defense counsel. Hoopes was convicted on both charges, appealed and his conviction was reversed upon the grounds that the confession was improperly admitted into evidence since it was the result of an unkept plea bargain. In so ruling, the court quoted at length from Santobello as to the purpose and utility of plea bargaining in the practical administration of criminal justice and quoting from Santobello, the Hoopes court stated, l.c. 36[6]:

“* * * ‘[\V]hen a piea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.’
What is said supra of the federal courts is equally applicable to state courts." (Emphasis supplied)

Pertinent to the question here presented the record on this appeal includes a transcript of the proceedings upon the entry of the guilty pleas. As to the first charge of carrying a concealed weapon, the able counsel and trial judge made the orthodox and complete record to satisfy the constitutional requirements and then the following colloquy appears:

“THE COURT: Any record you gentlemen wish to make?
MR. HOGSETT (Assistant Prosecuting Attorney): The state has no recommendation, Your Honor. I do understand that the defense counsel intends to ask the Court for a pre-sentence investigation, and we have no objection to that.
THE COURT: Mr. Katz, any record you wish to make?
MR. KATZ (Defense Counsel): Yes. We would ask the Court to institute a pre-sentence investigation.
THE COURT: Mr. Katz, as a result of your discussions with the representatives of the State, were you under the impression that no recommendation would be made, other than for pre-sentence investigation?
MR. KATZ: Yes, Your Honor.
THE COURT: Mr. Shepard, was that also your understanding as to what the State would recommend?
THE WITNESS (Shepard-defendant): Yes.
MR. HOGSETT: Now, for the record to be clear, Your Honor, we’re not recommending it, we’re simply not objecting to it.
THE COURT: All right. Perhaps I should have phrased it by asking if it was the understanding of both Mr. Katz and Mr. Shepard that the State would not be making any other recommendation, other than not opposing the request for a pre-sentence investigation?
MR. HOGSETT: That’s correct.
THE COURT: Is that true, Mr. Katz?
MR. KATZ: Yes, Your Honor. In addition to dismissing the other two cases that are involved.
THE COURT: Is that your understanding, Mr. Shepard?
THE WITNESS: Yes, sir. ” (Emphasis supplied)

On the guilty plea proceedings with reference to the stealing charge, the following appears:

“THE COURT: Do you have any record to make gentlemen?
MR. HOGSETT: The State has no recommendation in this case, Your Honor. Again, I understand the defense counsel intends to ask the Court for a presen-tence investigation, to which the State has no objection.
* * * * * *
THE COURT: Mr. Katz, was it your impression that the State would not make any recommendation in this case ?
MR. KATZ: Yes, Your Honor, other than—
THE COURT: Not opposing a pre-sen-tence investigation?
MR. KATZ: Yes, and dismiss the other two cases.
THE COURT: Was that your understanding?
THE WITNESS: Yes, sir. ” (Emphasis supplied)

This record is clear that the prosecutor acknowledged that part of the plea bargain agreement was that the state would make no recommendation as to sentences. No limitation as to time was stated by the prosecutor although if the agreement was as now defined by the State, it would have been a simple matter to have qualified the prosecutor’s acknowledgment by some limiting phrase such as “at this time” or “at these guilty plea proceedings”.

The sentencing could not occur at the time the guilty pleas were entered since a pre-sentence investigation was to be obtained and as the trial court, the prosecutor and defense counsel were aware, obtaining such a report involved the lapse of varying lengths of time. In fact, because of that and other reasons above mentioned, several months elapsed between the guilty pleas and sentencing. An agreement not to make a recommendation at this stage of the proceedings would be meaningless.

At the sentencing proceedings the same prosecutor, Mr. Hogsett, did recommend maximum penalties on each of the charges and thus breached the prior plea bargain agreement. Neither he nor the trial court saw “Santobello as a lion in the streets”. Geisser v. United States, supra.

