author: VANCE, Judge:

text:
    Tommy SPEARS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 25, 1977.
    Jack Emory Farley, Public Defender, Tom R. Lewis, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., James L. Dickinson, Asst. Atty. Gen., Frankfort, for appellee.
    Before MARTIN, C. J., and COOPER and VANCE, JJ.
   VANCE, Judge:

The issue for determination is whether the trial court erred by refusing to allow appellant to show that a principal prosecuting witness was under indictment in the same court in which appellant was convicted.

Appellant was convicted of trafficking in a controlled substance, Schedule I (KRS 218A.140(1)) and sentenced to twelve months imprisonment. The principal witness against appellant was an informer who volunteered his services as an “undercover agent” for the Commonwealth’s Attorney. He testified that he purchased a bag of marijuana from appellant. In the course of his testimony it was revealed that he had come to Kentucky from Coeur d’Alene, Idaho and resided in Somerset, Kentucky for six to eight months in 1976. It also appeared that he left Somerset owing money to some of its citizens. Appellant attempted to show that there was pending against him at the time of trial an indictment for theft of services but the trial court sustained the Commonwealth’s Attorney’s objection.

Appellant later offered evidence by the person who preferred the charges against Sandlin but it too was excluded. It was established that Sandlin had been convicted in Idaho of the felony of uttering a check not backed by sufficient funds.

The evidence concerning the pending indictment against Sandlin was competent to show possible bias in his testimony and to show the possibility that his testimony was influenced by the fact that the Commonwealth’s Attorney had the power to dismiss the indictment against him in exchange for favorable testimony. Appellant made it clear that he did not seek to show the indictment to impeach the witness but to show his possible bias.

In Chesapeake & Ohio Railroad Co. v. Pittman, 283 Ky. 63, 138 S.W.2d 962 (1940) it was held that a pending indictment against a witness in a civil suit offered by the Commonwealth’s Attorney could be shown as a circumstance tending to show that her testimony may have been influenced by a desire to seek the favor or leniency of the prosecuting officer.

In weighing the testimony the jury should be in possession of all facts calculated to exert influence on a witness. McGill v. Commonwealth, 216 Ky. 430, 287 S.W. 949 (1926); Coleman v. Commonwealth, 304 Ky. 115, 200 S.W.2d 151 (1947). In Clark v. Commonwealth, Ky., 386 S.W.2d 458, 461 (1965) a conviction was reversed for failure to admit evidence that a prosecuting witness had entered a plea of guilty to six charges in the same court and that fourteen other charges were dismissed the court stated:

Although Sharp specifically denied that he had been promised leniency in exchange for his testimony, the circumstances of the dismissal of the fourteen counts, coupled with Sharp’s appearance before the grand jury after dismissal and his appearance as the prime prosecuting witness after dismissal — . . . tend to support the inference that Sharp’s testimony was the result of a biased personal interest.

Appellee relies upon East v. Cmwlth., 249 Ky. 46, 60 S.W.2d 137 (1933). It is true it was held therein that it was not error to refuse evidence that a principal prosecuting witness was under indictment for the murder of appellant’s brother. It is clear, however, that the court rejected the evidence upon the ground that proof of an indictment for an unrelated offense was not proper impeachment, as indeed it is not except where the fact that an indictment is pending may tend to show that the testimony of the prosecuting witness was influenced by a desire to seek the favor or leniency of the prosecuting officer. No mention was made of the theory, later recognized in Pittman, Coleman and Clark that such proof is admissible to show bias of the witness. Perhaps that showing was unnecessary in East for the reason that the bias of the prosecuting witness was overwhelmingly proved by other evidence. In any event we think Chesapeake and Ohio Railroad Co. v. Pittman, supra, is controlling.

On a retrial, if the rule is requested, detective Girdler should not be permitted to remain in the courtroom while witnesses are testifying.

The judgment is reversed.

All concur.


source: Caselaw Access Project

author: WHITE, Judge. LESTER, Judge,

license: Public Domain

text:
    James Ralph HOWARD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 16, 1977.
    Jack Emory Farley, Public Defender, Larry H. Marshall, Asst. Public Defender, Com. of Kentucky, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Miles H. Franklin, Asst. Atty. Gen., Frankfort, for appellee.
    Before MARTIN, C. J., and WHITE and LESTER, JJ.
   WHITE, Judge.

Appellant was convicted of illegally transporting alcoholic beverages in local option territory, second offense. KRS 242.-230, KRS 242.990. His punishment was assessed at a fine of $40 and imprisonment for 60 days; he prosecutes this appeal.

On January 15,1976, Trooper H. L. Howard, while patrolling Kentucky Highway 221 in Harlan County, Kentucky, met the vehicle driven by appellant. The trooper recognized the appellant and the vehicle as being the same he had previously stopped for transporting alcoholic beverages. We quote a part of the evidence as follows:

18 And what did you do after you stopped his car?
A When I met Mr. Howard I recognized who it was. I turned and I got behind him and stopped him and checked his operator’s license and his vehicle was sitting low in the back. I had stopped him before in this same vehicle for transporting alcoholic beverages.
MR. JACK STEPHENSON: I’ll object, Your Honor.
THE COURT: Overruled. Is that the reason why you stopped him on this occasion?
A Yes, sir.
THE COURT: All right, Proceed. The objection is overruled.
A After I stopped him and checked his operator’s license, I asked him if I could look in his trunk and he said, “Yes.” He got out and opened his trunk for me and there was five cases of beer in the trunk, two cases of twelve ounce bottles of Miller beer and three cases of sixteen ounce cans of Pabst Blue Ribbon beer.

No motion was made at any time to suppress the evidence. A stipulation was entered that appellant had previously been convicted of transporting alcoholic beverages in local option territory, from which no appeal had been taken and which judgment had been satisfied. The prior conviction was more than 14 months before the arrest of the present charge. The appellant’s testimony, together with that of his other witnesses, was to the effect that appellant had pooled money with others to buy the beer for a party for all of them.

Appellant, at the conclusion of all the testimony, moved the court for a directed verdict in his favor. After the verdict of the jury was returned, appellant also moved the court for judgment notwithstanding the verdict. Both motions were overruled.

Appellant contends that his vehicle was illegally searched because there was no probable cause for the stopping. From a review of the meager testimony in this case it appears that there is merit in this argument. There are a number of late holdings that discuss the subject of search and seizure without a warrant. It is quite true that before a warrantless search will be upheld, it must fall within one of four carefully drawn exceptions: a search incident to a lawful arrest; a plain view search; a consent search; or a probable cause search. Where a warrantless search and seizure cannot be justified under one of these theories, both the testimony and the items seized must be excluded from evidence. Shanks v. Commonwealth, Ky., 504 S.W.2d 709 (1974); Johns v. Commonwealth, Ky., 394 S.W.2d 890 (1965); Pennington v. Commonwealth, Ky., 429 S.W.2d 364 (1967).

In Pennington v. Commonwealth, supra, the court therein said:

The law of this jurisdiction as it relates to the search of an automobile upon arrest for a traffic violation was reviewed by this court in Commonwealth of Kentucky v. Robey, Ky., 337 S.W.2d 34. There we held under section one of the Kentucky Constitution a police officer may not without proper justification stop a motorist and that if he does stop a motorist without a bonaflde cause any evidence obtained as a result of the stopping should be considered as having been illegally obtained and inadmissible (emphasis added).

It was further held in the case of Commonwealth v. Hagan, Ky., 464 S.W.2d 261 (1971):

We know of no reason why a peace officer should not be permitted to stop any vehicle on the highway at any time for any reasonable purpose [emphasis added].
If, at that time, the officer believes that a misdemeanor has been committed in his presence on the basis of what he sees and hears, ... he may place him or them under arrest and may forthwith proceed to search the automobile incident to the arrest. Here we would except traffic violations. We have long adhered to the rule that an arrest for a minor traffic violation does not justify a complete search. See Johnson v. Commonwealth, Ky., 443 S.W.2d 20.

From a review of the testimony of Trooper Howard it is quite evident that he had neither a “bonafide cause” nor “any reasonable purpose” when he overtook and stopped the appellant. At best he had but a mere suspicion in that he “had stopped him before in this same vehicle for transporting alcoholic beverages.” Neither suspicion nor bad reputation, standing alone, will warrant a conviction. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Adkins v. Commonwealth, 313 Ky. 110, 230 S.W.2d 453 (1950); DeAttley v. Commonwealth, 310 Ky. 112, 220 S.W.2d 106 (1949).

We conclude that the arresting officer had no probable cause for stopping the appellant and, even if he had stopped him solely to check his driver’s license, would not have been privileged to search the vehicle for a minor traffic violation. Commonwealth v. Hagan, supra.

It has been held that a large quantity of alcoholic beverages in the possession of a defendant may give rise to an inference that the alcoholic beverages are possessed for the purpose of sale or some other illicit purpose. Johnson v. Commonwealth, Ky., 509 S.W.2d 274 (1974); Smith v. Commonwealth, Ky., 467 S.W.2d 606 (1971). We are not willing to concede, in the absence of proof of sale or intention to sell, that the mere possession of five cases of beer can be construed as a large quantity so as to raise such an inference here.

There is no evidence in this case that the appellant had made a sale or intended to sell the alcoholic beverages confiscated. In fact, he testified that “[a]fter I got caught the first time I never fooled with it no more.” This was not contradicted in any way.

