author: STEWART, Judge. KELLY, Judge,

text:
    STATE of Missouri, Plaintiff-Respondent, v. George STUBENROUCH, Defendant-Appellant.
    No. 38700.
    Missouri Court of Appeals, Eastern District, En Banc.
    Oct. 16, 1979.
    Motion for Rehearing or Transfer Denied Nov. 20, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      Lawrence J. Fleming, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Chief Counsel, Asst. Atty. Gen., Nanette Laughrey, Stanley Robinson, Asst. At-tys. Gen., Jefferson City, Daniel M. Buescher, Pros. Atty., Franklin County, Union, for plaintiff-respondent.
   STEWART, Judge.

Defendant was convicted by a jury of manslaughter and sentenced to six years imprisonment for the death of William Homfeldt, who died of a gun shot wound. He appeals from the judgment entered in accordance with the verdict of the jury. We reverse and remand.

Defendant concedes that there was sufficient substantial evidence to support the judgment. The primary issues presented are whether the court erred in refusing to give instructions submitted by defendant on the defenses of accident and self-defense.

On the issues presented we must view the evidence in the light most favorable to the defendant and give him the benefit of all reasonable inferences that may be drawn from that evidence. We ignore the evidence of the State except where it is favorable to defendant. State v. Cole, 377 S.W.2d 306, 307 (Mo.1964). Despite the fact that justifiable homicide and excusable homicide are inconsistent defenses, defendant is entitled to have both defenses submitted if there is sufficient evidence to support the submission and if defendant’s personal testimony is not relied upon to support both. State v. Randolph, 496 S.W.2d 257, 262 (Mo. banc 1973).

With these principles in mind we first review the evidence favorable to defendant with respect to the defense of excusable homicide by reason of accident.

Defendant had retired from the Metropolitan St. Louis Police Department after 28½ years of service. He purchased a home in Peaceful Valley, a lake development near Owensville in Gasconade County, and had been living there since 1970. At the time of trial in June, 1976, he was 64 years of age. When he moved to Peaceful Valley he was appointed a deputy sheriff by Sheriff He-berle and performed duties as a security guard at the lake development. He was not reappointed by Sheriff Gerloff, Sheriff He-berle’s successor. He was an officer on the board of directors of the home owners association of the lake development but no longer performed the duties of security guard.

On the evening of August 16, 1975 some young people had a party at Owensville City Park. Among the group was the deceased, William Homfeldt, 23 years of age, Lee Kreter, 22 years of age, and Rosa Mueller, 19 years of age. Kreter had purchased a keg of beer for the occasion which he put in his van. Kreter and Rosa Mueller testified that the three of them had four to five beers. They also had some wine. Kreter and Rosa Mueller testified that they could feel the effects of the liquor. The deceased was found to have had .156 percent of alcohol in his blood which would make him legally intoxicated. § 564.442 1(3) RSMo (1972).

Homfeldt, Kreter and Mueller left the park at about 9:30 PM and went to Peaceful Valley. They were met at the gate by Vanis Thompson, a security guard. In order to gain entrance to the lake development property Kreter told Mr. Thompson that Rosa Mueller owned property in the development. Mr. Thompson checked the list of owners, found she was not listed, and refused them entrance. Kreter than stated that they were going to visit Bobby Flott-mann, a friend who lived in the development. Mr. Thompson then admitted them and told them to go down and see if Flott-mann was there. They were told that if he wasn’t, they were to come right back. The trio drove by Flottmann’s house, saw no lights and assumed he was not home. They then went down to the dock. After a short while Mr. Thompson went out to check on them. He went down to the dock and found Rosa was undressing. The deceased and Kreter had undressed and were in the water hidden behind a boat. Mr. Thompson told Rosa to get her clothes on. She said she was going swimming and took off the rest of her clothes. Mr. Thompson told them that they were on private ground and ordered them to get out. He then went to defendant to get help. He went to defendant because his supervisor was on vacation and “He [defendant] was in charge.” When he aroused Mr. Stubenrouch, Thompson was nervous and visibly shaking. He told defendant that he had trouble with three young people who were drunk. He said that they cursed him and refused to leave. There had been trouble at Peaceful Valley with home burglaries, theft of equipment from boats, and with unauthorized persons drinking and having pot parties on the property. Because of Mr. Thompson’s obvious concern and his description of the condition of the persons with whom he was having trouble Mr. Stubenrouch put a snub nose .38 revolver in his pocket. Mr. Thompson drove defendant down to the dock. They parked with the headlights shining onto the dock area. Defendant and Thompson got out of the vehicle and approached the dock. Kreter and Homfeldt were on the dock. They had their trousers on but no shirts. Rosa Mueller had her blouse on and was pulling up her jeans.

As defendant approached the dock he removed the gun from his pocket and held it in his right hand at his side. He called out “Put your hands up” and Kreter and Hom-feldt raised their hands. When Thompson and defendant got to the dock Kreter had put his hands down. Rosa was to defendant’s left. She was glassy eyed and unsteady. When asked her name and age she said “I’m not going to tell you nothing.” Defendant then grabbed her arm and pulled her around in front of him and then to his right with his left hand and told her to go up into Kreter’s van. He was then holding the gun down at his right side. Homfeldt said “Take your hands off of her. You don’t have to treat her like that,” at the same time Homfeldt and Kreter started moving toward defendant. Homfeldt took • two quick steps toward defendant and Kreter took about a half step. Defendant made a small backward motion, then forward. He started to raise the gun intending to fire a shot in the air. As he was raising the gun Rosa struck him across the forearm and the gun discharged. The bullet struck Homfeldt in the chest causing an injury that resulted in his death. Defendant did not aim the pistol at any one and did not intend to shoot Homfeldt.

In contrast to the evidence favorable to defendant, evidence on behalf of the State tended to show that as Homfeldt came toward defendant the defendant said “I’m too old to be hurt by punks like you.” He then aimed the gun at Homfeldt and fired. Rosa did not touch defendant.

The statute which governs our consideration of the primary issue in this case is § 559.050 RSMo (1969). That portion of the statute applicable to this case reads:

“Homicide shall be deemed excusable when committed by accident or misfortune, in either of the following cases:
(1) In lawfully correcting a child, apprentice or servant, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without unlawful intent;”

This statute is a restatement of the common law on the subject. State v. Browning, 442 S.W.2d 55, 57 (Mo. banc 1969); State v. Cook, 512 S.W.2d 907, 910 (Mo.App.1974). Generally “the accident that will acquit a defendant is the accidental firing of the gun and not the accidental course the bullet takes.” State v. Richardson, 321 S.W.2d 423, 429 (Mo.1959). See State v. Tatum, 414 S.W.2d 566, 568 (Mo.1967). In the case at bar the defendant did not intend to fire the gun at any person and he did not intend to fire the gun at the moment it was discharged. Defendant testified that he did not aim the gun at deceased and that he did not intend to shoot him. Rather, he raised the gun so that he could fire a warning shot in the air. He testified that Rosa Mueller struck his right arm as he was raising it to fire into the air and the gun discharged when his arm was struck. The inference, favorable to defendant, to be drawn from this evidence is that the act of Rosa Mueller in striking defendant’s arm caused the gun to be discharged. There is thus sufficient evidence to warrant a finding that the gun was accidentally fired.

The State argues that the trial court correctly refused to give instructions on excusable homicide because defendant was engaged in an unlawful act. It has been held that under the statute and the common law an accidental killing is not a valid defense if the homicide is “committed in the perpetration of an unlawful act or through culpable negligence.” State v. Aitkens, 352 Mo. 746, 179 S.W.2d 84, 93 (1944). The evidence favorable to defendant would warrant a finding, however, that defendant lawfully carried a gun after Vanis Thompson called upon him for assistance. The lake development property was private property. There had been trouble with burglaries and thefts and vandalism. When Mr. Thompson came to defendant’s home to obtain assistance he was in an extremely agitated state. He told defendant that he had three drunks on his hands who would not obey his order to leave the premises. Defendant did not know what he might have to face in assisting the security guard. A person may lawfully arm himself in reasonable anticipation of an attack under such circumstances. See State v. Plassard, 355 Mo. 90, 195 S.W.2d 495 (Mo. banc 1946); State v. Welch, 37 N.M. 549, 25 P.2d 211 (1933).

The State further contends that defendant is not entitled to an instruction on excusable homicide because he was in the act of exhibiting a dangerous and deadly weapon and was therefore acting in an unlawful manner. A favorable reading of the evidence would justify defendant’s exhibiting to avert an attack. As defendant pulled Rosa across to his right side the deceased made what Vanis Thompson understood to be a threat. Deceased and Kreter advanced toward defendant at the same time. Defendant’s first reaction to the threat and to the approach of the two men was to move backward, indicating his apprehension of bodily injury at the hands of the trespassers. In order to invoke the right of self-defense by exhibiting a dangerous weapon in a rude, angry, and threatening manner, the degree of danger to be apprehended is not as great as that required in prosecution for assault with intent to kill or in cases of homicide. State v. Ruffin, 535 S.W.2d 135 (Mo.App.1976). See also State v. Plassard, supra at 497. The jury could have found that in exhibiting the gun prior to the accidental firing, defendant was reacting lawfully to that degree of danger shown by the evidence and which he apprehended. The defendant had invoked his right of self-defense, but he did not invoke the law of self-defense because the shooting was not intentional. The jury could have found that the defendant was acting in a lawful manner when the gun was discharged accidentally and without culpable negligence on the part of defendant. The defendant was entitled to an instruction on the defense of accident. State v. Crowley, 345 Mo. 1177, 139 S.W.2d 473, 476 (1940); State v. Peal, 463 S.W.2d 840, 842 (Mo.1971); State v. Meidle, 202 S.W.2d 79, 81 (Mo.1947). See also Beaty v. Commonwealth, 140 Ky. 230, 130 S.W. 1107 (1910).