The trial court in its findings of fact and conclusions of law made no specific finding as to the existence or nonexistence of a plea bargain agreement which incorporated a consideration that the State would make no recommendation as to sentences. However, the court seemed to accept the fact that such a plea bargain had been made but placed the emphasis for its ruling on the facts that the prosecutor’s recommendation at the sentencing was not binding upon the court; that any agreement with the prosecutor would be separate and distinct from “his (the defendant’s) contract with the court”; that the court does not participate in the plea bargaining process; that no objection was made at the sentencing proceedings as to the prosecutor’s recommendations; that the court did not follow those recommendations; and, that it did not find Santobello v. New York, supra, controlling or compelling.

It is futile to speculate as to the effect that the recommendations of prosecutorial authorities may or may not have on a sentencing court in a given case. As a matter of common practice such recommendations are requested and to say that they are never considered or given any weight would be unrealistic. In any event, the appellant and his counsel placed importance upon the consideration that no recommendation would be made in this case when the plea bargain was accomplished.

In the interest of justice and in recognition of the importance of plea bargaining agreements in the system of administration of the criminal law and the necessity that such agreements to be kept inviolate by the prosecutorial authorities, the judgments and sentences herein are vacated and the cause is remanded with directions that a further evidentiary hearing be held and additional findings of fact made as to whether or not the plea bargain was made and the terms and conditions thereof and if a breach of such agreement occurred and thereafter for such proceedings as are then appropriate under this decision.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Alonzo Jerry WRIGHT, Appellant, v. STATE of Missouri, Respondent.
    No. 29050.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.
    Motion for Rehearing and/or Transfer Denied April 15, 1977.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from denial, after evidentiary hearing, of motion under Rules 27.25 and 27.26, V.A.M.R., to withdraw pleas of guilty and to vacate and set aside judgments of conviction and sentences of life imprisonment following said guilty pleas on two counts of murder, first degree, and one count of robbery, first degree. Appellant’s contentions question (I) whether he was denied his right to effective assistance of counsel, and (II) whether there was conclusive evidence that his guilty pleas were the result of threats of violence and coercion. Affirmed.

On December 3, 1971, an indictment was returned which charged Alonzo J. Wright with the murder, first degree, of John D. Kemp (Count I), the murder, first degree, of William G. Simmons (Count II), and the robbery, first degree, of said John D. Kemp (Count III), at a service station at 75th and Prospect, Kansas City, Jackson County, Missouri, November 20, 1971.

On December 7, 1971, Alonzo J. Wright was arraigned and a plea of not guilty was entered. On December 8, 1971, Lewis E. Pierce, having been employed in defendant’s behalf, entered his appearance, and the not guilty plea was again entered on behalf of defendant.

On January 14, 1972, defendant, by his attorney, Mr. Pierce, moved for a mental examination under Missouri’s mental responsibility law, Chapter 552, RSMo 1969. On January 19, 1972, the motion was sustained and defendant was transported to Fulton State Hospital for mental examination. A report of opinions, findings, and conclusions by C. E. Merrifield, D. 0., dated March 7, 1972, was filed of record and copies were furnished to counsel.

On April 18, 1972, irrespective of the foregoing report finding defendant competent to proceed, defendant, by his attorney, Mr. Pierce, moved for a second mental examination of defendant to be conducted at Western Missouri Mental Health Center. Defendant, by his attorney, also moved to sever trial of the offenses charged in the indictment.

On April 25, 1972, defendant, with his attorney, Mr. Pierce, appeared in open court, withdrew his not guilty pleas previously entered on December 7 and 8, 1971, and entered pleas of guilty to all three charges in the indictment. The court, the Honorable Thomas J. Stubbs, after determining, among other things, that defendant had full opportunity to consult with counsel and that his pleas did not result from inducements or promises, accepted his guilty pleas and sentenced him as aforesaid.

On June 9,1975, Alonzo J. Wright initiated this proceeding by filing his motion to vacate. On October 1, 1975, and March 16, 1976, movant amended his motion and, as so amended, his motion was heard March 22, 1976.