We do not rule on the appellant’s other contentions since the judgment, for the above reasons, is reversed.

MARTIN, C. J., concurs.

LESTER, J., concurs by separate opinion.

LESTER, Judge,

concurring.

I concur in the foregoing opinion and reasoning but several points are deserving of comment.

This case involves the so-called “local option laws” and in spite of the moral wrongs they were designed to correct, no set of statutes have generated more criminal offenses than these, to say nothing of the revenues lost to the Commonwealth. Compare with the national fiasco between the adoption and repeal of the Eighteenth Amendment to the United States Constitution. I do not believe this was the intention of the legislature. It would be difficult, if not impossible, to calculate the cost to the state in the areas of law enforcement and judicial expense involved in their administration.

If the appellant’s conviction were allowed to stand, a situation not raised in the briefs should be considered in that if one has ever been convicted of a violation of the chapter under our perusal, then he would be forever barred from transporting in his own home “dry county” so much as six cans of beer to use in his domicile for an occasional guest who might visit his house, for it has to be recalled that the beverage cannot be in his possession for the purposes of giving it away. I do not conceive this to be the intention of the legislature or that the framers of this archaic law.


author: DONNELLY, Judge. SEILER, Judge,

text:
    STATE of Missouri, Respondent, v. Ronald TREADWAY, Appellant.
    No. 60140.
    Supreme Court of Missouri, En Banc.
    Nov. 10, 1977.
    Respondent’s Motion for Rehearing Denied Dec. 19, 1977.

      Terry Burnet, Charles H. Mostov, St. Louis, for appellant.
    J. Mike Davis, Asst. Atty. Gen., Jefferson City, for respondent.
   DONNELLY, Judge.

Appellant, Ronald Treadway, was convicted in one count of robbery in the first degree (§ 560.120, RSMo 1969) and in one count of armed criminal action (§ 559.225, RSMo Supp.1976), in the Circuit Court of the City of St. Louis. Punishment on the first count was assessed at fifteen years. Punishment on the second count was assessed at three years to commence at the expiration of the sentence imposed on the first count. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court.

Evidence at trial showed that on September 25, 1976, Rotha Grimes, her daughter and granddaughter, and Sandra Bequette and her two children drove to Rinderer’s Drug Store at 3501 Carter. Mrs. Grimes, the driver of the car, parked at the curb beside the drug store. Mrs. Grimes’ daughter, Jerri Hanks, left the car and entered the drug store, leaving her purse on the floorboard of the front passenger’s side where Mrs. Bequette was sitting. Two males then approached the vehicle. One of these men was identified by Mrs. Grimes as the appellant, Ronald Treadway. Appellant opened the car door on the passenger’s side of the car while his companion stuck a gun inside the car, pointing it at Mrs. Grimes and Mrs. Bequette. Appellant leaned in and demanded the two women give him their purses. Mrs. Grimes told appellant to get out, then slapped his hand as he reached to remove the purses from the front seat between the two women. Appellant then stated, “Give me your purses or we’ll kill you.” Mrs. Grimes responded by slapping his hand again and blowing the horn. Appellant then hit Mrs. Bequette’s leg with his fist and knocked her foot off of Mrs. Hanks’ purse, grabbed the purse, and the two men ran from the car.

Mrs. Grimes called the police immediately after the incident and described appellant’s facial characteristics and clothing to the responding officer. She was unable to give a height and weight description other than by comparing appellant’s build to that of a passerby, which the officer noted. Mrs. Grimes subsequently identified appellant’s photograph from photographs shown to her by the police. She also identified appellant from a lineup conducted at a police station. Mrs. Bequette was unable to give a description to the police or to identify anyone as her assailant.

Based on this evidence, the jury returned verdicts of guilty on the charges of robbery in the first degree and armed criminal action. Appellant was sentenced to terms of fifteen years on the robbery count and three years on the armed criminal action count, said terms to run consecutively. The trial court indicated it felt it did not have discretion to sentence appellant to concurrent terms because of the provisions of § 559.225, RSMo Supp.1976, the armed criminal action statute.

Appellant first alleges that the trial court erred in refusing to strike for cause juror Robert Duke because Mr. Duke indicated at one point in voir dire examination that he felt the fact that the State had charged the appellant with a crime should be considered and he believed the State had the basis of a case. During Mr. Duke’s examination the following took place:

“MR. BURNET: . . . Now, as Mr. Carmody indicated to you, the fact that Mr. Treadway was charged is no evidence whatsoever that he’s guilty of this crime, alleged crime. Now, Mr. Duke, do you understand that principle?
“MR. DUKE: No, I don’t, sir.
“MR. BURNET: The principle is that the fact the man has been charged is no evidence.
“MR. DUKE: I understand that.
“MR. BURNET: You understand?
“MR. DUKE: You’re innocent till you’re proven guilty, I understand that.
“MR. BURNET: Would you consider the fact that he has been charged with this robbery any evidence that he’s committed it?
“MR. DUKE: I think the evidence should be considered.
“MR. BURNET: You consider the fact that the State has charged this man, that the State has charged this man as to the guilt?
“MR. DUKE: Yes. They have the basis of a case.
“MR. BURNET: All right. May we approach the bench?
‡ ‡ ⅝ ⅜ ⅝
“THE COURT: I didn’t hear his answer.
“MR. BURNET: Would you repeat your answer, please?
“MR. DUKE: Sir, I think if the State did not have a case, they probably wouldn’t have filed it in Court.
“THE COURT: Well, Mr. Duke, I think what both lawyers are trying to tell you is that before the defendant can be found guilty, the guilt must be proven beyond a reasonable doubt.
“MR. BURNET: I’d move to strike.
“MR. CARMODY: Judge, I’d like to have the opportunity of examining him before he’s stricken for cause.
“THE COURT: And, the mere fact that he has been arrested; and the mere fact that he has been charged with a crime does not mean that he’s guilty. That’s what the lawyers are trying to tell you. You understand that?
“MR. DUKE: Yes.
“THE COURT: And, until the State comes forward with enough evidence to prove that he’s guilty beyond a reasonable doubt, he’s presumed to be innocent. That’s what the law says. Now, you agree with that?
“MR. DUKE: I agree with that.
“THE COURT: The mere fact that he has been arrested and he has been charged with a crime, do you believe that to be evidence that he’s guilty?
“MR. DUKE: No, sir.
“THE COURT: All right.
“MR. BURNET: But, Your Honor, that is not the question I asked the man. I asked the man if the fact that he was charged, if he believed that was any evidence of this crime, and he indicated, yes.
“THE COURT: I asked him the same question.
“MR. BURNET: I make a move to strike. I make a move to strike Juror # 132 on that basis.
“THE COURT: What does the State have to say?
“MR. CARMODY: Your Honor, I think the gentleman just responded that he would not consider the fact that the man is charged with a crime as evidence of his guilt. I think that possibly the way that Mr. Burnet phrased his initial question may have confused him somewhat. But, I think that now, he has stated unequivocally that he would not consider that as evidence of his guilt, and that he would presume the man to be innocent and the State would have to prove guilt beyond a reasonable doubt.
“THE COURT: That’s what I understood, too. All right, he will not be struck for cause.
* * * * * *
“MR. CARMODY: Judge, I’m just going to clarify his answer if I may. Mr. Duke, just for purposes of clarification, are you saying that you would be able to presume the defendant to be innocent; and that you know that the State has to prove his guilt beyond a reasonable doubt? Can you apply those two things?
“MR. DUKE: I think so.
“MR. CARMODY: Okay. And, you would not assume that as evidence, the fact that he’s charged with a crime? In other words, he stands charged with a crime, would you use that as evidence, or would you just listen to the evidence from the witness stand? Would you use the fact that he’s charged with a crime as evidence?
“MR. DUKE: No.”

In determining the qualifications of a prospective juror, the trial court has very wide discretion, and the court’s ruling will not be disturbed on appeal unless it is clearly against the evidence and constitutes a clear abuse of discretion. State v. Jones, 384 S.W.2d 554 (Mo.1964); State v. McGrew, 534 S.W.2d 549 (Mo.App.1976). All doubt should be resolved in favor of the finding of the trial court because he is in a far better position to determine a challenge for cause than an appellate court. State v. McGrew, supra.

In determining whether or not a venireman can act impartially, it is necessary to view all the facts presented and not selectively include or exclude certain facts. In the instant situation, venireman Duke appeared to indicate in answer to questions by defense counsel that he would consider the fact that appellant had been charged with a crime as some evidence of guilt. However, upon further questioning by the court, Mr. Duke’s views were clarified and he indicated that he would not consider the fact that appellant was charged with a crime as evidence of guilt. Further, Mr. Duke indicated that he understood and agreed with the presumption of innocence and the reasonable doubt standard. Under these circumstances it cannot be said that the trial court abused its discretion in refusing to strike Mr. Duke for cause. State v. Drake, 518 S.W.2d 335 (Mo.App. 1975).