Defendant also urges that he was entitled to an instruction on self-defense. We can look only to evidence other than the personal testimony of the defendant to determine whether there is substantial evi-dentiary support for submission of this theory of defense. State v. Randolph, supra. Neither deceased, Kreter or Rosa Mueller was armed. There was a threat and an advance upon defendant but at most he could have feared a simple assault. “ ‘The right to kill in self-defense is founded in necessity, real or apparent’ . . . and before such extreme measure may be lawfully resorted to the record must show that the [defendant] acted ‘under at least an apparent necessity, in order to save himself from death or great bodily harm.’ . .” State v. Parker, 403 S.W.2d 623, 627 (Mo.1966). Apprehension of a simple assault, alone, will not warrant a killing in self-defense. State v. Ruffin, supra at 137; State v. Brown, 502 S.W.2d 295, 299 (Mo.1973). While defendant’s intended action to avoid physical conduct may be justified and called for an instruction on accident, the evidence aside from that of defendant did not call for an instruction on self-defense.

Other matters which were not properly preserved for our review will not be discussed and from what we have said above are not likely to reoccur upon retrial.

For the failure to give an instruction upon excusable homicide by reason of accident or misfortune the judgment is reversed and remanded for a new trial.

WEIER, C. J., and SATZ, GUNN, STEPHAN and SNYDER, JJ., concur. •

KELLY, J., dissents in separate opinion.

KELLY, Judge,

dissenting.

I respectfully dissent because I believe the evidence, even though viewed most favorably from appellant’s vantage point, proved that' at the time he shot and killed William Homfeldt he was acting unlawfully and with culpable negligence and under Missouri law was not entitled to an instruc- ■ tion submitting the defense of excusable homicide.

The only excuse for flourishing a deadly weapon in a rude, angry or threatening manner is that the flourishing was in self-defense. State v. Overshon, 528 S.W.2d 142, 143[3] (Mo.App.1975); State v. Rice, 522 S.W.2d 656, 659[7] (Mo.App.1975).

The majority opinion, correctly I believe, holds that under the evidence appellant was not entitled to an instruction on self-defense.

Therefore, the appellant, since he was not acting in self-defense was engaged in an unlawful activity when he exhibited or flourished his .38 caliber snub-nosed revolver at the deceased and his companion and is not entitled to the instruction.

The majority concludes that the evidence, viewed favorably to the appellant, would warrant a finding that he “lawfully carried a gun after Vanis Thompson called upon him for assistance.” As authority for this view, the majority relies on State v. Plassard, 355 Mo. 90, 195 S.W.2d 495 (1946). I am of the opinion that reliance on Plassard is misplaced.

From this record one learns that the lake and dock where this unfortunate occurrence took place was “common property.” It is also uncontradicted that appellant was a member of the board of directors of the property owners association of this lakeside development. However, what rights, pos-sessory or otherwise, he, as a homeowner or a member of the board of directors of the association enjoyed in the area where the shooting took place is not in evidence.

The majority has decided that the appellant had a sufficient interest in the lake and the common property surrounding it to come to the scene armed to evict these three youthful trespassers. They have done so without any proof with respect to what rights, if any, he had in this property. They have assumed that because he was a homeowner in the lakeside development and a member of the board of directors of a property owners’ association he had the right to bear arms “to defend his home and property.” This I am unwilling to assume.

The question in Plassard was whether the trial court erroneously excluded evidence of the defendant’s title to certain farm land as a basis for a defense of protection of his home and property against a charge of felo-niously exhibiting a deadly weapon. The Supreme Court held that the trial court should have admitted the evidence to show his right to possession of the land from which he drove his two nieces and others who had come to till the land. Prior to their entry upon the land Plassard warned them not to enter. When they did, he retired to his home on the land, got his .22 caliber rifle and returned to the scene. He fired one shot either into the air or into the ground and the visitors withdrew. It was in this context that the court held that evidence which would show his right to possession should have been admitted because his only defense to the charge turned on his right to possession of the land involved and if he was defending his home and his property he had a constitutional right to bear arms. The court also said, l.c. 497: “If he was not (defending his home and his property), he was unlawfully threatening others which the statute serves to prevent.”

The Plassard court, although recognizing that one may resist trespass on his property also said that he cannot be allowed to kill a trespasser. And even though one who has a possessory interest in property may go to meet the trespasser to forbid his entry on the property and turns him back while armed, he may use the weapon “only to resist attack in case an attack should be made upon him for asserting his lawful right, and if he made no demonstration with the gun except in resistance to the approach of the trespassers upon him for the purpose of assault. . . . ”

It is clear that this recognized right of the landowner to go armed to meet a trespasser is restricted to one with a possessory interest in the home or land and appellant here has utterly failed to show what posses-sory interest, if any, he had in either the lake, the dock, the common ground, or the lakeside development which gave him this right.

State v. Ruffin, 535 S.W.2d 135 (Mo.App.1976) is distinguishable on the facts, because in that case Ruffin had been assaulted earlier the same evening by the prosecuting witness, William Cooper, and his brother, Leo Cooper. William Cooper had told the defendant that he had a “whipping coming.” About twenty minutes later the defendant saw the Cooper brothers and they advanced on him, one of the brothers with his hands up under his shirt. One of the brothers said, “Where you going to run now?” At this point the defendant “flashed” a gun at the Coopers which had been handed to him by a bystander.

The court reversed Ruffin’s conviction because the trial court refused to submit self-defense to the jury. In this context the court made the statement found in the majority opinion that “In order to invoke the right of self-defense by exhibiting a dangerous weapon in a rude, angry and threatening manner, the degree of danger to be apprehended is not as great as that required in prosecution for assault with intent to kill or in cases of homicide.”

Ruffin was an exhibiting prosecution and there was evidence to support a self-defense instruction. The majority, in this homicide prosecution, has held there was insufficient evidence to support a self-defense submission. I agree, and therefore the judgment should be affirmed.

      . “Q. Had you heard at any time either Rosa Mueller, Homfeldt or Lee Kreter threaten the defendant?
      A. Just only when he said, ‘Take your hand off of her.’ ”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Matter of The ESTATE OF Clara P. KOCH, Deceased.
    No. 39711.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 16, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 1979.
    Application to Transfer Denied Jan. 15, 1980.
    Paul Brackman, Stefan J. Glynias, Clayton, for appellant.
    Jules Q. Strong, Dale Reabon, St. Louis, for respondent.
   PER CURIAM.

MEMORANDUM OPINION

David P. Oetting, a legatee under the Will of Clara P. Koch, Deceased, appeals from a judgment of the Circuit Court of the City of St. Louis whereby his exceptions to the Final Settlement and Order of Distribution, filed by the executors of the estate in the Probate Court of the City of St. Louis, were denied in part and sustained in part.

The judgment of the Circuit Court determined that Mr. Oetting’s devise was subject to an apportioned share of the federal estate tax assessed against the estate and that this share was to be deducted from the devise to him. It also held that his devise was not subject to deductions for cost of administration of the estate and therefore no deduction for costs of administration was to be made from his devise. The judgment provided further that his devise was not subject to an assessment of the amount of the Missouri inheritance tax, but was to be assessed on the devise less his statutory exemption and a deduction for the federal estate taxes .apportioned against his devise. The Missouri inheritance tax appraiser was ordered to file an amended report in accordance with the judgment and the executors of the estate of Mrs. Koch were ordered to file an amended petition for Order of Distribution in the Probate Court of the City of St. Louis in accordance with the judgment after the inheritance tax appraiser had made his amended report.

On appeal Mr. Oetting contends that the trial court erred in its interpretation of the will of Mrs. Koch in that, (1) it ignored the direction contained in Article II thereof that all such taxes be paid out of the balance of residue of her estate, (2) in misinterpreting (a) a clear direction as to the priority of payments contained in Article IV of the Will, (b) the clause “subject to” contained in Article IV of the Will, (c) the purported “exclusion” of Mildred Koch’s general bequest from the payment of Missouri inheritance taxes and federal estate taxes, and (d) the Article VI residuary clause in relation to the payment of federal estate taxes and the Missouri inheritance tax.

Pursuant to the authority of Rule 84.16(a) we enter this Memorandum Opinion because we have determined that no error of law appears because the trial court correctly interpreted the applicable provisions of the Last Will and Testament of Clara Koch, deceased, when the entire will is read in context. In re Estate of Wahlin, 505 S.W.2d 99, 107[6] (Mo.App.1973). We have further determined that an opinion would have no precedential value. We affirm the judgment of the trial court.

All Judges concur.