Movant, Alonzo J. Wright (Jr.), testified he was arrested November 24, 1971, for the crimes of robbery and murder. Subsequent to the arrest, his father hired Lewis Pierce to represent him. According to Alonzo, Jr., Mr. Pierce visited him once in the jail for about three minutes; he and Mr. Pierce never discussed the case, elements of the crime, trial strategy, police reports, or defenses. He told of threats “if either of us was picked up and charged with the crime, that we were to take the blame for it; and that if we didn’t our families would be harmed.” At the proceedings on his guilty pleas, he was before the court and conferred with his attorney and his father. His attorney indicated the difficulties “because of the confession,” and the risk of the death penalty; and his father said a guilty plea “was the only way and that if I didn’t do anything else, to do that for him.”

Movant’s father, Alonzo J. Wright, Sr., claimed he was not permitted to see his son at the police station following the arrest. On November 26, 1971, he employed Mr. Pierce as counsel for his son. “Mr. Pierce took the case for the sum of $6,000.00,” and they spoke numerous times of a mental defense. At one time, he said “he wanted a thousand dollars to take my son to a private doctor, which I paid for a private psychiatrist which my son never did get.” He stated that Mr. Pierce never gave him any messages to give to his son about the case. Mr. Wright stated that on the date of the guilty pleas he told his son that he should plead guilty. He recited also that he had told Mr. Pierce of threatening calls which he thought came “f’om the family of the people that was killed.” He also reported the calls to the F.B.L He did not communicate any knowledge of threats to his son.

Lewis E. Pierce has practiced law for twenty-five years and has specialized in representation and defense of persons charged with crime. In representing Alonzo J. Wright, he met with him and discussed his case between “six to ten times.” He was unable to be specific as to dates because Mr. Wright, Sr., had been given his file at some time after the guilty pleas were entered. “I have a recollection * * * of discussing with him his confession, of which I had a copy * * * as well as all the statements involving him by other people. * * * it was a very damaging statement. * * * I filed a Motion to Suppress. * * * eventually we got done with the fact that he had signed this confession and that the statements in it were true; and that * * * was necessary for me to know * * * in order for me to determine what would be the best type of defense. * * * after talking it over with Alonzo I felt that it was a very damaging piece of evidence.” The State’s file, to which he had access, contained confessions by other people, particularly a “confession by Lawrence Daniel Baker * * wherein he testified * * * that Alonzo was the one that did the shooting of both people. He asked Alonzo why he had to kill them, there was no reason for it, he only got $105.00 for killing two people.” He also had copies of statements of Sharon Bishop, Willie Anderson, and John Sharriff which implicated and identified “both Baker and Alonzo * * * as the people * * * in the station immediately before the murders.” He met with Mr. Wright, Sr., “many many times. * * * He wanted me to do anything I could to keep his boy from getting the death penalty. Mr. Wright was aware of this confession * * * [and] the other statements; we talked about them. The discussion all the way along was what could be our possible defenses * * and the only possible defense * * * in the light of all the statements and all the discovery * * * was a mental defense; and we discussed that a number of times. * * * he went to Fulton and they found him competent to stand trial. Out of an excess of caution * * * I requested another one which was given to him by Dr. Zwerenz * * * and Dr. Zwerenz found him competent; that, notwithstanding, I filed a motion * * * to let the State know that we were going to depend on the defense of diminished responsibility in case we went to trial, because I felt if we did go to trial and the death penalty was going to be asked for that our best shot was a mental defense * * The father did not communicate any threats “until after the guilty plea * * * if he had mentioned it before it wouldn’t have been a proper plea * * In his discussions with Alonzo (Jr.), “it was my impression that he felt that if this was a dangerous case to him, he wanted to escape the death penalty, and if I felt the evidence was strong enough * * he would consider a guilty plea. That’s as fair as I can be to him.” In discussions between himself and his client and his client’s father, “I wanted us all to talk together to be sure that there was no question about what they wanted. I was ready to go to trial; if he wanted to plead guilty the State had agreed that they would not * * * ask for the death penalty and I told him [them] about this. * * * after I discussed the alternatives * * * I asked them to discuss it so that they could have an absolute understanding between themselves * * *. They told me that they felt in the light of all the facts and the circumstances as I had described it to them and as they knew it, that they felt that a guilty plea would be better than taking a chance with the death penalty in the trial.”