Appellant relies on the cases of State v. Holliman, 529 S.W.2d 932 (Mo.App.1975); State v. Carter, 544 S.W.2d 334 (Mo.App.1976); and State v. Thompson, 541 S.W.2d 16 (Mo.App.1976) to substantiate his contention that it was error for the trial court not to strike Mr. Duke for cause. In each of these cases, a venireman indicated some prejudice which would disqualify him from service. In Thompson and Carter the trial court summarily denied the motions to strike for cause without asking any clarifying questions. In Holliman, the trial court indicated he felt he was bound by the venireman’s own assessment of his ability to provide the defendant with a fair trial and failed to exercise discretion. These situations differ from the instant case because the trial court affirmatively exercised his discretion in asking clarifying questions of Mr. Duke to determine his suitability as a juror. An abuse of this discretion is not shown by the record.

Appellant next asserts that the trial court committed reversible error by sustaining the prosecutor’s objection to a portion of defense counsel’s closing argument. During closing argument defense counsel stated:

“She hangs her hat on what she observed of his face. Well, you get those pictures, you ask for those pictures. Did you hear her mention the scar over Mr. Treadway’s eye? Did you hear her mention the scar on the middle of his forehead?”

The prosecuting attorney then objected on the ground that there was no evidence of any scars and was sustained. Defense counsel indicated that the scarring over appellant’s eyes was evident from the photographs introduced into evidence, but the trial court again sustained the objection on the basis the argument was beyond the scope of the testimony. The jury subsequently requested appellant’s photographs during their deliberations.

Although Rotha Grimes testified that she identified appellant based on his facial characteristics, she was neither questioned about nor mentioned scarring on appellant’s face. The sole reference to scars during testimony was a question asked of the responding police officer by defense counsel pertaining to whether Mrs. Grimes had mentioned body scars to him at the time she gave the officer a description of her assailant. The photographs to which defense counsel referred in his closing argument were introduced into evidence by the State for the purpose of Mrs. Grimes’ identification testimony.

The general rule is that counsel may properly comment in closing argument on matters in evidence and may draw inferences from the evidence. State v. Fields, 314 S.W.2d 723 (Mo.1958). Since the photographs were in evidence, the trial court in this instance erred in sustaining the prosecutor’s objection to defense counsel’s argument regarding appellant’s photographs and the absence of any indication that Mrs. Grimes noticed scars on her assailant’s face.

However, the error was not prejudicial to appellant. Questions of the propriety of oral argument are addressed to the discretion of the trial court, and an appellate court will not interfere absent abuse of that discretion and prejudice to the appellant. State v. Ball, 529 S.W.2d 901 (Mo. App.1975). While the State’s objection to defense counsel’s argument was sustained, the argument was not stricken and counsel clearly got the matter before the jury. This is evidenced by the fact that counsel admonished the jury to examine the photographs of appellant in their deliberations and the jury subsequently requested these photographs for examination. Since counsel successfully got his argument before the jury, the trial court’s ruling does not constitute reversible error. State v. Banks, 468 S.W.2d 623 (Mo.1971).

Appellant next contends that the trial court erred in overruling his motion to dismiss Count II of the information, the armed criminal action count, because prosecution for both first degree robbery and armed criminal action places appellant in double jeopardy for the same offense. Appellant asserts that his rights under Article I, § 19, Mo.Const., are thus violated. Article I, § 19 prohibits a person being put “again in jeopardy of life or liberty for the same offense, after being once acquitted by a jury . . . .” This section does not technically apply to appellant’s situation, but Missouri's common law prohibition against a defendant being placed twice in jeopardy precludes a second conviction and punishment for the same offense. State v. Toombs, 326 Mo. 981, 34 S.W.2d 61, 63 (1930). Further, there is no readily discernible difference between the Fifth Amendment guarantee against double jeopardy, enforceable against the states through the Fourteenth Amendment, and the common law guarantee as applied in this State. State v. Richardson, 460 S.W.2d 537, 538 (Mo. banc 1970).

In determining double jeopardy, Missouri follows the separate or several offense rule rather than the same transaction rule. State v. Carter, 535 S.W.2d 537, 538 (Mo.App.1976).

“. . . This means that a defendant can be charged with and convicted of several offenses which arise from the same transaction, incident or set of facts, without violation of double jeopardy. State v. Moton, 476 S.W.2d 785, 788[3, 4] (Mo.1972). Indeed, the very same act can support multiple convictions without infringement of double jeopardy so long as the convictions rest on separate offenses. State v. Whitley, 382 S.W.2d 665, 666[2, 3] (Mo.1964).
“The double jeopardy doctrine is directed to the identity of the offense, and not to the act. State v. Toombs, 326 Mo. 981, 34 S.W.2d 61, 64[3] (1930). It forbids the State from piecemeal prosecution of an offense. In the determination of whether several charges from one act or transaction are identical, our courts look to ‘whether each offense necessitates proof of an essential fact or element not required by the other’; if so, there is no identity of offense. State v. Chambers, 524 S.W.2d 826, 829[1, 2] (Mo. banc 1975).” State v. Carter, supra.

Appellant asserts that he was placed in double jeopardy by being tried and convicted of both robbery in the first degree and armed criminal action because both convictions stemmed from the same “act of force”, i. e., the pointing of a gun at Rotha Grimes and the subsequent theft of a purse which was in her custody. Appellant maintains that the State in effect prosecuted him for separate parts of a single offense, which is prohibited by the Fifth Amendment. State v. Gordon, 536 S.W.2d 811, 818 (Mo.App.1976). The State responds that appellant was not placed in double jeopardy because each offense requires proof of elements not required to prove the other. Under Missouri’s several offense rule, such multiple convictions are permissible if the defendant has in law and in fact committed separate crimes. State v. Toombs, supra, 34 S.W.2d 61 at 64.

In Kowalski v. Parratt, 533 F.2d 1071 (8th Cir.), cert. denied, 429 U.S. 844, 97 S.Ct. 125, 50 L.Ed.2d 115 (1976), the defendant challenged his Nebraska convictions for robbery and use of a firearm in the commission of the robbery on double jeopardy grounds. Robbery is defined under a Nebraska statute as the forcible taking of property from another by violence or by putting in fear with intent to rob or steal. Neb.Rev.Stat. § 28 — 414 (Supp.1974). Under a separate statute, the use or possession of a firearm, knife, brass or iron knuckles, or any other dangerous weapon during any felony constitutes a separate felony calling for a consecutive three to ten year sentence. Neb.Rev. Stat. § 28-1011.21 (Supp.1974). The Eighth Circuit Court of Appeals held that the defendant’s writ of habeas corpus was properly denied because under the test applied in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the defendant was not placed in double jeopardy since each offense required proof of a different element, although the same facts supported both convictions.

In Missouri, first degree robbery is defined in § 560.120, RSMo 1969:

“Every person who shall be convicted of feloniously taking the property of another from his person, or in his presence, and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person . shall be adjudged guilty of robbery in the first degree.”

The fact that the crime is committed by means of a dangerous or deadly weapon is not an element of first degree robbery. State v. Nelson, 532 S.W.2d 855, 856 (Mo.App.1975).

Section 559.225, RSMo Supp.1976, provides that any person who commits any felony “by, with, or through the use, assistance, or aid of a dangerous or deadly weapon” is also guilty of the crime of armed criminal action.

The two offenses do not overlap. First degree robbery requires proof only of the taking of property by means of violence or fear. Armed criminal action requires proof of the use of a dangerous or deadly weapon during the commission of a felony. The use of a weapon is not an element of first degree robbery, although it may factually be a part of the transaction. As noted by the Eighth Circuit Court of Appeals in Kowalski:

“The ‘gist’ of the robbery charge is the taking of property by violence or fear. The ‘gist’ of the weapon offense is the use or possession of certain dangerous weapons in situations where it is particularly likely that the weapons may be used to injure victims, law enforcement officers, or bystanders.” 533 F.2d 1071, at 1073.

Since the two offenses are not the same in law, appellant’s double jeopardy protection has not been abrogated.

Appellant further contends that his conviction for armed criminal action is invalid because the armed criminal action statute is a general statute which may not be applied when a more specific statute, i. e., first degree robbery, defines a crime and sets punishment. As noted above, armed criminal action and first degree robbery are two distinct offenses, and therefore do not overlap. Further, the Missouri first degree robbery statute does not now provide for an enhanced sentence due to the use of weapons. Section 560.135, RSMo Supp.1975, provides the same punishment for robbery in the first degree by means of a dangerous and deadly weapon and for robbery in the first degree by any other means. Such punishment is to be “imprisonment by the division of corrections for not less than five years.” Thus, prosecution under the armed criminal action statute is not precluded due to a more specific statute imposing punishment for use of a weapon during the commission of a robbery. Cf. United States v. Eagle, 539 F.2d 1166 (8th Cir. 1976); State v. Harris, 337 Mo. 1052, 87 S.W.2d 1026 (1935).

Lastly, appellant alleges that the trial court erred in sentencing appellant to consecutive terms based on the court’s belief that consecutive sentences are mandatory under § 559.225, RSMo Supp.1976. Section 559.225 states in part:

“The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous or deadly weapon.”

A determination of whether sentencing under this section must be consecutive or may be concurrent hinges on the meaning of the words “in addition to”. The statute itself gives no further indication of whether consecutive sentencing is mandatory.

In construing a penal statute, the general rule is that a criminal statute must be construed liberally in favor of the defendant and strictly against the state.