      . Appellant presented two further Points Relied On. These are: “The Circuit Court erred in applying the doctrine of equitable apportionment to the instant case. In the event said doctrine is appropriate, the court misinterpreted it and applied it incorrectly;” and “The Circuit Court erred in failing to sustain appellant’s argument that the co-executors are es-topped from propounding a distributive scheme as is contained in their petition for order of final distribution by prior positions they have taken regarding the issue of the payment of taxes.” They did not comply with the requirements of Rule 84.04(d) and do not therefore preserve anything for review in this court.


author: PREWITT, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Patrick Michael CULLEN, Defendant-Appellant.
    No. 11169.
    Missouri Court of Appeals, Southern District, Division Three.
    Oct. 17, 1979.
    Motion for Rehearing or to Transfer to Supreme Court Denied Nov. 15, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      John D. Ashcroft, Atty. Gen., Steven D. Steinhilber, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    William 0. Welman, Welman & Beaton, Kennett, for defendant-appellant.
   PREWITT, Judge.

Defendant appeals from convictions of burglary in the second degree and stealing in conjunction with the burglary. After jury verdict against him, he was sentenced to consecutive terms of ten years on the burglary count and five years on the stealing count.

Defendant makes three contentions on appeal: (1) that the evidence was insufficient to prove the charges; (2) that the court erroneously received in evidence a plaster cast molding of a footprint; and (3) that the State’s submission instruction on burglary and stealing was erroneous in using “premanently” instead of “permanently”

The State presented evidence that on May 22,1978, at approximately 2:39 a. m., a report was received of a break-in at the OTASCO store in Malden, Missouri. A police officer, who approached the scene with his lights off, saw defendant, just outside the front door of the store, and Weldon Fossey, coming out of the door. Defendant was carrying a long object, later identified as a bumper jack, and Fossey was carrying small objects. Both men were “running or walking fast” when first seen. The officer tried to intercept them with his car, near the scene, but was unsuccessful. At that time they dropped the items they were carrying. Defendant was caught a little over 100 yards south of the OTASCO store and Fossey apprehended in a nearby field. Pistols from the OTASCO store and the bumper jack were found near where the officer originally tried to intercept them. The evidence showed that the front door of. the OTASCO store was broken open by a concrete block, and a gun case inside was broken by the bumper jack.

Weldon Fossey testified for defendant. He stated that defendant did not participate in the break-in and did not know it was going to occur. Fossey claims to have told defendant to meet him near the area at midnight or one o’clock. Fossey arrived with Albert Price. Fossey testified that he and Price were traveling in a Mercury; that defendant was never near it, and arrived in his own car. After they met, Albert and defendant left in defendant’s car to get some gas. They came back in about an hour. Albert then left alone in defendant’s car. Fossey had removed the concrete block and bumper jack from his car and had them with him. He told defendant to wait near the OTASCO store; that he “had something to do”. They then went to the front of the store and Fossey threw the block through the door, went inside, took the bumper jack and broke the glass gun case. Fossey then took the guns and went back out. Defendant was three or four feet from the corner of an alley and Fossey handed him the bumper jack. Defendant asked what was happening and Fossey told him it was “pretty obvious”. In “no time” the police cars started coming and defendant and Fossey started running. Fossey’s car was parked a short distance away, underneath some trees to help conceal it.

By way of rebuttal, the State offered a plaster cast, purportedly of defendant's right footprint, taken near the vehicle. Fossey was then recalled by defendant and testified that the shoes defendant was wearing when arrested had been worn by Albert Price when he and Price arrived in the Mercury. He said Price and defendant later changed shoes because defendant hurt his foot and it became swollen.

For his first point, defendant contends that the evidence of the State only shows he was at the scene. He says presence and flight are insufficient to sustain a conviction, citing State v. Castaldi, 386 S.W.2d 392, 395 (Mo.1965) and State v. Taylor, 542 S.W.2d 91, 95 (Mo.App.1976). However, in both those cases, the State’s evidence showed merely presence at the scene and no clear evidence of active involvement. State v. Taylor, supra, 542 S.W.2d at 95. Presence at the scene and flight, when coupled with other evidence of active participation, is sufficient to justify a finding of guilty. State v. Garrett, 566 S.W.2d 516, 518 (Mo.App.1978). State v. Taylor, supra, 542 S.W.2d at 94, states that a person’s presence in a residential area at 10:30 a. m. is “less suspicious” than presence outside a closed, burglarized store at 2:00 a. m. Presence may have substantially different meanings and raise different inferences where circumstances differ. State v. Ramsey, 368 S.W.2d 413, 417 (Mo.1963). In Ramsey, an. attempted burglary conviction was upheld on facts similar to those here.

There was evidence from which the jury could find that defendant was present just outside the store at 2:39 a. m. At the time first seen, he had in his hand an instrument used in the crime. He was running or in a fast walk from the scene. Gloves were found on him and footprints of the shoes he was wearing indicated he arrived with Fossey. Guns were found in Fossey’s car, taken from a burglary earlier that night in Campbell, Missouri. The jury did not have to believe the testimony of Weldon Fossey. Fossey couldn’t remember all his prior felony convictions. There was no other evidence to indicate that Fossey was with Albert Price or that Albert Price even existed. In testing whether the evidence is sufficient, the evidence and all favorable inferences must be considered in the light most favorable to the State and all evidence and inferences to the contrary disregarded. State v. Sherrill, 496 S.W.2d 321, 323 (Mo.App.1973). Defendant contends that the State’s case is wholly circumstantial and fails to “point so clearly to guilt as to exclude every reasonable hypothesis of innocence”, quoting from State v. Cain, 507 S.W.2d 437, 441 (Mo.App.1974). However, while the circumstances must be such as are inconsistent with defendant’s innocence, it is not necessary that they be absolutely conclusive of his guilt, and the evidence need not demonstrate an absolute impossibility of innocence. State v. Taylor, 445 S.W.2d 282, 284 (Mo.1969); State v. Major, 564 S.W.2d 79, 81 (Mo.App.1978).

The State offered evidence that defendant arrived with Fossey, was outside the premises at an unusual hour, was holding an instrumentality used in the crime, was leaving the scene in a fast manner and attempted to flee when the police arrived. Presence, companionship and conduct before and after an offense are circumstances from which participation in a crime may be inferred. State v. Nichelson, 546 S.W.2d 539, 543 (Mo.App.1977). The jury likely did not believe Weldon Fossey that he arrived with Albert Price and that Albert and defendant changed shoes. If Albert existed, his leaving before the burglary is questionable, when he and Fossey had already committed one burglary that night for guns and planned this one. It was for the jury to determine if this version was credible. They apparently did not believe it. The remainder of the evidence was inconsistent with any reasonable theory of innocence. The evidence was at least as sufficient here as in State v. Ramsey, supra. The evidence was sufficient to support the conviction. Point I is ruled against defendant.

Defendant next contends that the court erred in receiving into evidence a plaster cast molding of a footprint, because there was no evidence to connect the molding with the defendant and no expert testimony to compare the cast with the shoes taken from the defendant.

Bob McDonald, chief of police of Malden, Missouri, identified a pair of blue shoes which were taken off defendant shortly after his arrest. About 3:30 or 4:00 o’clock on the morning of the occurrence, he examined Fossey’s vehicle and the vicinity around it. The car had been parked underneath trees to conceal it, about 50 to 75 yards northeast of the rear of the OTASCO store. In the car were two guns, a rifle and a shotgun. McDonald found two sets of footprints in the car. He made a plaster cast of a right footprint just outside the door, which was the same as one of the footprints in the car. He testified that this was a cast molding of the right footprint made by one of the shoes defendant was wearing when arrested. This evidence was offered in rebuttal to show that defendant had arrived with Weldon Fossey. Fossey had earlier testified that defendant had not been in the area of the vehicle. After the plaster cast was admitted into evidence, Fossey again took the stand and explained that Albert and defendant exchanged shoes. The exhibit was sufficiently identified and connected with defendant and the offense charged. It was relevant to rebut evidence defendant offered that he was not around the vehicle, did not arrive with Fossey; and had no idea that Fossey was intending the crime. Defendant’s evidence showed that defendant had been wearing the shoes but claimed that Price had worn them earlier. The same footprint was found in Fossey’s vehicle. Trial courts are vested with broad discretion in determining the relevancy and admissibility of demonstrative evidence. State v. Johnson, 539 S.W.2d 493, 515 (Mo.App.1976), cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977). The exhibit could properly be considered by the jury in determining, defendant’s participation in the crime. Expert testimony was not necessary to show that the moldings were of defendant’s shoes. See State v. Drake, 298 S.W.2d 374, 376 (Mo.1957). The defendant’s shoes were in evidence, and the molding in evidence. If there was any doubt, they could be compared by the jury to determine if the molding was of the right shoe. The trial court did not abuse its discretion in admitting the exhibit. Point II is ruled against defendant.

Defendant’s third point is that Instruction No. 6 was in error because it used “premanently” instead of “permanently”, resulting in confusion to the jury. That instruction as written was:

“INSTRUCTION NO. 6
If you find and believe from the evidence beyond a reasonable doubt:
First, that the defendant is guilty of burglary in the second degree as submitted in other instructions herein, and
Second, that after committing that offense the defendant or another stole two Taurus 38 caliber blue steel revolvers, a Titan 22 caliber automatic, two RG 22 caliber pistols, a H & H 22 caliber revolver, á FIE 22 caliber pistol and a Titan Tiger 38 caliber blue steel revolver owned by OTASCO Incorporated, with the intent premanently to deprive OTASCO Incorporated of its use of such property and to convert it or any part thereof of the use of the defendant and another without the consent of the owner, and
Third, that the defendant acted either alone or knowingly and with common purpose together with another in the conduct referred to in the above paragraphs,
then you will find the defendant guilty of burglary in the second degree and stealing.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of burglary and stealing.”