Appellant argues (I), emphasizing favorable testimony given by himself and his father to the effect that counsel failed to talk with his client sufficiently to develop a defense and that his actions coerced him to waive valuable trial rights, that he did not receive effective assistance of counsel.

He argues (II), again emphasizing his own and his father’s testimony that he pleaded guilty because of threats of violence to his family and counsel’s threat that he would get the death penalty if he went to trial, that his guilty pleas were thus involuntary.

The difficulty with both of appellant’s contentions is that they disregard credible evidence tending to prove the contrary, as found by the trial court.

In proceedings under Rules 27.25 and 27.26, V.A.M.R., to withdraw a guilty plea and to vacate the sentences which are imposed as a result, the burden is on the defendant to prove by a preponderance of the evidence that manifest injustice has occurred, State v. Jackson, 514 S.W.2d 638 (Mo.App.1974); and conflicts in the evidence are for the court to resolve, Spencer v. State, 534 S.W.2d 598 (Mo.App.1976).

The undisputed facts, particularly those found from the guilty plea proceedings, and the testimony of Mr. Pierce, were obviously accepted by the trial court as the credible version of the facts, and that version stands in contradiction of appellant’s case. It also demonstrates that Alonzo J. Wright received the effective assistance of counsel to which he was entitled, and that he failed in his burden to demonstrate that alleged acts or omissions of counsel went beyond errors of judgment or strategy and were of such character as to result in deprivation of the right to a fair trial. Cook v. State, 511 S.W.2d 877, 881 (Mo.App.1974); Crow v. State, 514 S.W.2d 13, 14 (Mo.App.1974); Johnson v. State, 516 S.W.2d 500, 501 (Mo.App.1974); Owens v. State, 543 S.W.2d 810, 811 (Mo.App.1976).

Similarly, the undisputed facts and the testimony of Mr. Pierce provide sufficient evidence upon which to deny appellant’s second contention. The father’s part in the determination to enter guilty pleas does not support a charge that Alonzo J. Wright was coerced to plead guilty. The father is shown to have weighed the alternatives, and his inducement as a parent does not constitute coercion warranting a conclusion that his son’s guilty pleas were involuntary. Schuler v. State, 476 S.W.2d 596 (Mo.1972). Nor does Mr. Pierce’s part in the determination that his client plead guilty rise to coercion. He advised his client of the difficulties in defending the case and the risk of a death penalty, all of which appears to have been understood and considered by the client. Mr. Pierce had a duty to provide such information to his client, Stewart v. State, 542 S.W.2d 544 (Mo.App.1976); Goodloe v. State, 486 S.W.2d 430 (Mo.1972); and if the client’s decision to plead guilty was influenced by the possibility of the death penalty, such fear did not render his guilty pleas involuntary, Taylor v. State, 539 S.W.2d 589 (Mo.App.1976); Beeman v. State, 502 S.W.2d 254 (Mo.1973). The threats of violence to the family of Alonzo J. Wright (Jr.), if so, did not enter into his decision to plead guilty because they are not shown to have been communicated to him or to counsel until after the guilty pleas were entered. Too, the testimony on the subject of threats is vague and inconclusive and the court was not bound to give it credence. Bonner v. State, 535 S.W.2d 297 (Mo.App.1976).

Judgment affirmed.

All concur.

      . The sentences on the murder counts were ordered to run consecutively; the sentence on the robbery count was ordered to run concurrently with the other two sentences.

      . Lawrence Baker was tried to a jury, convicted of these crimes, and sentenced to life imprisonment on each murder count, and to 99 years’ imprisonment on the robbery count. The conviction was affirmed. State v. Baker, 524 S.W.2d 122 (Mo. banc 1975).


author: WELBORN, Special Judge.

text:
    MALOTT ELECTRIC COMPANY, INC., Appellant, v. BRYAN ENTERPRISES, INC., and Prudential Insurance Company of America, Respondents.
    No. KCD 28253 and 28317.
    Missouri Court of Appeals, Kansas City District.
    Feb. 28, 1977.
    Motion for Rehearing and/or Transfer Denied April 19, 1977.
    Application to Transfer Denied May 10, 1977.