“It is an ancient rule of statutory construction and an oft-repeated one that penal statutes should be strictly construed against the government or parties seeking to exact statutory penalties and in favor of persons on whom such penalties are sought to be imposed. When the law imposes a punishment which acts upon the offender alone, and it is not a reparation to the party injured, and the punishment is entirely within the discretion of the law giver, it will not be presumed that the legislature intended the punishment to extend farther than is expressly stated.
⅜ ⅝ ⅜ ⅝ ⅛ ⅜
And as a corollary of the rule, in case of doubt concerning the severity of the penalty prescribed by a statute construction will favor a milder penalty over a harsher one.” 3 Sutherland, Statutory Construction § 59.03 (4th ed. 1974).

The words “in addition to”, standing alone, do not clearly mandate that a sentence under the armed criminal action statute be imposed consecutive to a sentence for the felony conviction upon which the armed criminal action charge is based. The phrase is defined in Webster’s Third New International Dictionary 24 (3rd ed. 1966) as meaning “over and above”. Whether the sentence under § 559.225 is imposed consecutively or concurrently, it is clearly “over and above” that imposed for the basic felony. In the absence of express language by the legislature mandating that sentences under § 559.225 be consecutive, it appears that the trial court should be able to sentence a defendant consecutively or concurrently as it sees fit. Wright v. State, 24 Md.App. 309, 330 A.2d 482 (1975).

Appellant is not entitled to a new trial. However, the judgment of the trial court is reversed and the case is remanded for resentencing wherein the trial judge shall exercise his judicial discretion with reference to whether sentences imposed on the two counts are to be concurrent or consecutive. State v. Baker, 524 S.W.2d 122, 131 (Mo. banc 1975).

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

SEILER, J., dissents in separate dissenting opinion filed.

SEILER, Judge,

dissenting.

I respectfully dissent from that portion of the principal opinion concerning whether defendant’s conviction under Count II for armed criminal action constitutes a second conviction for the same offense in violation of his rights under the double jeopardy clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment and the common law prohibition against double jeopardy as applied in Missouri. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); State v. Richardson, 460 S.W.2d 537 (Mo. banc 1970); State v. Toombs, 326 Mo. 981, 34 S.W.2d 61 (1930).

The double jeopardy clause prevents the state from punishing a defendant more than once for the same offense. United States v. Martin Linen Supply Co., 430 U.S. 564, 568-570 n.6, 97 S.Ct. 1349, 1353 n. 6, 51 L.Ed.2d 642 (1977); State v. Toombs, supra, 34 S.W.2d at 63; State v. Gordon, 536 S.W.2d 811, 818 (Mo.App.19.76). The offenses are “the same” for purposes of double jeopardy unless each requires proof of an additional fact which the other does not. Jeffers v. United States, 432 U.S. 137, 150, 97 S.Ct. 2207, 2216, 53 L.Ed.2d 168 (1977); Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977); Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

The majority opinion, following Kowalski v. Parrott, 533 F.2d 1071 (8th Cir.), cert. denied, 429 U.S. 844, 97 S.Ct. 125, 50 L.Ed.2d 115 (1976), observes that the “use of a weapon is not an element of first degree robbery, although it may factually be a part of the transaction.” Thus since “the two offenses are not the same in law, appellant’s double jeopardy protection has not been abrogated.” In the present case, however, as discussed later herein, we are not dealing with a detached theoretical application of our statutory scheme.

Kowalski, supra, upon which the majority relies, is based in large part upon the traditional reading of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the dimension of which is discussed in the principal opinion, and upon Michener v. United States, 157 F.2d 616 (8th Cir.), rev’d, 331 U.S. 789, 67 S.Ct. 1509, 91 L.Ed. 1818 (1946) (per curiam). In Michener, the 8th Circuit panel considered the consecutive conviction and sentencing of the defendant for both manufacture and possession of a counterfeiting plate in violation of 18 U.S.C. § 264 (1940).

“There can be no doubt,” the court said, “but that separate offenses might be charged and proved under this statute, but that does not solve the question here presented. We must interest ourselves not with what might have been done, but what was actually done in this case.” Id. at 618.

The United States Supreme Court, in a 6-3 one-paragraph per curiam opinion reversed the 8th Circuit, citing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) and Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505 (1927). Albrecht, involving a multiple count prosecution under the National Prohibition Act, ruled in appropriate part that “[t]he fact that the person sells the liquor which he possessed does not render the possession and the sale necessarily a single offense.” Id. at 11, 47 S.Ct. at 254. In the instant ease, the sale/possession distinction is not helpful. Defendant and his companion committed the robbery, placing their victim in fear by brandishing the weapon which is the singular object of the second count upon which defendant was convicted. Had he committed the robbery without a weapon, he obviously could not have been tried independently for armed criminal action. Thus Albrecht is not instructive because sale and possession of unlawful material are distinctly different crimes. Under the facts of this case, there is nothing distinctive about the crime of armed criminal action.

Blockburger, supra, upon which Michener and the majority opinion here so strongly rely, has been recently and significantly modified with respect to the exclusivity of its test for judging whether one or two offenses have been committed in a multiple count prosecution under circumstances such as are found in the present case.

“The Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense. Even if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires relitigation of factual issues already resolved by the first.” Brown v. Ohio, 432 U.S. 161, 166 n. 6, 97 S.Ct. 2221, 2226 n. 6, 53 L.Ed.2d 187 (1977).

In the instant case the defendant is being punished twice for two offenses the factual basis of which is exactly identical. No additional fact is here required for his conviction of armed criminal action other than that which was proved as an essential element of his conviction for robbery in the first degree. However we may theoretically construct and construe these statutes so as to recognize that they might be constitutionally secure, this defendant under these facts in this case is being punished twice for the same offense, namely robbery. His rights should not depend upon a conceivable construction of two statutes, his conviction under one of which was wholly and completely dependent upon his conviction under the other. When “ ‘a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense.’ ” Brown v. Ohio, supra, 432 U.S. at 168, 97 S.Ct. at 2226, quoting In re Nielsen, 131 U.S. 176, 188, 9 S.Ct. 672, 33 L.Ed. 118 (1889).

As an example, Brown strongly relies upon and “merely restates” the holding of In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889), where the court held that a conviction of a Mormon on a charge of cohabiting with his two wives over a two and one half year period barred a subsequent prosecution for adultery with one of them on the day following the end of that period. The court pointed out that conviction for adultery required proof that the defendant had sexual intercourse with one woman while married to another, while conviction for cohabitation required proof that the defendant lived with more than one woman at the same time. Obviously, these two offenses did not overlap, they were not the same in law, which according to the principal opinion in the present case would mean there was no double jeopardy. Yet, the court in Brown v. Ohio, supra, 432 U.S. at 166 n. 6, 97 S.Ct. at 2226 n. 6, said that the separate offenses in Nielsen were held to be the “same” for purposes of protecting the accused from having “ ‘to run the gantlet’ a second time.”

So it is here. It is true that robbery can be committed without the use of a gun. But as pointed out in Cain v. United States, 19 F.2d 472, 474 (8th Cir. 1927) this does not necessarily save the situation from double jeopardy. In Cain, the 8th Circuit followed Nielsen, supra, and held there was double jeopardy in a case where the defendant was charged in one count with selling narcotics to one Draper and in a second count with sending narcotics to Draper by mailing them to him. The court said: “The question whether the first count does not embrace the identical facts and acts charged in the second count is a serious and difficult one . . . The trouble is not with the law but with the facts. This possibility of a violation of either statute by wholly different acts is readily demonstrable . We think, however, it is a question of what was actually done rather than a question of what might have been done.” When the taking of the property is done by fear produced by the use of a gun, as was the case here, that particular robbery could not be committed without the use of a gun. When the prosecutor established robbery under the facts of the present case he necessarily also established armed criminal action. This makes the defendant run the gantlet twice when he is tried and punished for both.

Needless to say, the fact that this is all being done in one trial with two counts, is no different with respect to the double jeopardy risk than doing it in successive prosecutions, as was the case in Nielsen, supra. The double jeopardy clause protects against multiple punishments for the same offense, North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

I would therefore reverse the conviction on Count II.


author: HENLEY, Judge.

text:
    ST. LOUIS COUNTY, Missouri, Plaintiff-Appellant, v. SECURITY BONHOMME, INC., and State Tax Commission of Missouri, Defendants-Respondents.
    No. 59739.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1977.
    Defendants-Respondents’ Motion for Rehearing Denied Dec. 19, 1977.

      George W. Lang, II, Clayton, Mo., for appellant.
    Edward P. McSweeney, St. Louis, Mo., for respondent.
   HENLEY, Judge.

This is an appeal by St. Louis County (County) from a judgment affirming an order of the State Tax Commission (Commission) fixing the 1975 assessed value of real estate owned by Security Bonhomme, Inc. (Security).

Security owns the Chromalloy Plaza office building and the land on which it is located in Clayton, Missouri. The county assessor determined that on January 1, 1975, the assessment date, the true value in money of this building and land was $7,469,820, and in accordance with § 137.-115,. RSMo Supp.1975, assessed it for ad valorem tax purposes at 33y3% thereof, or $2,489,940. Of these totals $275,760 was the true value in money of the land alone resulting in an assessed value of $91,920, and $7,194,060 was the true value in money of the building resulting in an assessed value of $2,398,020. Security appealed this assessment to the county Board of Equalization and, upon affirmance by that Board, appealed to the State Tax Commission, contending before both of these bodies that the assessed valuation was too high.