When reading the instruction, the court said “permanently” where “pre-manently” was written. Apparently, “pre-manently” is not considered a word and has no definition. We see no way this could have prejudiced defendant. The trial court should be reversed only when the defendant has been prejudiced by an error in an instruction. State v. Pitchford, 556 S.W.2d 57, 59 (Mo.App.1977). In hearing and in reading the instruction, the jury would know that it was to find that the items were to be permanently taken. It would be unrealistic to assume that there was any intention to return the guns to OTASCO. Defendant’s witness Weldon Fossey certainly indicated that they were taken with intent to keep ' them permanently from OTASCO. Under this instruction the defendant first had to be found guilty of burglary under a prior instruction. He was found guilty of both. The question litigated was whether defendant participated in the crimes, not that no crimes occurred. Defendant could not have been prejudiced by this mistake. Defendant’s third point is ruled against him.

The judgment is affirmed.

All concur.


author: SNYDER, Presiding Judge.

text:
    COLLECTOR OF REVENUE OF the CITY OF ST. LOUIS, Missouri, Plaintiff-Respondent, v. PARCELS OF LAND ENCUMBERED WITH DELINQUENT TAX LIENS (Parcels # 26-008; 26-009; 26-010; 26-170; 27-113; 28-082; 28-083; 28-084; 28-085; 28-275; 29-157; 29-321; 29-322; 29-323; 29-324; 29-515) (Harvey F. Euge, Frank J. Rollins, Larry R. Anderson, John M. Leadbetter, Reich Invest. Corp.), Defendants-Appellants.
    Nos. 38738, 38854, 39005 and 39325.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 23, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 1979.
    Application to Transfer Denied Jan. 15, 1980.
    Harvey F. Euge, pro se.
    James E. Crowe, St. Louis, for plaintiff-respondent.
   SNYDER, Presiding Judge.

This appeal involves a foreclosure suit under the Municipal Land Reutilization Law (MLRL), § 92.700 et seq., RSMo 1978, brought by the Collector of Revenue of the City of St. Louis against certain parcels of City of St. Louis real estate encumbered by delinquent tax liens.

Appellants, owners of parcels in four land tax cases, filed answers which alleged defective notice and the unconstitutionality of the MLRL provisions delineating the notice requirements (§§ 92.755 and 92.760, RSMo 1978) in foreclosure sale proceedings. Thus, argued appellants, any proceedings brought pursuant to the statute would be a nullity as the court lacked jurisdiction, absent proper notice, to proceed. The trial court entered judgment in favor of the Collector of Revenue, ordering foreclosure and sale of the real estate in question. The owners of the parcels appeal. This court affirms.

Appellants’ joint motion to consolidate appeals from four land tax cases was granted. However, the one transcript which was filed provides this court with a record only as to parcels numbered 29-157, 29-321 through 29-324 and 29-515. This opinion speaks only to the appeal as it relates to these parcels.

The appeal is dismissed as to parcels 26-008 through 26-010, 26-170, 27-113, 28-082 through 28-085 and 28-275 because of appellants’ failure to provide a transcript as mandated by Rule 81.12(a).

Appellants argue the trial court erred in rendering judgment for the Collector of Revenue because the notice sent to them by mail and by publication was insufficient to comply with due process requirements in that it was vague and ambiguous and failed to inform them of the action taken against them so as to allow them to defend the property. They challenge the constitutionality of the notice provision of MLRL under Article I, Section 10 of the Missouri Constitution and Section 1 of the Fourteenth Amendment to the United States Constitution.

The notice of foreclosure given to appellants complied with § 92.755 (notice by publication) and § 92.760 (notice by mail), RSMo 1978. Both the mailed and the published notices stated clearly the reason and nature of the lien claimed upon the property and the proposed foreclosure of the tax lien on the property. There is no basis for appellants’ contention that the notice did not inform them of the action being taken against them.

As to the claim of unconstitutionality, appellants are cited to the case of Collector of Revenue of the City of St. Louis v. Parcels of Land Encumbered with Delinquent Tax Liens (Parcels 24-069 and 24-070), No. 60950 (Mo. banc, September 11, 1979) wherein the Missouri Supreme Court upheld the notice provisions of MLRL against the claim, similar to that of appellants, that these provisions violated the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Missouri Constitution. Further discussion of this point would be useless and of no precedential value. Accordingly, in compliance with Rule 84.16(b), the judgment from which this appeal is taken is affirmed.

WEIER, C. J., and SMITH, J., concur.

      . Appellant Harvey Euge did not and does not complain of an actual lack of notice. Nor does he complain that the court or the Collector failed strictly to adhere to the notice provisions embodied in § 92.755, RSMo 1978 (notice by publication) and § 92.760, RSMo 1978 (notice by mail).


author: SMITH, Judge.

text:
    STATE of Missouri ex rel. Charles McGRATH and Wilbert J. Marshall, Appellants, v. Theodore McNEAL, Edward J. Walsh, Jr., George T. Mehan, Salees Seddon, John H. Poelker (Comprising the Board of Police Commissioners, St. Louis, Missouri), Respondents.
    No. 40650.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 23, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      London, Greenberg & Fleming, C. John Pleban, St. Louis, for appellants.
    Lashly, Caruthers, Rava & Hamel, Kenneth C. Brostron, St. Louis, for respondents.
   SMITH, Judge.

Relators appeal from the judgment of the trial court quashing an alternative writ of mandamus and dismissing their petition. Relators are corporals in the St. Louis Police Department. Defendants were the Board of Police Commissioners of the City of St. Louis. The petition sought a writ of mandamus to compel the respondents to promote relators to the rank of sergeant with retroactive backpay “from the date and time of the first promotions to the rank of sergeant immediately following relators’ acquisition of rank of corporal.” Marshall was promoted to corporal in November 1950; McGrath in April 1954.

The basis of relators’ claim is Sec. 84.170, R.S.Mo. 1978 which provides in pertinent part as follows:

“84.170 ... 1. When any vacancy shall take place in any grade of officers, it shall be filled from the next lowest grade; provided, however, that probationary patrolmen shall serve at least six months as such before being promoted to the rank of patrolman; patrolmen shall serve at least three years as such before being promoted to the rank of sergeant; sergeants shall serve at least one year as such before being promoted to the rank of lieutenant; lieutenants shall serve at least one year as such before being promoted to the rank of captain; and in no case shall the chief or assistant chief be selected from men not members of the force or below the grade of captain. Patrolmen shall serve at least three years as such before promotion to the rank of detective; the inspector shall be taken from men in the rank not below the grade of lieutenant.”

In addition Police Manual Rule 8.201 provides as follows:

“When any vacancy shall take place in any grade of officers it shall be filled from the next lowest grade except as may be provided for in the selection of Chief, Assistant Chief, and Inspector. Promotions shall be made according to fitness and merit, as determined by the Board.”

It is relators’ contention that the provisions of the statute and the rule require that no person from a grade below that of corporal i. e.: patrolman, be promoted to sergeant as long as there are corporals who could be promoted to that rank. We will deal only with the statute because Sec. 84.-170(2) R.S.Mo. 1978 provides that the police board may make rules not inconsistent with the statutory provisions.

In determining the meaning of the statutory provision some history is required. The present provision was apparently first enacted in 1899 in virtually identical wording. Sec. 6216 R.S.Mo. 1899. At that time, and until 1945, there was no rank of corporal. Sec. 6213, 6214 R.S.Mo. 1899. In 1943 the General Assembly authorized reappointment of all police officers who had left or would thereafter leave the force to serve in the military forces during World War II. These reappointments were authorized even if it had the effect of increasing the size of the force beyond that authorized by statute. It was also provided that “All necessary reductions in rank shall be made to enable the boards to reappoint officers above the rank of patrolmen as aforesaid to the end that the number of such officers shall not exceed that provided for in this article.” Laws 1943, p. 705. In 1945, the General Assembly reduced the number of patrolmen (previously referred to as policemen in the sections dealing with rank complements) by 215. At the same time a new position of corporal was created with a limit of 204 positions, the same as the number of sergeants authorized. The pay of corporals was exactly midway between the pay of patrolmen and sergeants. The provision for hiring veterans was included in the same form in the new act. Laws 1945, p. 1257. In 1957, the General Assembly provided that no more corporals would be appointed but included a grandfather clause protecting those already serving in that rank. The complement of patrolmen was set at a given number (1500) but with authorization that a new patrolman could be appointed for each corporal “promoted, demoted, removed, resigned or otherwise separated” but the total number of patrolmen could not exceed 1704. The complement of corporals remained at 204, as did the complement of sergeants. Laws 1957, p. 251. The salary of corporals was the same as patrolmen with six years service in grade qualified for merit increase. Laws 1957, p. 253.