      H. Fred Northcraft, James E. Kelley, Jr., Kansas City, for appellant.
    H. Michael Coburn, Lloyd C. Loomis, Kansas City, for respondents.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   WELBORN, Special Judge.

Action by electrical contractor to recover for work and materials furnished pursuant to contract in construction of shopping center and to have judgment enforced as a mechanic’s lien against the premises. On motion of owner of premises for partial summary judgment, trial court denied claim for lien. Plaintiff appeals from such judgment.

Bryan Enterprises, Inc. (“Bryan”) as owner contracted with Bennett Construction Co., Inc. (“Bennett”) as general contractor to construct the Brywood Centre Shopping Center at 63rd and Glen Ridge Cut-Off in Kansas City. On December 2, 1971, Bennett contracted with Malott Electric Company, Inc. (“Malott”) as subcontractor to perform electrical work on the project at a “guaranteed maximum” contract price of $291,733.00.

In June, 1972, Bennett withdrew as general contractor for the project. Bryan notified Malott that it would assume the obligations of Bennett under the subcontract and the work proceeded.

In December, 1972, the Brywood Centre was sold to the Prudential Insurance Company of America (“Prudential”).

On January 19, 1973, Malott filed a mechanic’s lien statement with the clerk of the Jackson County Circuit Court. The statement of account accompanying the claim was as follows:

Subsequently, Malott filed its petition against Bryan to recover for the value of materials and labor supplied but not paid for in the amount of $219,094.77, and to foreclose the mechanic’s lien.

Prudential filed its motion for partial summary judgment, seeking dismissal of the mechanic’s lien portion of plaintiff’s petition on several grounds, among which was that plaintiff had failed to file with the circuit clerk any “true account” of the money allegedly due plaintiff as required by § 429.080, RSMo 1969.

The trial court sustained Prudential’s motion on that ground. The judgment so entered was designated as final for the purposes of appeal (Rule 81.06) and this appeal followed.

In this court, appellant contends that “under all the circumstances,” its mechanic’s lien statement did substantially comply with the “just and true account” requirement of § 429.080 because its statement fell within the “lump sum” rule.

“ * * * [Wjhere a lien claimant is an original contractor and has made a lump sum contract with the landowner, his lien account may be stated in a lump sum and need not be itemized in order to be considered sufficient. The reason ordinarily given is that the landowner is bound by his contract and should be familiar with the items required for a compliance therewith. Mississippi Woodworking Company v. Maher, Mo.App., 273 S.W.2d 753; State ex rel. St. Francois County Building and Loan Ass’n v. Reynolds, 288 Mo. 522, 232 S.W. 1035.” Wadsworth Homes, Inc. v. Woodridge Corporation, 358 S.W.2d 288, 291[3] (Mo.App.1962).

Although appellant was originally a subcontractor, the trial court concluded, in effect, that after “Bennett bowed out,” appellant became a prime contractor. Prudential has not here attempted to support.the trial court’s judgment on the grounds that appellant’s status was that of a subcontractor. Prudential does contend that the “lump sum” rule is not properly applicable here because appellant’s lien statement shows that the amount it claims is owed it is for “extras,” in excess of the originally agreed to contract price. It points out that the agreed contract price was $291,733 and that the statement shows the receipt of $346,-113.12, and a claimed balance due of $219,-094.77. Prudential contends that when a contractor is seeking to enforce a mechanic’s lien based upon “extras” in addition to the agreed lump sum contract price, the contractor is required to itemize such extras and may not simply treat them in the same manner as the original contract price. See Schroeter Bros. Hdw. Co. v. Croatian “Sokol" Gymnastic Ass’n et al., 332 Mo. 440, 58 S.W.2d 995, 999—1000[1—3] (1932).