In December, 1975, the Commission heard evidence as to value from two expert witnesses, one for the County and the other for Security. The opinions of these two experts were poles apart as to the true value in money of the improvements, but there was no dispute whatever as to the value of the land. The Commission’s decision was that the value of the land and improvements on January 1, 1975, was $4,031,385, approximately $4,000,000 less than the estimate of the County’s witness and approximately $800,000 more than the estimate of Security’s witness. Hence, the Commission fixed the total assessed value of land and improvements at $1,343,795, being 33V3% of $4,031,385.

The Chromalloy Plaza building is new. Its construction began in 1971 and was completed for occupancy in 1973. It, and an attached underground parking facility, were built as an investment solely for rental to commercial tenants. It was partially occupied for the last three months of 1973. All of the building was available for occupancy for the first time in 1974. On January 1,1975, approximately 60% of the building was occupied and in December, 1975, when the Commission hearing was held, its occupancy had increased to approximately 80%.

Security’s witness, a general partner in the firm which owned Security, had 17 years experience in the real estate development and management business. He testified that the 1974 gross income for the building and parking garage was $985,000 and its operating expenses were $528,000, leaving a net income for land and improvements of $457,707; that he agreed with the County’s assessment of the land at $275,760 which, capitalized by him at 12%, produced an income of $33,091 on the land alone; that he capitalized the balance of the net income ($457,707 less $33,091) of $424,616 at 14½% (being the 12%, plus 2½% per year as depreciation of the building over a period of 40 years, its economic life, according to the witness) which produced a value of $2,928,-386 for the improvements; that, based on these calculations, it was his opinion the true value in money of this real estate as of January 1, 1975, was $3,204,146, being $275,760 for the land and $2,928,386 for the improvements; that the office building and garage had not reached their income potential on January 1, 1975. He also testified that the cost of construction of the improvements was $6,457,000, but that he had the opinion that the cost of construction method of determining value was not the proper method to employ in this case and, therefore, did not consider it in forming his opinion of value; that of the three methods of valuation of real estate for tax purposes mentioned by him (“Capitalization of Income,” “Market Data,” and “Cost of Construction”), he believes the capitalization of income method is the most accurate for determining true value in money of an office building such as this. He further testified that he knew of no sales in the market of comparable properties and, therefore, did not consider the market data method in forming his opinion of value.

The County’s witness, an employee of the Assessor’s office, testified that in determining the true value in money of this real estate as of January 1, 1975, he considered the capitalization of income method and the cost of replacement of improvements method, but that he “relied mainly” upon the first. Using the capitalization of income method, he estimated that the value of the property on assessment date was $8,000,000; using the cost of replacement of improvements method, he estimated a value of $10,-000,000.

In his application of the capitalization of income method, he started with an estimate of $546,394 (before payment of real estate taxes) as the net income from the land and improvements for the year 1975 and capitalized that income at 14% to determine its value as a part of an “income stream” based on an economic life of 50 years. Based on his calculations of the 1975 net income he then proceeded to estimate and project for each of the next 49 years (1) gross income, (2) losses due to vacancies and credit, (3) expenses before real estate taxes, and (4) net income before taxes. To this net income balance he applied an arbitrary and unexplained numerical factor which, he said, produced the present (January 1,1975) value of all the net income he expected to be produced during the building’s fifty-year economic life. The value of that income, thus produced, was then capitalized at 14% to reach what was said by him to be the value of this “income stream” or the true value in money of the property on January 1, 1975. Near the close of his testimony he said: “This type of report is just a little different than direct capitalization.”

In connection with its decision, the Commission made and filed findings of fact and conclusions of law, which, omitting introductory paragraphs, are as follows:

“2. No dispute exists as to the value of the land as of January 1,1975, being $275,-760.00 actual value, and $91,920.00 assessed value.

“3. The St. Louis County Assessor placed the assessed value of the improvements as of January 1, 1975, at $2,398,-020.00.

“4. There is no dispute that the Assessor places assessed value at one-third true value, so that the Assessor placed the true value of the improvements as of January 1, 1975, at $7,194,060.00.

“5. On appeal, the St. Louis County Board of Equalization affirmed the assessment of the Assessor.

“6. The improvements were conceived, constructed and exist as an income property.

“7. Both parties agree that the ‘income’ or ‘economic’ method of appraisal is the most accurate for determining the true value of a property such as taxpayer’s.

“8. Taxpayer’s witness Loomstein, qualified by 17 years experience in the development, ownership and management of commercial properties, testified that the ‘income’ or ‘economic’ appraisal method estimates true value by determining a gross income figure allowing for vacancy, deducting therefrom expenses except for depreciation and debt service, and deducting an additional amount as a fair return to the value of the land. The resulting figure is net income attributable to the improvements, and true value of the improvements is obtained by capitalizing such figure by a percentage which combines a rate of return of investment with a rate of return on investment, since both return of capital (depreciation) and rate of return to capital are considered by buyers and sellers of income properties.

“9. Gross income for 1974 was $985,-707.00, and net income (without deduction for debt service or depreciation) was $457,-707.00, expenses being $528,000.00.

“10. Witness Loomstein testified that a fair return to land value would be 12%, or $33,091.00, reducing net income attributable to improvements to $424,616.00.

“11. Witness Loomstein testified that a fair capitalization rate to determine true value of improvements would be 14½%, 12% return plus 2V2% depreciation, and this when applied to net income of $424,616.00, results in a true value of improvements of $2,928,286.00, or true value of land and improvements of $3,204,146.00.

“12. Witness Schneider, a qualified appraiser employed by Assessor, testified for Assessor per Assessor’s Exhibit A, that he estimated true value of the improvements by anticipating net income over an estimated 50-year life, in varying amounts, obtaining a figure of $7,960,672.00.

“13. To his figure of $7,960,672.00, witness Schneider added $2,950.00 which he testified represents the present value of the undisputed value of the land fifty years hence, for a total value of the property of $7,963,622.00, which he rounded to $8,000,-000.00.

“14. Witness Schneider’s estimates of income and expenses over a 50-year period are obviously speculative and uncertain.

“15. The commission accepts the Assessor’s estimate of net income for 1975 of $564,394.00 for determining value as of January 1, 1975.

“16. In light of prevailing economic conditions January 1, 1975, the commission finds that the Assessor’s figure of 14% is a fair capitalization rate for determining the true value of the entire property, land and improvements, when applied to net income.

“17. Based upon net income of $564,-394.00, capitalized at 14%, the true value of the property, land and improvements, is $4,031,385.00, and the assessed value is $1,343,795.00, as of January 1, 1975. The true value of the improvements is thus $3,755,625.00, and the assessed value, $1,251,875.00.

“CONCLUSIONS OF LAW

“2. The ‘income’ or ‘economic’ appraisal approach is most accurate in estimating the true value in money of an income property than the ‘cost’ appraisal approach, since it indicates and is based upon the rate of return a potential buyer would expect and demand, which in turn is largely determinative of the true or market value of an income property.

“3. Under the evidence, for 1975 taxation purposes, a 14% capitalization rate is proper for use in estimating value under the ‘economic’ appraisal method.”

Upon petition for review being filed by the County, the circuit court held a hearing and, as indicated, entered the judgment from which this appeal was taken.

“We recognize that neither this court nor the trial court may substitute its discretion for discretion vested in the Commission and should not set aside its findings unless such findings are ‘unsupported by competent and substantial evidence upon the whole record’; or are ‘for any other reason, unauthorized by law’; or are ‘arbitrary, capricious or unreasonable’; or unless the finding ‘involves an abuse of discretion.’ ” Section 536.140, RSMo 1969; State ex rel. Kahler v. State Tax Commission, 393 S.W.2d 460, 464[2] (Mo.1965); Stein v. State Tax Commission, 379 S.W.2d 495, 498[3] (Mo. 1964).

The County contends that the court erred in affirming the Commission’s decision, because the assessed valuation of the property as fixed by the Commission was the product of (1) a failure to consider a relevant value factor, and (2) a failure to take into consideration future earning capacity of the improvements in determining the amount of income to be capitalized; that for these reasons the decision of the Commission is not supported by competent and substantial evidence upon the whole record.

As to the relevant value factor allegedly not considered, the County argues that the Commission also should have considered the cost of replacement of improvements instead of relying on the capitalization of income method as the only factor to be considered in determining true value in money. We do not agree with this argument. It confuses factors with methods and methods with factors. There are several methods of determining the true value in money of real estate. Four are mentioned in this case: capitalization of income; market data; cost of construction; cost of replacement of improvements. Each of these methods is made up of several factors or elements, each of which must be present and considered in applying the method of which they are a part. The cost of replacement of improvements is not a factor or element of, and therefor is not relevant to, the capitalization of income method of determining true value in money of property for tax assessment purposes. It is a separate method of determining such value made up of its own factors or elements, a method the Commission, in its discretion, may adopt and employ where the facts and circumstances of the case and the law permit. Xerox Corporation v. State Tax Commission, 529 S.W.2d 413, 416-418[2-4] (Mo. banc 1975).