There is no legislative history available concerning the actions of the General Assembly in creating the rank of corporal. We think it reasonable, however, to conclude that it was intended to allow a graceful implementation of the veteran rehiring policy enacted in 1943. That policy called upon the board to demote non-veteran police officers to allow return of higher ranking veterans to their former rank. The timing of the establishment of the corporal rank and its subsequent abolition would support such a conclusion. The statute should be interpreted with this policy in mind and it is our function to ascertain and give effect to the legislative intent. State v. Kraus, 530 S.W.2d 684 (Mo.banc 1975) [1, 2]. Where an ambiguity exists it is proper to consider the history of the legislation and the ends to be accomplished in resolving the ambiguity. Person v. Scullin Steel Co., 523 S.W.2d 801 (Mo.banc 1975) [1]. Implied repeals of legislation are not favored. Maryland Casualty Co. v. General Electric Co., 418 S.W.2d 115 (Mo.banc 1967). Apparently conflicting provisions should, if possible, be construed to give effect to both. State ex rel. Safety Ambulance Service, Inc. v. Kinder, 557 S.W.2d 242 (Mo.banc 1977) [4, 5],

We will accept for purposes of our decision relators’ contention that the rank of corporal is the next lowest grade to the rank of sergeant, although respondents dispute this. The first clause of the statute would appear, therefore, to support relators’ position that all corporals must be promoted to sergeant before any patrolman is. But following that clause are a series of provisos — some in the nature of explanation and some in the nature of exceptions. Among those provisos is one that patrolmen must serve three years in rank before being promoted to sergeant. That provision has remained in the statute constantly since 1899. Unless it can be considered an exception to the first clause it obviously could have had no vitality from 1945 until 1957 when the established number of sergeants and corporals was the same, nor for some lengthy period thereafter until all sergeant vacancies had been filled by available corporals. At that point vitality would suddenly be breathed back into the provision. Such an implied repeal and implied reenactment should not be favored.

Furthermore, it is apparent that other exceptions to the “next lowest grade” provision exist within the statute without specific identification as exceptions. The ranks of chief (colonel) and assistant chief (lieutenant-colonel) may be filled by officers of the rank of captain or above. The inspector (lieutenant-colonel) may be selected from lieutenants and above. The statute obviously does not mandate absolute adherence to the “next lowest rank” limitation. While it is possible that the General Assembly may have simply overlooked the patrolman-with-three-years-experience provision when it created the rank of corporal, it is equally possible that it viewed the patrolman provision as an exception to the next lowest rank requirement as it obviously did with other positions.

The courts have recognized that the board of police commissioners has been given broad discretion by the general assembly in the government of the police, particularly where a question of personal fitness is involved. Milani v. Miller, 515 S.W.2d 412 (Mo.1974) [2—4]. This grant includes the power of employment and appointment, Sec. 84.170(2) R.S.Mo. 1978, and necessarily of promotion. To interpret the statute so as to force the board to appoint persons not found by the board to have the requisite qualifications for promotion would do violence to this broad discretionary grant. We find rather that the provisions of the statute authorize the board to promote either corporals, or patrolmen with three years experience in grade, to the position of sergeant. Such an interpretation is in keeping with the rules of statutory construction, the history of the statutes involved, and the general policies reflected in the grant of power to the board of police commissioners.

Judgment affirmed.

SNYDER, P. J., an<) PUDLOWSKI, J., concur.

      . Since the judgment of the trial court, Marshall has retired from the police force. All members of the police board named as defendants have been succeeded by new members.


author: CLEMENS, Senior Judge..

text:
    Joan H. OWENS, Respondent, v. Robert J. OWENS, Appellant.
    No. 41033.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 23, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      Kenneth A. Cohp, Michael L. Lyons, Legal Services of Eastern Mo., Inc., St. Charles, for appellant.
    Allan D. Jerger, Clayton, for respondent.
   CLEMENS, Senior Judge..

Garnishment raising the issue of defendant-debtor’s claimed exemption of the proceeds of his social security checks on deposit with garnishee banks.

Plaintiff-wife had an unsatisfied child support judgment against defendant. At her request the trial court issued execution against defendant and garnishment against his two bank accounts. Defendant moved to quash on the ground the funds “sought to be garnished were Social Security payments and thus were immune from all legal process.” The trial court denied defendant’s motions to quash and he has appealed.

Defendant relies on § 407, 42 U.S.C. It provides, under the title “Assignment” that the right of any person to any future social security payments is not assignable and “none of the moneys paid or payable . shall be subject to execution.” The words “future” and “paid” seem incongruous. Considering the act as a whole, we conclude that once social security funds have been paid to the recipient the funds are his personal property and no longer exempt from execution on the sole ground the government was the source of those payments.

We find support in Ponath, etc. v. Hedrick, 22 Wis.2d 382, 126 N.W.2d 28, where the court held Section 407, supra, applies to future receipts, not to received benefits. And, in Texas, etc. v. Corbitt, Tex.Civ.App., 321 S.W.2d 610, the court held the section did not purport to assert any control over social security payments after payment thereof to the beneficiary. So it is here. Judgment affirmed.

DOWD, P. J., and CRIST and REIN-HARD, JJ., concur.


author: REINHARD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. David ROPER, Appellant.
    No. 40741.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 23, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      Robert E. Ahrens, Ahrens & Bauer, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Michael P. Donegan, Asst. Attys. Gen., Jefferson City, Rolin T. Boulware, Pros. Atty., Shelby County, Shelbina, for respondent.
   REINHARD, Presiding Judge.

Defendant appeals from his conviction by the court in a jury-waived trial for the offense of possession of more than thirty-five grams of marijuana. The court sentenced him to serve a term of three years in the Department of Corrections.

In late May, 1977, Frank Chapin, a landowner in Shelby County near Clarence, Missouri, observed a little blue car parked on a country road. Upon investigation, Chapin discovered the defendant, a stranger to the area, coming out of a field carrying a coffee can and a shovel. Defendant said he had been digging fishing worms. Chapin took down defendant’s license number. In July of 1977, several patches of cultivated marijuana were discovered in the same area of Shelby County near Clarence. One of the patches of marijuana was found near the area where Chapin had seen defendant. After the discovery of the patches, the sheriff was notified and it was decided the area should be watched. On August 18, James Rufener observed a red auto parked on the road near a patch. The license number was the same as the one taken down by Chapin in May and was subsequently found to belong to defendant. Rufener called Chapin to tell him “they’re back after the marijuana.” By a C.B. radio Rufener notified the highway patrol. Rufener and Chapin pursued the car until it was stopped near Shel-bina by Sam Buckman, a deputy sheriff, who had received the report over his radio.

When Buckman stopped the vehicle, he saw on its roof a pair of muddy high-top jungle boots. As defendant handed Deputy Buckman his driver’s license,' Buckman detected a smell coming from the car which he thought to be marijuana. In his work as deputy sheriff, Buckman had been involved in several marijuana cases and consequently' had observed and possessed marijuana. While returning the driver’s license, Buck-man noticed two or three plastic garbage bags lying on the back seat and the floor. Defendant contended they contained dirty clothes and denied Buckman’s request to search. While the deputy returned to the courthouse to obtain a search warrant, the defendant drove his vehicle to the courthouse followed by two highway patrolmen. Buckman obtained the search warrant. He asked defendant if he wanted to go with him back to the car for the search. Defendant said: “You know what is in there. Go ahead, I don’t want to go.”

Buckman took County Clerk Don Rhodes and County Collector Leroy Adams to serve as witnesses as he searched the car. He took from the car three plastic bags of wet, plant-like material containing stems and leaves which Buckman believed to be marijuana, a pair of army issue rain pants, and a pair of wet and muddy yellow pruning shears. These items were taken to the county evidence room. Buckman counted the stalks finding the total to be twenty-four. The total weight including the bags was forty-seven pounds. Later that day, Buckman returned to the spot where Ruf-ener had observed defendant’s parked auto. He found fresh tire tracks and footprints in the mud which had the same tread as defendant’s boots. The tracks led to a patch where Buckman found twenty-four cut stalks of what he believed to be marijuana. The plants had been cut about an inch to an inch and one half from the ground.

The next day Buckman noticed that the plants from the bags had started to mold and mildew so he took them to his home, locked them in his machine shed, and hung them up to dry. Three days later he returned them to the evidence room.

About a month later three more bags from another marijuana case were placed in the evidence room. The marijuana plants in these bags had not been cut, rather, they had roots still attached.

Sometime in November, the evidence room was broken into and all the bags were taken. A dribble of roots, stems, and plants was found extending from the evidence room to the street. The material in the sheriff’s room was swept up, put in a bag, and marked. This bag was taken to Northeast Missouri State University where Dr. Matt Eichtor Director of Law Enforcement Laboratories, tested it using three different test procedures. Under each procedure he identified the material as marijuana. The bag and its contents were admitted into evidence as Exhibit 5 even though it was impossible to identify the material on the floor as being from the bags in which the defendant’s marijuana was placed.

During the process of removal of the bags from defendant’s automobile, County Collector Adams took two leaves of the plant material and placed them in a tray in his office. This material remained there until a week before the trial when it was placed in a bag and taken to Dr. Eichtor for examination. Adams, his two deputies, and the janitor had access to the office. Adams knew of no one else who had access. Dr. Eichtor testified that he ran three tests on these two leaves and that each showed positive results for marijuana. This material was admitted into evidence as Exhibit 4.