Appellant would avoid the holding in that case in the circumstances of this case as disclosed by an uncontroverted affidavit of its president, filed in opposition to Prudential’s motion for partial summary judgment.

According to this affidavit, when appellant began work under the contract with Bennett, final plans for the electrical work, approved by the tenants, were not available, but at Bennett’s request, and subsequently Bryan’s, after it took over the contract, appellant proceeded with the work. Numerous changes in the plans were made after appellant started its work, with the result that much of its work had to be torn out and redone, sometimes more than once, to conform to the final plans. A few written change orders, called for by the contract, were made, but, after Bryan took over the contract, written change orders were not submitted because Bryan’s president had instructed plaintiff not to do so, but to perform whatever extra work was necessary and represented that Bryan would pay for such work at the conclusion of the project. Further the affidavit asserted that on November 3, 1972, appellant’s president advised Bryan and Prudential that some $221,000 was owed appellant and in a subsequent meeting he stated appellant’s claim to Bryan and Prudential representatives “with as much particularity as [he] was able at the time.” Bryan declined to pay appellant any more, although its president did agree to meet privately with appellant’s president and discuss the claim, but the meeting was never held.

Appellant’s position is that if the contract had been followed and written change orders with advance pricing had been submitted for the numerous changes in the project, it would have been entitled under the “lump sum” rule to have made its lien claim in the form here employed because “the owner should be as familiar with extra work done pursuant to written change orders, the price of each such change and the sum of those prices as he is with the work within the scope of the contract and its price.” Appellant argues that Bryan and its successor, Prudential, should not be allowed to obtain advantage from the lack of formal change orders and advance pricing because such lack was instigated by Bryan for its benefit. •

Whether the premise of this argument that extras for which the price was agreed could be lumped as under a fixed price contract is consistent with the holding in the Schroeter Bros. Hdw. case, supra, need not be pursued. The logical basis for the “lump sum” rule would appear to have equal application to the assumed situation. However, to permit, in this case, a statement such as appellant here employed for the extras would require that a basic object of the lien notice be ignored.

“ * * * [T]he legislative purpose of requiring the filing of the ‘just and true account’ is so that the landowners and others interested may learn from the lien statement what the lien claimant asserts he has furnished, thus permitting an investigation to be made to determine whether the materials actually went into the building; whether they were lienable items, and whether the amount charged is proper. Grace v. Nesbitt et al., 109 Mo. 9, 18 S.W. 1118; State ex rel. O’Malley v. Reynolds, 266 Mo. 595, 182 S.W. 743.” Wadsworth Homes, Inc. v. Woodridge Corporation, supra, 358 S.W.2d at 291[2],

The last mentioned factor is undoubtedly one of the considerations .which support the requirement that the lien statement, when the claim is based upon quantum meruit, itemize the components of the claim. Schroeter Bros. Hdw. Co. v. Croatian “Sokol" Gymnastic Ass'n, supra. The lien statement in this case provides no basis whatsoever for ascertaining the propriety of the amount demanded. The fact that Bryan requested no change orders would undoubtedly excuse compliance with the contractual requirement for such documentary evidence of authorized changes. However, the requirement of a “just and true account” is not a contractual requirement but is a condition of the right to take advantage of the benefit of the mechanic’s lien law. “ * * * [T]he fact that the remedy is extraordinary would certainly necessitate that a lien claimant substantially comply with the requirements of the statute in order to avail himself of the benefits thereof.” Mississippi Woodworking Co. v. Maher, 273 S.W.2d 753, 755[1] (Mo.App.1954). The account requirement, which is for the benefit of the public as well as the property owner (Mitchell Planing-Mill Co. v. Allison et al., 138 Mo. 50, 40 S.W. 118 (1897)) is not supplied by prior oral explanation to the contractor.

The trial court did not err in concluding that the lien statement in this case failed to meet the requirement of § 429.080 of “a just and true account.” The judgment must be affirmed.

Judgment affirmed.

All concur.