In general, the parties relied on the capitalization of income method of determining value. The testimony of Security’s expert witness was devoted solely to that method. Testimony of the County’s expert was that he “relied mainly” on this method but that he also “considered” the cost of replacement of improvements method. However, he did not state that the latter method had any relation to or effect upon the capitalization of income method. In discussing the process he employed to find true value through the capitalization of income method, he acknowledged that his “report is just a little different than direct capitalization.” Apparently, the Commission agreed with him in this respect. The Commission, in its discretion, adopted and employed the capitalization of income method for determining true value. In employing this method it was required to and did “take into account all factors [thereof] relevant to a determination of ‘true value in money.’ ” Stephen and Stephen Properties, Inc. v. State Tax Commission, 499 S.W.2d 798, 802[2] (Mo. 1973). Considering the record, we find no abuse of discretion.

There is no merit in the County’s contention that in using the estimate of net income for the whole year 1975 to determine true value as of January 1, 1975, the Commission was not considering and trying to determine the future earning capacity of the property. It is true that the Commission declined to consider evidence of the County estimating income and expenses for the next 50 years, but it did so because it found this evidence “speculative and uncertain.” In so finding, the Commission was exercising its discretion. We find no abuse of discretion in this respect, considering the record.

The judgment is affirmed.

MORGAN, C. J., BARDGETT, DONNELLY, RENDLEN and SEILER, JJ., and McMILLIAN, Special Judge, concur.

FINCH, J., not sitting.


author: DONNELLY, Judge. FINCH, Judge,

text:
    Logan M. MORRIS, Appellant, v. Dorothy A. ULBRIGHT et al., Respondents.
    No. 59938.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1977.
    Appellant’s Motion for Rehearing Denied Dec. 19, 1977.
    Alan E. South, Kansas City, for appellant.
    Robert M. Hill, Richmond, for respondents.
   DONNELLY, Judge.

This is an action to quiet title to land.

On March 8, 1947, Lina A. Ulbright and Frank O. Ulbright, her husband, executed a deed which conveyed the property in question to Logan Mitchell Ulbright “and his bodily heirs.” The natural son, and only child, of Logan Mitchell Ulbright was Logan M. Ulbright, Jr. On October 4, 1950, Marion Y. Morris and Ruby N. Morris adopted Logan M. Ulbright, Jr. and his name was changed to Logan Marion Morris.

Linda A. Ulbright and Frank O. Ulbright are deceased.

On February 9, 1964, the heirs of Lina A. Ulbright conveyed to T. B. Alspaugh and Sara Jane Alspaugh.

On February 12, 1972, Logan Mitchell Ulbright died.

On January 24, 1973, the Alspaughs conveyed to Dorothy A. Ulbright and Ralph C. Ulbright.

Logan Marion Morris is plaintiff and claims title under the deed executed March 8, 1947. Dorothy A. Ulbright and Ralph C. Ulbright are defendants and claim title under the deed executed January 24, 1973.

The trial court entered summary judgment in favor of defendants. Plaintiff appealed to the Kansas City District of the Court of Appeals where the judgment of the trial court was reversed. The case was then transferred to this Court, by order of this Court, and will be decided here “the same as on original appeal.” Mo.Const. Art. V, § 10.

The parties agree that the deed of March 8, 1947, created an estate tail; that under the deed and Section 442.470, RSMo 1969, the first taker (Logan Mitchell Ulbright) took a life estate; and that the heir of the body (Logan M. Ulbright, Jr. — Logan Marion Morris) took a contingent remainder in the fee. Davidson v. Davidson, 350 Mo. 639, 167 S.W.2d 641 (1943). It is not seriously disputed that had Logan M. Ulbright, Jr., not been adopted on October 4, 1950, he would have taken in fee simple absolute upon the death of Logan Mitchell Ulbright on February 12,1972. Defendants contend, however, that because of the provisions of Section 453.090, RSMo 1969, the adoption of plaintiff on October 4, 1950, “acted to remove the Plaintiff from the bloodstream of his natural father Logan Mitchell Ulbright and with no exception ceased and determined all rights and duties between Plaintiff and his natural father.”

Section 453.090, RSMo 1969, provides that when a child is adopted in accordance with the provisions of Chapter 453, “all legal relationships and all rights and duties between such child and his natural parents * * * shall cease and determine.”

The essential question in this case then becomes: Does plaintiffs interest, if any, in the land derive from Lina A. Ulbright and Frank O. Ulbright (grantors in the deed of March 8, 1947) or is plaintiff’s interest, if any, one of inheritance from his natural father Logan Mitchell Ulbright (life tenant under the deed of March 8, 1947)? If the latter, plaintiffs interest was cut off by the adoption. If the former, it was not.

In 1 H. Tiffany, The Law of Real Property § 48 at 70 (3rd ed. 1939), we find the following:

“On the death of a tenant in tail, the land passes to the next heir of the body of the original donee; but such heir, though he takes because he is the heir of the body, takes not by descent, but as a substituted purchaser from the original donor, per formam doni, as it is expressed * * * ii

This proposition finds express support in Pollock v. Speidel, 17 Ohio St. 439, 49 Am. Dec. 467 (1867) and implied support in Davidson v. Davidson, supra, and Byrd v. Allen, 351 Mo. 99, 171 S.W.2d 691 (1942). See also 31 C.J.S. Estates § 21, at 47 (1964).

In addition, Section 442.490, RSMo 1969, provides that when a remainder shall be limited to the heirs of the body of a person to whom a life estate is given, the remain-dermen who qualify as heirs of the body “shall be entitled to take as purchasers in fee simple, by virtue of the remainder so limited in them.” (Emphasis ours).

Accordingly, we are of the opinion that plaintiff derived his title as purchaser under the deed from Lina A. Ulbright and Frank O. Ulbright and not by inheritance from his natural father. Grimes v. Rush, 355 Mo. 573, 197 S.W.2d 310 (1946). We hold that his interest in the land was not extinguished by the adoption and provisions of § 453.090, supra, because his interest in the land does not derive from his natural father.

The judgment is reversed and the cause remanded.

MORGAN, C. J., and HENLEY, J., concur.

BARDGETT and SEILER, JJ., concur in result.

FINCH, J., dissents in separate dissenting opinion filed.

RENDLEN, J., dissents and concurs in separate dissenting opinion of FINCH, J.

FINCH, Judge,

dissenting.

I respectfully dissent.

The principal opinion concludes that the essential question for determination is whether plaintiff takes his interest, if any, as purchaser from Lina A. Ulbright and Frank O. Ulbright, grantors in the deed of March 8, 1947, or whether he takes by inheritance from his natural father who was the life tenant under said deed. It correctly concludes that one who qualifies as an heir of the body takes his interest by purchase and not by inheritance, but, in my view, this conclusion is not determinative of the issues before us.

The principal opinion simply assumes that under § 442.490 plaintiff qualified as an heir of the body. Such an assumption, in my view, is contrary to the plain language of § 442.490, which provides:

“Where a remainder shall be limited to the heirs, or heirs of the body, of a person to whom a life estate in the same premises shall be given, the persons who, on the termination of the life estate, shall be the heir or heirs of the body of such tenant for life shall be entitled to take as purchasers in fee simple, by virtue of the remainder so limited in them.” [Emphasis supplied]

The statute does not purport to identify who shall take the property as a purchaser. On the contrary, the statute expressly conditions thé vesting of the estate by purchase to those who may be identified as the heir or heirs of the body of the life tenant.

The majority opinion, in paraphrasing the above emphasized portion of the statute, apparently recognizes that only “the re-maindermen who qualify as heirs of the body ‘shall be entitled to take as purchasers . ’ ” but it contains no analysis of how the plaintiff herein satisfies the express condition precedent of meeting the description “heir of the body” at the death of the life tenant in tail. The opinion correctly concludes that the plaintiff’s interest (if any) would not derive by inheritance from his natural father but it overlooks the fact that the identity of the one to take the property by purchase under the deed can only be determined by reference to the existing legal relationship (heir of the body) to the life tenant at the time of the life tenant’s death.

I believe the essential question before the court is whether the plaintiff was the heir of the body of Logan Mitchell Ulbright when he (Ulbright) died. Resolution of this question necessarily involves an examination of our cases construing § 442.470, the entail statute, and the impact of § 453.090, the “consequences of adoption” statute, on the interest of a remainderman thereunder.

The parties do not question that the limitation in this conveyance to “Logan Mitchell Ulbright and his bodily heirs” would have created a fee tail at common law. By virtue of § 442.470, this limitation vested Logan Mitchell Ulbright with a life estate and created a remainder to those persons to whom the estate tail would, on the death of the first grantee in tail, pass according to the course of the common law. However, this remainder is not vested, but is a contingent remainder of the “fourth class,” the contingency existing as to persons not ascertained at the time the grant is made. Grimes v. Rush, 355 Mo. 573, 575, 197 5.W.2d 310, 311 (1946). Thus, the effect of § 442.470 is that a conveyance to one and his or her bodily heirs carves out of the grantor’s fee simple estate a life estate in the first taker and a contingent remainder in those qualifying as bodily heirs on the death of the first taker, while the fee or reversion remains in the grantor, his assigns, heirs or devisees pending determination of the original grant at its vesting or falling in for want of takers as bodily heirs of the grantee for life. Mattingly v. Washburn, 355 Mo. 471, 476, 196 S.W.2d 624, 626 (1946); Davidson v. Davidson, 350 Mo. 639, 642, 167 S.W.2d 641, 642 (1943).