Sheriff Gene Dodd had considerable knowledge of marijuana and believed the patches he had seen in the field contained marijuana. He had seen the material in both the Roper and the Ratcliff bags, and testified that each contained marijuana.

On appeal defendant contends the court erred in admitting into evidence State’s Exhibits 4 and 5 because the State failed to prove proper chains of custody. Defendant claims that without these two wrongfully admitted exhibits the State failed to make a submissible case.

The reasonable establishment of a chain of custody and the relevancy of an exhibit are matters for the trial court to decide. The State need not show who possessed the evidence at all times. The evidence is sufficient if it shows a reasonable assurance that it was the same and in the same condition. State v. Turner, 543 S.W.2d 270, 272-73 (Mo.App.1976). We believe the State satisfied the proof requirements of a proper chain of custody as to Exhibit 4, which was in the custody of the collector. We know of no requirement that an exhibit be in the sole custody of a police officer. Any weakness in the State’s case as to this exhibit goes to the weight to be given this exhibit. Unlike the objection to Exhibit 4, we conclude defendant’s objection to the admission of Exhibit 5 has merit. The evidence was not sufficient to show that the material found on the floor of the Sheriff’s office was that taken from the defendant. Therefore, the court erred in the admission of the exhibit.

However, even excluding Exhibit 5 and the testimony of Dr. Eichtor relating thereto, we believe the State made a submissible case against the defendant on the charge of possession of more than thirty-five grams of marijuana. The State was required to prove: 1) that defendant had possession of marijuana, 2) that the marijuana weighed in excess of thirty-five grams, and 3) that defendant was aware of the character of the drug and intentionally had it in his possession.

The crucial issue in this case relates to the proof that the plants found in defendant’s car were marijuana. Dr. Eichtor’s expert testimony that in his opinion Exhibit 4 was marijuana supplies proof that defendant possessed marijuana. Furthermore, although we find no Missouri cases so holding, we believe that officers who' have had considerable experience in investigating marijuana cases can testify that in their opinion a certain substance is marijuana. Shch testimony is sufficient, in the absence of a chemical analysis by an expert, to make a submissible case on this issue. The Ohio Supreme Court reached this result in State v. Maupin, 42 Ohio St.2d 473, 330 N.E.2d 708 (1975). In Maupin, the court quoted approvingly from 23 C.J.S. Criminal Law § 864:

Marijuana, not being an extract or preparation difficult or impossible to characterize without chemical analysis, but consisting of the dried leaves, stems, and seeds of a plant which anyone reasonably familiar therewith should be able to identify by appearance, it is not error to permit officers who have had experience in searching for and obtaining marijuana to testify that a certain substance is marijuana; .

330 N.E.2d at 713. Accord, Cory v. State, 543 P.2d 565 (Okl.Cr.1975); Miller v. State, 168 Tex.Cr.App. 570, 330 S.W.2d 466 (1959).

Both Sheriff Dodd and Deputy Buckman testified as to their considerable experience with marijuana cases and their knowledge of marijuana’s appearance and smell. Dodd testified that the contents of the bags found in defendant’s car were marijuana. Deputy Sheriff Buckman testified that the contents appeared to be marijuana. Defendant made no objection at trial as to their qualifications or opinions, nor does he here challenge their qualifications or opinions. We find substantial evidence in the record that the bags in defendant’s car contained marijuana.

Defendant does not challenge the proof of the other elements of the offense. The evidence was sufficient for the jury to infer that the defendant was aware of the character of the drug and intentionally and knowingly had in his possession. Likewise, Deputy Buckman’s testimony that when he weighed the plants and bags they weighed forty-seven pounds was sufficient to prove that the defendant possessed marijuana in excess of thirty-five grams.

Under this point, without citation or authority, the defendant states: “that the state failed to prove the charge alleged against defendant because of the state’s total failure to produce at any time, the alleged evidence seized.” The corpus delicti can be proven by circumstantial evidence. Only the best proof that is presently obtainable need be shown in order to establish the corpus delicti. State v. Brooks, 551 S.W.2d 634, 646 n. 18 (Mo.App.1977). See People v. Candalaria, 121 Cal.App.2d 686, 264 P.2d 71 (1953) (wherein the corpus delicti of the offense of sale of heroin to a minor was proven by circumstantial evidence; the heroin was not available .at trial). Clearly, the State here made a submissible case against defendant.

We must now consider the effect of the erroneous admission of exhibit 5. This being a court-tried case, we conclude that the improper admission was harmless. Judge McMillian, speaking for our court in State v. Whaley, 512 S.W.2d 431 (Mo.App.1974) said:

[w]e hold that the court improperly permitted Deputy Irvin Ferguson to give expert opinion testimony as to the uniqueness of the diamond wedding rings. But, in our view, the error was harmless. First, because this was a court tried case and the same strictness as to the admission of evidence is not applied as in cases tried before a jury, United States Fidelity & Guaranty Co. v. Goodson, 227 Mo.App. 456, 54 S.W.2d 754 (1933) and Johnson v. Johnson, 240 S.W.2d 184 (Mo.App.1951). Since the rules of exclusion in law of evidence as applied in a court of law are largely as a result of the jury system, the purpose of which is to keep from the jury all irrelevant and collateral matters which might tend to confuse them or mislead them from a consideration of the real question involved, when an action is to the court sitting without a jury, the rules of exclusion are less strictly enforced, Laumeier v. Gehner, 110 Mo. 122, 19 S.W. 82 (1892) and Nevil v. Wahl, 228 Mo.App. 49, 65 S.W.2d 123 (1933), the assumption being that the court will not be confused or misled by what is irrelevant and inclusive.

Id. at 435.

Judgment affirmed.

WEIER, C. J., and GUNN, J., concur.


author: DIXON, Presiding Judge.

text:
    The FIRST NATIONAL BANK OF COLORADO SPRINGS, a National Banking Association, Plaintiff-Appellant, v. MARK IV CO., a Co-Partnership consisting of Ewell D. Harris and Marion Rupard, Jr.; South Street Management Company, a Colorado Corporation; Ewell D. Harris, Individually; Marion Rupard, Jr., Individually; Marjorie P. Rupard, Individually; and the Public Trustee of Douglas County, State of Colorado, Defendants-Respondents. The FIRST NATIONAL BANK OF COLORADO SPRINGS, a National Banking Association, Plaintiff-Appellant, v. Marion RUPARD, Jr., and Marjorie P. Rupard, Defendants-Respondents.
    Nos. KCD29385, KCD29949.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 3, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      George E. Feldmiller, W. Perry Brandt, Stinson, Mag, Thomson, McEvers & Fizzell, Michael E. Waldeck, Stephen S. Brown, Niewald, Risjord & Waldeck, Kansas City, for plaintiff-appellant.
    Kent Snapp, Richard L. Martin, Johnson, Lucas, Bush & Snapp, Kansas City, for Ru-pard.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   DIXON, Presiding Judge.

The complexities engendered by the filing of four separate lawsuits, each involving an attempt by plaintiff, The First National Bank of Colorado Springs, to register a foreign judgment obtained in the State of Colorado against the defendants Rupard, almost defy an orderly statement of the proceedings and issues in this case.

These two appeals were consolidated in this court. KCD29949 involved an appeal by plaintiff from a denial of relief in a declaratory judgment action in the Circuit Court of Platte County relating to a prior suit which is on appeal. KCD29385 is an appeal from the judgment of the Circuit Court of Jackson County in a suit attempting to register a. foreign judgment. Two other circuit court proceedings are peripherally involved: a suit in the Circuit Court of Jackson County, now voluntarily dismissed without prejudice, and a pending suit in the Circuit Court of Platte County, both of which latter mentioned suits are also attempts to register the same foreign judgment.

The issues involved may be summarily stated as the question of the validity of the dismissal of the Platte County suit for declaratory judgment and the right of the plaintiff to a nunc pro tunc order in the Circuit Court of Jackson County in the first suit filed.

Because of the complex proceedings and difficulty in following what has occurred by reference to circuit court numbers and designations of these cases in this court by two separate numbers, a simplified reference to each of the four separate litigations will be employed. The suits were filed in this order:

Plaintiff first filed a suit to register a foreign judgment in the Circuit Court of Jackson County, Missouri. This will be referred to as the “first Jackson County suit.” Subsequently, and after a disputed disposition of that suit, a second suit to register the foreign judgment was filed in Jackson County. That suit has been disposed of by a voluntary dismissal without prejudice and is only incidentally involved in this case. This will be referred to as the second Jackson County suit. The third suit was a suit filed in Platte County, Missouri, for the registration of a foreign judgment. That suit is still pending in Platte County and will be referred to as the “first Platte County suit.” The fourth suit was filed in the Platte County Circuit Court by the same plaintiff, and it sounded in declaratory judgment to test a portion of the issues presented by the preceding litigation. That suit resulted in the trial court sustaining the defendants’ motion for summary judgment.

With that summary statement of the various suits, the proceedings in each of them will require statement in detail before any resolution of the issues presented may be made.