In determining the identity of those qualifying as a “bodily heir,” it must be noted that the word “heir” is one of technical legal significance. It is defined in Black’s Law Dictionary (4th ed. 1951) as: “the person appointed by law to succeed to the estate in case of intestacy.” An “heir of the body” is a subclass of “heir” — i. e., “an heir begotten or borne by the person referred to .” In Missouri, the phrase has been held to mean “an heir begotten of the body; a lineal descendant.” Clarkson v. Hatton, 143 Mo. 47, 56, 44 S.W. 761, 762 (1898). The Restatement of Property § 306 (1936) provides:

“When a limitation is in favor of the ‘heirs of the body’ of a designated person, or is in other words of similar import, then, unless a contrary intent of the conveyor is found from additional language or circumstances, the persons so described are the lineal descendants of the designated ancestor who under the applicable local law would succeed to the property if such ancestor died owning the property and intestate . . . .” [Emphasis supplied]

It has long been recognized in this state that the law of inheritance is a creature of statute. In re Cupples Estate, 272 Mo. 465, 473, 199 S.W. 556, 558 (1917). Furthermore, “the right of the Legislature to prescribe the right of descent and inheritance cannot be doubted. It is not a natural right.” Cupples, supra at 471, 199 S.W. at 557. Thus it is readily apparent from the foregoing that the relationship of one person as an “heir of the body” of another is a legal relationship which is established by statute rather than a natural relationship which exists as of right independent of a statutory grant.

It is axiomatic that a man does not have heirs until he dies. How then does anyone receive a contingent remainder in fee by purchase before the life tenant’s death? Logically, because the nature of the contingency is that those who will take the property are unascertainable until the death of the life tenant, nobody can be said to own a remainder interest at all until such death, at which point the estate vests in possession or falls in for want of takers. However, it may be said that those who are presumptive heirs of the body at any given moment do have at least an expectancy interest. That is, once a child is born to the life tenant it is clear that at any given moment the life tenant could die and the remainder in fee would immediately vest in both interest and possession in the surviving child by virtue of the fact that the child would then be identified as an heir of the body under the existing intestacy statute, from which such identity derives. This expectancy of the presumptive heir is recognized in Missouri to be of sufficient weight to constitute a contingent remainder which may be “conveyed” by quitclaim deed. § 442.020; Grimes v. Rush, 355 Mo. 573,197 S.W.2d 310 (Mo.1946). Of course, any interest claimed under such a deed would be subject to the same contingency of the grantor being properly identified as an heir of the body under the intestacy statute upon the death of the life tenant.

With the above principles in mind, the facts submitted for our consideration tend to establish that Logan M. Ulbright, Jr., the natural son and only child of Logan Mitchell Ulbright was born sometime prior to March 8, 1947. On that date, Lina A. Ul-bright and Prank 0. Ulbright, her husband, executed a deed which conveyed the property in question to Logan Mitchell Ulbright “and his bodily heirs,” the grantors reserving a life estate unto themselves. Apparently, then, Logan M. Ulbright, Jr., held a contingent remainder from and after the date of the deed, the nature and incidents of which are outlined above. It is properly agreed by the parties that if plaintiff had not been adopted prior to the death of Logan Mitchell Ulbright the remainder in fee would have vested in interest and possession at the moment of said death. At that moment, the heirs of the body of Logan Mitchell Ulbright could be identified by reference to the intestacy statute and plaintiff, had he not been adopted by Marion and Ruby Morris, would clearly have held such legal relationship. The remaining question, therefore, is the effect of plaintiffs adoption prior to his natural father’s death. Specifically, does the adoption by another of the natural son of a living life tenant in tail prevent the son from being identified as an heir of his natural father’s body upon the father’s death, thereby barring his claim to the remainder interest in fee by purchase under a deed?

Although the above question is one of first impression in this court, I believe our previous interpretations of the adoption statutes clearly mandate an affirmative answer. Our current statute on consequences of adoption, § 453.090, provides in pertinent part:

“1. When a child is adopted in accordance with the provisions of this chapter, all legal relationships and all rights and duties between such child and his natural parents (other than a natural parent who joins in the petition for adoption as provided in section 453.010) shall cease and determine. Said child shall thereafter be deemed and held to be for every purpose the child of his parent or parents by adoption, as fully as though born to him or them in lawful wedlock.” [Emphasis supplied]

The above quoted language is identical in all pertinent respects to Laws 1917, p. 194, § 1677, which, with accompanying sections, was the first statutory codification of a comprehensive scheme of adoption by judicial proceedings. Prior to that law, adoption could be accomplished by deed, but with more limited consequences. Thus, cases decided by reference to previous adoption laws are no longer authoritative where execution of the instrument for construction and the adoption occur subsequent to 1917. Shepard v. Murphy, 332 Mo. 1176, 61 S.W.2d 746 (1933).

Shepard was the first case to reach this court which necessitated an interpretation of the effect of the 1917 adoption legislation on the inheritance rights and relationships established by the inheritance statute as between the natural parent and adopted child. The cause before the court was a claim by the natural mother that she was entitled to inherit property of her natural son when he was predeceased by his adopting parents. As noted previously, the court there recognized that inheritance is not a natural right but is subject to the control of the Legislature. The court determined that the legal right of inheritance from a child dying intestate and without descendants which is ordinarily enjoyed by the natural parents under the statute of descent and distribution had been abrogated by the enactment of the section of the adoption statute above quoted. Thus, the mother could not inherit from her natural child from and after his adoption because “the ordinary legal right of the natural parents to inherit from the child is cut off and terminated; ... all legal relationship and rights of the parent by blood are abrogated . . . .” 332 Mo. at 1183, 61 S.W.2d at 749.

In St Louis Union Trust Co. v. Hill, 336 Mo. 17, 76 S.W.2d 685 (banc 1934), this court again addressed the question of the effect of the 1917 adoption legislation. The case involved construction of a will which left to one Frank W. Hill, Jr., a life estate with a remainder in fee to his “heirs at law.” Two sons of Hill’s wife by a previous marriage were adopted by Hill on his deathbed. Determining that the sons so adopted met the description of “heirs at law” and therefore took the remainder as tenants in common, this court stated the effect of the 1917 adoption legislation.

“The Legislature had a right to and did in strong and emphatic language change the blood stream of an adopted child. Under our present statutes an adopted child’s relations with its natural parents cease; and by law it becomes the child of its adopting parents for every purpose as fully as though born to the adopting parents in lawful wedlock. In other words, the adopted child is taken out of the blood stream of its natural parents and placed, by the operation of law, in the blood stream of its adopting parents, if adopted under the provisions of our present statutes.”

The language above which refers to removal of the child from its natural parent’s bloodstream was fully supported by the holding in Shepard that the natural parent was not the heir of the child. It could be characterized under the facts of Hill as gratuitous dictum by this court and without force of law but for the adoption of this language in Wailes v. Curators of Central College, 254 S.W.2d 645 (Mo. banc 1953), where the question of an adopted child’s status as heir of its natural parents and grandparents was squarely presented. This court, in citing the above language with approval, held that an adopted child could not support a valid claim as a pretermitted heir of its natural grandparents because the legal relationships or rights as heir of the natural parents or grandparents, by statutory mandate, “cease and determine” upon adoption. It is important to note that the language construed to effect such a result was contained in § 453.090(1), set out supra, which, although enacted in 1948, was merely a reenactment of identical language contained in the 1917 provision. Thus it may fairly be stated that the effect of the provision so construed in Wailes has remained unchanged from 1917. The parties have not cited, nor did my own research reveal, any cases to the contrary.

The disposition of the property in this case must be controlled by the intent of the grantor as it may be determined within the four corners of the deed. We are not free to speculate on what the grantors’ intent might be today were they living, nor would such inquiry be permissible even if the grantors were alive. In this case, the words chosen provide little guidance in and of themselves. However, a wealth of statutory guidance has been provided as to the meaning of the words chosen. The deed itself offers not even the slightest nuance that the grantors intended anything other than the established statutory meaning. If any actual intent may be found at all, it is that the words were chosen precisely to achieve the effect supplied by statute.

By limiting their grant to Logan Mitchell Ulbright “and his bodily heirs,” the grantors expressly declared their intent that the property should pass to their son for life, according to the course provided by § 442.-470. The identity of those who would receive the property in fee either by reversion or remainder were likewise to be determined by reference to that statute. By longstanding judicial interpretation, those who are heirs of the body of the life tenant at death are determined by reference to the intestacy statute; those lineal descendants meeting the description of “heirs” under the statute being “heirs of the body.”

Since 1917, some 30 years prior to the execution of this deed, the statutes of this state have provided that, upon adoption, all legal relationships and rights between the natural parent and adopted child shall “cease and determine.” The relationship of a child to a parent as “heir” is determined upon death and is clearly a legal relationship because it arises solely by statute. The status of one as “presumptive heir” is likewise a legal relationship. Such relationships are clearly terminated as between the natural parent and adopted child at the time of the decree of adoption. Thus, absent some other language in the instrument indicating a contrary intention, an adopted child is neither the “heir” nor “heir of the body” of the natural parent.

Under the facts of this case, at the time of the deed Logan Mitchell Ulbright, Jr., apparently then in being, took a contingent remainder of the fourth class. It could not then be ascertained whether he would be an heir of the body of his natural father at the father’s death; but, had the father died prior to his adoption, he would have taken the remainder in fee by purchase under the deed. Upon the decree of adoption, however, Logan Mitchell Morris no longer held a contingent remainder under the deed because at that moment he was no longer the presumptive heir of his natural father and was incapable from that moment forward of meeting the description in the deed of who should take at his natural father’s death.