The initial action,' the first Jackson County case, was commenced on April 26, 1976 by the filing of a Petition for Registration of a foreign judgment. An order was entered registering the Colorado judgment against the defendants in Jackson County. On June 16, the defendants filed an answer attacking the registration upon the grounds that pleadings were defective and alleging a lack of jurisdiction in the Colorado court. On September 10 of 1976, the plaintiff filed a pleading which has given rise to the controversy in this case. That pleading was designated as follows: “VOLUNTARY DISMISSAL WITHOUT PREJUDICE.” However, in the body of the pleading, there appears the following language: “Comes now plaintiff by and through its attorneys of record and voluntarily dismisses the above styled cause of action with prejudice at plaintiff’s costs.” (Emphasis supplied). On September 17,1976, Judge Randall, who was then possessed of the cause, entered an order dismissing the action and setting aside the registration of foreign judgment. On September 10 and prior to the entry of this order of September 17, 1976, the plaintiff (apparently proceeding on the assumption that it had requested a voluntary dismissal without prejudice) commenced its second Jackson County action to register the judgment. That second Jackson County case was before Judge Meyers, and he, on the date of filing, entered an order registering the foreign judgment which the defendants moved to set aside on October 13,1976. On October 28, 1976, Judge Meyers dismissed the plaintiff’s second Jackson County action without prejudice and, on November 9, 1976, set aside the registration of foreign judgment in the second Jackson County case. However, on November 24, 1976, the court being advised that Rule 74.79(j) would require a finding that the setting aside of the registration of foreign judgment might be determined to be a final judgment on the merits he, therefore, set aside his ex parte November 9th order and entered another order. He made it clear that he was terminating the second Jackson County case on the ground of a lack of venue but that his order was not to be construed as a final judgment in favor of the defendants so as to bar the plaintiff from attempting to register the Colorado judgment in a court with proper venue.

On that same day, November 9, 1976, the plaintiff filed a petition for registration of a foreign judgment in Platte County, Missouri, in what will be referred to as the first Platte County case. Sometime later in November, plaintiff became aware of the September 17th order by Judge Randall in the first Jackson County case. Plaintiff filed on December 3, 1976, a motion to set aside the September 17 order of Judge Randall in the first Jackson County case. On December 20, 1976, Judge Randall heard the motion to set aside the September 17 order and sustained the motion to set aside the September 17, 1976 order on the sole ground that the plaintiff had not been notified of the filing of the order and that plaintiff was entitled to be heard before an order which disposed of the litigation was entered. ■ At that point, it must be noted that the first Jackson County case was then still pending before Judge Randall. The plaintiff’s ambiguous pleading of dismissal was still filed and had not been responded to by any order of the court. It is also clear that all of the parties were by then aware of the difficulty engendered by the ambiguous pleading which contained the apparent contradiction with respect to the nature of the dismissal which the plaintiff sought. The plaintiff then filed the motion for an order nunc pro tunc correcting the record in Judge Randall’s court asking that the record be corrected to reflect “that the voluntary dismissal filed September 10, 1976 was without prejudice . . . .”

Thereafter and on January 19, 1977, the defendants filed a motion to set aside the registration .of foreign judgment in the first Jackson County case. On January 27,1977, Judge Randall denied the plaintiff’s motion for an order nunc pro tunc and on the 15th day of February, 1977, Judge Moore, to whom the case had been transferred, entered an order in the first Jackson County case setting aside the registration of foreign judgment. A notice of appeal was filed in the first Jackson County action on March 4, 1977. The proceedings, however, were not halted in the first Jackson County case for, on March 15, 1977, Judge Moore set aside his February 15 order which set aside the registration of foreign judgment. At that point, the first Jackson County case was still within the 30-day period within which the trial court retained jurisdiction. This action by Judge Moore was subsequent to the dismissal of the second Jackson County suit by Judge Meyers for a lack of venue. The crucial nature of the Judge Moore order of March 15, 1977, requires its inclusion in full:

“This Court’s Order of February 15, 1977, is hereby set aside and in substitution thereof, the Court FINDS as follows:
1. An Order was entered on April 29, 1976, registering a foreign judgment in the captioned matter;
2. Plaintiff filed a voluntary dismissal of this action on September 10, 1976;
3. There has been no hearing on the merits of the allegations contained in plaintiff’s Petition for Registration of Foreign Judgment filed April 26, 1976;
4. There has been no hearing on the merits of the allegations contained in the answer filed by defendants Marjorie P. Rupard and Marion Rupard, Jr. on June 16, 1976;
5. On May 6, 1976, plaintiff requested garnishment against Marjorie P. Rupard and Marion Rupard, Jr.;
6. A Motion to Quash the aforesaid garnishment was filed on August 5,1976;
It is, therefore, further
ORDERED that the aforesaid Motion to Quash Garnishment, is sustained and that the aforesaid registration of foreign judgment dated April 29, 1976, be and is hereby held for naught.
Dated this 15th day of March, 1977.”

Returning now to the proceedings in Platte County and recapping the posture of the litigation at this point, it is apparent that the records of the Circuit Court of Jackson County at that point reflected a termination of both the first and the second Jackson County cases with a notice of appeal pending in the first Jackson County case. There was, likewise, pending the first Platte County case in which answer had been filed asserting the defense of dismissal with prejudice of the first Jackson County case. This had been filed January 21, 1977.

The plaintiff then, on April 12, 1977, filed the fourth and final case in Platte County which was an action for declaratory judgment to declare that plaintiff’s pleading in the first Jackson County case be construed as a request for dismissal without prejudice. On the 1st day of December, 1977, the Circuit Court of Platte County proceeded to a hearing in the declaratory judgment action on the defendants’ motion to dismiss. The defendants’ motion to dismiss alleged that the pendency of the first Platte County litigation involving the same question provided an adequate remedy to the plaintiff. They further asserted that declaratory relief should be refused because it would not terminate the litigation between the parties as other defenses existed in the first Platte County suit which would require additional litigation beyond the declaratory judgment action. The plaintiff’s Platte County case in declaratory judgment was dismissed on December 1, 1977, the court making no statement as to the basis for sustaining the motion to dismiss; and the plaintiff filed its notice of appeal on December 6, 1977.

The first issue to be decided is the claim of the First National Bank of Colorado Springs that the trial court erred in denying it relief under its motion for a nunc pro tunc order. Fundamental to that issue is the question of whether or not the denial of nunc pro tunc relief constitutes error material to the merits of the case. Rule 84.13(b). Thus, implicit in the issue is the question of the present posture of the first Jackson County case in terms of its effect as res judicata of the plaintiff’s cause of action to register its foreign judgment which is now the subject of a pending action. If the record in the first Jackson County case does not support a claim that the petition of the First National Bank of Colorado Springs has been dismissed with prejudice, then the denial of nunc pro tunc relief is a moot question and cannot constitute material error. The basic and dispositive issue in resolving the underlying question of the effect of the proceedings in the first Jackson County case is the effect to be given to the proceedings related above which followed the filing of the First National Bank’s ambiguous pleading. The initial analysis must be of the provisions of Rule 67.01. Rule 67.01 was amended, effective September 1, 1973, to obviate any need for a judicial order in connection with a dismissal filed before evidence was taken in the case.

At the time of the amendment of Rule 67.01, Rule 67.03 was likewise amended. The amendments to Rule 67.03 in 1973 were a change in the second sentence of Rule 67.03 to conform to the holding in Denny v. Mathieu, 452 S.W.2d 114 (Mo. banc 1970), and the third sentence was amended by adding language to include a failure to substitute with respect to a decedent, a matter not material here. What is material in a consideration of this case is the last sentence of 67.03, which is as follows:

“Any voluntary dismissal other than one which the party is entitled to take without prejudice, and any involuntary dismissal other than one for lack of jurisdiction, for prematurity of action, for improper venue or for failure to substitute a party for a decedent shall be with prejudice unless the court in its order for dismissal shall otherwise specify.”

If the sentence is read without the parenthetical expression referring to dismissals without prejudice under 67.01 and without the exceptions, it would read as follows: “Any voluntary dismissal . . . , and any involuntary dismissal . . . shall be with prejudice unless the court in its order for dismissal shall otherwise specify.” So read, the Rule would require an order of dismissal in all voluntary and involuntary dismissals not taken under the first sentence of Rule 67.01, whether with or without prejudice.

Before the amendment of Rule 67.01, there was a confusion in the case law as to whether an order of court was required on a voluntary dismissal without prejudice, and the clear intent of Rule 67.01 was to eliminate the need for a court order in the narrow area of voluntary dismissals without prejudice before evidence is heard. If all voluntary dismissals were to be without order, that could have been easily specified. What must be concluded from the language of the rules is that only when a plaintiff exercises his right to dismiss without prejudice prior to the introduction of evidence is no order required, but that all other dismissals require an order which is to be with prejudice unless for one of the excepted reasons or if specified in the court order as being without prejudice.

The nature of the underlying cause of action and the procedures established by the statute for the registration of a foreign judgment may also deny application of Rule 67.01. Missouri, by § 511.760, has adopted the 1948 version of the Uniform Registration of Foreign Judgments Act prepared by the commissioners on uniform laws. 13 U.L.A. Civil Proc. and Rem. Laws 181 et seq. The Registration of Foreign Judgments Act was designed to substitute a procedure set forth in the statute for the common law right to sue in debt on the judgment in the instance of a plaintiff seeking enforcement of a judgment rendered by a sister state. The fundamental premise of the uniform act was to eliminate proof of the debt by requiring the plaintiff to produce evidence supporting the rendition of his judgment and left open to the judgment debtor only those defenses recognized by the law of this state with respect to any judgment. Examination of § 511.760 reveals that the procedure provided for is the filing by the plaintiff of a petition to register his judgment which requires only that the judgment be authenticated to show its validity in the state where it was obtained and the record of any proceedings subsequent to the judgment. Chapter 511 then provides for the registration of the judgment which automatically sets in motion the right of plaintiff registering the judgment to seek immediate process by way of execution. Section 511.760(6). This court has held that the process authorized by that section is not in aid of service but is in fact in aid of execution on the judgment. Beneficial Finance Company of Houston v. Yellow Transit Freight Lines, 450 S.W.2d 222, 225 (Mo.App.1969). Once the plaintiff has procured an order of registration and either personally served the defendant or undertaken execution against property of the defendant, then absent a plea of an affirmative defense supported by proof, the plaintiff’s foreign judgment becomes a final judgment in this state subject to execution and enforcement as any other judgment. It is thus apparent that, absent an affirmative defense tendered to the foreign judgment, no further evidence is required before the registration of the judgment becomes final. In effect, the statute provides only for evidence by the plaintiff by way of authentication of the judgment insofar as the plaintiff’s proof in the action is concerned. Any other evidence taken would be in connection with the affirmative defenses tendered by the defendant. Thus, under the statute concerning the registration of foreign judgments, when the petition is filed and the authenticated judgment presented to the court and the order of registration entered, the plaintiff’s proof is complete. This fundamental difference in the cause of action makes the provisions of Rule 67.01 concerning the voluntary dismissals before the taking of evidence inap-posite. The order of registration under the act, although not lending itself readily to characterization, bespeaks an interlocutory or preliminary judgment and not a preliminary motion or proceeding prior to the trial of the issue. Absent affirmative pleading of a defense, there is no trial in the registration of a foreign judgment, and the failure of the defendant to assert affirmative defenses within the prescribed period causes the order of registration to become final in the proceedings. Section 511.760(7).

In the instant case, the anomalous situation was presented that if the plaintiff’s voluntary dismissal terminated the trial court’s power to make any further orders, the garnishment effected by the plaintiff on August 5 would have remained outstanding and subjected the garnishee to potential liability and the necessity for determining the effect of the garnishment. So, too, the provisions of § 511.760 concerning the order of registration and its effect as a cloud on the title of any property of the defendant would constitute a continuing source of concern unless the order of registration itself were in some fashion shown to be without further effect.

The defendant in the instant case recognized those difficulties and sought the order of the court quashing the garnishment and terminating the order of registration. Once the sui generis nature of the proceeding to register a foreign judgment is recognized, the provisions of Rule 67.01 relating to voluntary dismissal before taking of evidence have no logical relevancy.

Applying this analysis of Rules 67.01 and 67.03 and the underlying action to the instant case, it must be concluded that this court must determine the nature of the order which the court.entered in the final stages of the first Jackson County case. The defendants stoutly assert that the pleading filed by the plaintiff bank constituted a dismissal with prejudice, but they do not in their brief present any authority for the proposition that such a pleading is not subject to the requirement of Rule 67.03 that the order of the court specify the nature of the dismissal.

The construction of Judge Moore’s order of March 15, 1977 must be undertaken to determine the status of the first Jackson County case. That construction is to be accomplished under certain settled principles relating to construction of judgments. A judgment is to be construed in the light of what a court should have done, Burgdorfer Electric Company v. Voyles Construction Co., 432 S.W.2d 387, 392 (Mo.App.1968), and in cases of doubt concerning the meaning of the judgment entered, the entire record may be examined and considered. Allen v. Gibbons, 425 S.W.2d 243 (Mo.App.1968); State ex rel. Anderson Motor Service Co. v. Public Service Commission, 234 Mo.App. 470, 134 S.W.2d 1069, 1079 (1939). A judgment is to have a reasonable intendment and is to be construed “ ‘ “in light of the situation of the court, what was before the court, and the accompanying circumstances (citing case).” ’ ” “[I]ts meaning should be determined in the light of the character and objective of the proceeding culminating in the judgment.” Jeans v. Jeans, 314 S.W.2d 922, 925 (Mo.App.1958).

Applying those principles of construction to the judgment entered by Judge Moore, a recital of the salient facts will aid in the construction to be afforded the final dispos-itive portion of Judge Moore’s order. Judge Moore was aware of the dispute between the parties and the status of the record with respect to the filing of pleadings by the defendants as indicated by the recitals in his order. His order further makes it plain that he was aware there had been no determination of the issues raised by the pleadings insofar as the plaintiff’s petition was concerned and, likewise, no hearing on the merits with respect to the allegations of the defendants’ answer as evidenced by his recitation of those record facts in his findings preceding the decretal portion of his judgment. Judge Moore was aware of the entire controversy surrounding the ambiguous pleading filed by the plaintiff seeking the dismissal of the action because that dispute is set forth in the proceedings relating to the nunc pro tunc motion. Under Rule 67.03, the recitals just mentioned, of the judge’s awareness that no hearing on the merits had occurred with respect to either the allegations of the petition nor the allegations of the answer, become particularly important in the light of Judge Moore’s action before signing the March 15th order when he changed the last three words in his own hand substituting “held for naught” for the typewritten words “set aside.” This unquestionably was done in the light of Rule 74.79(j) which provides that an order setting aside a registration of a foreign judgment constitutes a final judgment in favor of the judgment debtor. Thus, the facts known to Judge Moore and recited by him in his findings showed a situation where the plaintiff was entitled to a voluntary dismissal without prejudice. Judge Moore personally altered his own order from its original typed form to one which would reflect a judgment that was not final in the sense of being a determination upon the merits in favor of the defendant.

From what has been said, it must be held that Judge Moore’s order amounted to a construction of the ambiguous document filed by the plaintiff as being a request for a voluntary dismissal without prejudice. The order also shows a recognition by him that the registration of the foreign judgment accomplished by the filing of plaintiff’s petition, as well as the quashing of the garnishment issued upon that registration, was required in order to clear the court’s record of any implication that a proceeding was still pending in the Jackson County Circuit Court relating to such foreign judgment. In that respect, the case is similar to the case of State ex rel. Tucker v. Mattingly, 275 S.W.2d 34 (Mo.App.1955). In that case, the. court construed the judgment in the prior case upon the basis of a memorandum filed by the court and concluded that the prior judgment had not reached the merits of the case. There was not an adjudication on the merits in the prior case, and it was, therefore, not res judicata in the case under consideration. The court, therefore, reversed a motion to dismiss based upon a finding of res judicata. So considered, it must be held that Judge Moore’s order of March 15,1977, while concluding and terminating the proceedings in the first Jackson County suit, was not an adjudication upon the merits but was a termination of that suit without prejudice to the continuance of the plaintiff’s cause of action in a proper forum and with proper pleadings. From what has been said, it is apparent that the termination of the first Jackson County suit does not constitute a bar or impediment to the pending cause of action of the plaintiff in Platte County.

In Burgdorfer, supra, in dealing with the construction of an order overruling a motion to vacate an order dismissing a petition and, alternatively, requesting leave to file an- amended petition, the court construed the order as being a dismissal of the original petition but not a dismissal of its right of action, this holding being on the ground that what the court should have done is a proper factor in. construing the judgment the court actually entered. So here, in the light of all of the circumstances in this record and in the proper application of Rule 67.03, the court should have and did construe the ambiguous pleading of plaintiff bank finding as noted that the intent was to conclude the first Jackson County suit without prejudice.

The issues with respect to denial of plaintiff’s request for nunc pro tunc order need no further exploration, for the action of the trial court in denying a nunc pro tunc order has not resulted in any aggrievement of the plaintiff in the light of the construction .placed upon Judge Moore’s order of March 15, 1977. The judgment entered by Judge Moore amounted to an acceptance of the request for nunc pro tunc relief as a request for an amendment to the pleading filed.

The second appeal, KCD29949, involves the correctness of the trial court’s action sustaining a motion to dismiss the declaratory judgment action in Platte County. This dismissal was clearly and unequivocally correct on at least two grounds. First, there was another suit pending in Platte County involving exactly the same parties, exactly the same subject matter, and exactly the same' issues, to-wit: the determination of the effect of the pleading requesting a dismissal filed in the first Jackson County suit.

Additionally, it is apparent that even if the plaintiff had prevailed in its suit for declaratory judgment, the litigation between the parties would not have been concluded because there still remained issues pending in the first Platte County suit for the registration of the foreign judgment. Whether this latter principle is viewed as a special application of the rule of another suit pending or if the principle of declaratory judgment relief that declaratory judgment will not be afforded to try a case piecemeal, the result is the same and the trial court in Platte County properly dismissed the plaintiff’s suit for declaratory judgment.

In any event, the relief requested in the declaratory judgment action has been rendered moot since the opinion in this case has necessarily construed the order in the first Jackson County case.

It follows then that the judgment of the Circuit Court of Jackson County in No. 76-2098 is affirmed as herein construed. The judgment in the Circuit Court of Platte County, No. 77-231, is affirmed.

All concur.

      . This case is the subject of the appeal in KCD29385.

      . This case is the subject of the appeal in KCD29949.

      . All other orders concerning the matter had been rescinded.

      . The true copy filed in Platte County does not show James Moore’s signature but the Deputy Clerk’s facsimile of it. The court file, however, contains the original order signed by Judge Moore with the changes made in ink.