Such a result is not disconsonant with the underlying policy of the entail statute. Though some states have abolished the fee tail estate entirely by vesting the fee in the first grantee, Missouri’s statutory provision allows the grantor to keep the land in the family for at least one generation as a balance between the interest of the grantor to keep the land in the family permanently and the interest of the state in free aliena-bility. If any intent on the part of the grantors here may be discerned, their selection of the fee tail form of transfer evidences an intent to keep the land in the family. The construction of the adoption statutes declared in Wailes and urged herein furthers that policy and likely intent. I would therefore affirm the judgment.

      . Section 442.490, RSMo 1969, which’abolished the rule in Shelley’s case, has been held to have such an effect. Riggins v. McClellan, 28 Mo. 23, 30 (1850); Cook v. Daniels, 306 S.W.2d 573 (Mo. 1957). See also Fratcher, Trusts and Succession in Missouri — 1952, 23 Mo.L.Rev. 467, 470 (1958). Note that Fratcher attributes like effect to § 442.470 infra note 4, even in the absence of § 442.490. Id. at 470.

      . All statutory references are to RSMo 1969 unless otherwise indicated.

      . The plain implication of the disposition in the principal opinion is that the remainderman holds a vested interest subject to defeasance should he not survive the life tenant. This effect is contrary to reason, to the plain language of the statute and to the longstanding decisions of this court, as demonstrated in the textual discussion, infra.

      . Section 442.470, RSMo 1969, provides:
      “In cases where, by the common or statute law of England, any person might become seized in fee tail of any lands, by virtue of any devise, gift, grant or other conveyance, or by any other means whatever, such person, instead of being seized thereof in fee taii, shall be deemed and adjudged to be, and shall become, seized thereof for his natural life only; and the remainder shall pass in fee simple absolute to the person to whom the estate tail would, on the death of the first grantee, devisee or donee in tail, first pass according to the course of the common law, by virtue of such devise, gift, grant or conveyance.”

      . Section 453.090, RSMo 1969, provides:
      “1. When a child is adopted in accordance with the provisions of this chapter, all legal relationships and all rights and duties between such child and his natural parents (other than a natural parent who joins in the petition for adoption as provided in section 453.010) shall cease and determine. Said child shall thereafter be deemed and held to be for every purpose the child of his parent or parents by adoption, as fully as though bom to him or them in lawful wedlock.
      “2. Said child shall be capable of inheriting from, and as the child of, said parent or parents by adoption as fully as though born to him or them in lawful wedlock and, if a minor, shall be entitled to proper support, nurture and care from said parent or parents by adoption.
      “3. Said parent or parents by adoption shall be capable of inheriting from and as the parent or parents of said adopted child as fully as though said child had been born to him or them in lawful wedlock, and, if said child is a minor, shall be entitled to the services, wages, control and custody of said adopted child.
      “4. Said adopted child shall be capable of inheriting from and taking through his parent or parents by adoption property limited expressly to heirs of the body of such parent or parents by adoption.
      “5. The word ‘child’ as used in this section, shall, unless the context hereof otherwise requires, be construed to mean either a person under or over the age of twenty-one years.”

      . Identical language is used in In re Cupples Estate, 227 Mo. 465, 199 S.W. 556 (1917). To like effect, 26 C.J.S. Deeds § 99 at 862.

      . Quoting State ex rel. Fath v. Henderson, 160 Mo. 190, 60 S.W. 1093 (banc 1901). See also Thomas v. Higgenbotham, 318 S.W.2d 234, 238 (Mo.1958); Gardner v. Vanlandingham, 334 Mo. 1054, 69 S.W.2d 947 (1934); Krause v. Jeannette Inv. Co., 333 Mo. 509, 62 S.W.2d 890 (1933).

        .See Wailes v. Curators of Central College, 254 S.W.2d 645 (Mo. banc 1953); Shepard v. Murphy, 332 Mo. 1176, 61 S.W.2d 746 (1933).

      . Grimes, cited by appellant, stated in dictum that the interest of the remainderman was held contingently subject to it being defeated by their predeceasing their mother or being defeated in part by birth of other children who with them thereafter qualified as “heirs of her body.” Appellant urges that these are the only involuntary contingencies which could defeat the remainder. However, the contingency presented in this case was not then before the court and the holding was limited to the ability of the remainderman to voluntarily convey his interest. The dictum cited is more compatible with a vested remainder subject to defeasance, which has never been recognized as the effect of the entail statute, and thus should not be followed.

      . This section, from which the subsections of § 453.090 were drawn, contained a further proviso that “neither the said adopted child nor said parents by adoption shall be capable of inheriting from or taking through each other property expressly limited to heirs of the body of such child or parent by adoption.” This proviso is expressly reversed in § 453.090(4), supra note 5, adopted in 1948. Such action by the legislature appears to support the conclusion reached herein because it cures the inequity of the adopted child being considered as incapable of qualifying as an heir of the body of either the natural parent, by virtue of the language voiding all legal relationships between the natural parent and the child, or of the adopting parents, by virtue of the proviso of the 1917 act.

      . See note 7 and accompanying text supra.

      . 336 Mo. at 25, 76 S.W.2d at 689. (Emphasis in original)

      . Note, 19 Mo.L.Rev. 86 (1954).

      . For the most part, cases addressing related questions have involved construction of provisions in wills or trusts executed by either the natural or adoptive parent or grandparent. A detailed analysis of such cases would serve no useful purpose here because the results in such cases may be distinguished on the basis of the testator’s or settlor’s intent, which is generally more fully disclosed in such instruments than in the case before us of a deed using terms which have a settled statutory construction. See, e. g., First Nat’l Bank of Kansas City v. Sullivan, 394 S.W.2d 273 (Mo.1965); Commerce Trust Co. v. Weed, 318 S.W.2d 289 (Mo. 1958); Commerce Trust Co. v. Duden, 523 S.W.2d 97 (Mo.App.1975).

      . As an aid in determining the grantor’s intent, the courts of this state have frequently held that the maker of an instrument is presumed to know the law and, accordingly, presumed to employ language in the context of such law. Commerce Trust Co. v. Duden, 523 S.W.2d 97, 99 (Mo.App.1975), and cases there cited. Such presumption is particularly appropriate where, as discussed subsequently in this opinion, the language employed has enjoyed a settled and longstanding construction prior to the drafting of the instrument.


author: RENDLEN, Judge.

text:
    STATE of Missouri ex rel. HERMITAGE R-IV SCHOOL DISTRICT, Relator-Respondent, v. HICKORY COUNTY R-I SCHOOL DISTRICT, Robert Reese, Jack L. Logan, Claude Bybee, Charles Crawford, Donald Mowhiney and Amadee Fugate, Respondents-Appellants.
    No. 59603.
    Supreme Court of Missouri, En Banc.
    Dec. 19, 1977.

      Carl F. Sapp, Columbia, for relator-respondent.
    David Smith, Springfield, for respondents-appellants.
   RENDLEN, Judge.

Mandamus brought at the relation of Hermitage R-IV School District to enforce a Board of Arbitration award, ordering respondent Hickory County R-I School District to pay Hermitage $52,393.49 resulting from boundary changes transferring property out of Hermitage into the Hickory District. The Districts were unable to agree on apportionment of the assets and liabilities resulting from the change and Hermitage appealed to the State Board of Education for the appointment of a Board of Arbitration pursuant to § 162.041, RSMo 1969. The Board was appointed, a hearing conducted in which both parties availed themselves of the opportunity to fully present their views and on July 25, 1975, Hermitage was awarded $52,393.49 to compensate its loss.

On Hickory’s failure to pay, Hermitage petitioned the circuit court for mandamus and the alternative writ issued containing allegations that the award had not been paid and “that respondents have or will have sufficient sums of money on hand to pay the award and judgment or that Respondent may increase its levy within the Constitutional limits to pay the judgment and award.” By its return, Hickory admitted most of the factual allegations of the alternative writ, however, by paragraph 5(a) through (i) of the return Hickory attacked the validity of both the original award and the alternative writ of mandamus. The trial court struck all of paragraph 5 from the return, entered judgment on the pleadings and issued its peremptory writ ordering respondents “immediately after receipt of this Writ [to pay] the Hermitage R-IV School District the sum of $52,-393.49 together with interest at six percent from the 25th day of July, 1975,” and to take the necessary administrative action securing issuance of the warrant for such payments. Respondent was further ordered to “make known to us before [this court] ... on the 15th day of July, 1976 how you have executed this Writ.” Hickory appealed.

Respondent’s contentions center on the action of the court striking paragraph 5 of its return and summarily issuing its peremptory writ without a hearing on the factual issues raised by the stricken paragraph. For reasons hereinafter discussed, we find the court erred in striking subparagraph 5(f) of the return and issuing the writ in its present form without first determining the factual issue raised.

It is not questioned that mandamus is the proper procedure for Hermitage R-IV [relator-respondent] to seek enforcement of its arbitration award. State ex rel. Hufft v. Knight, 121 S.W.2d 762 (Mo.App.1938); City of Edina to Use of Pioneer Trust Co. v. School District of City of Edina, 305 Mo. 452, 267 S.W. 112 (banc 1924). Further, as discussed by the court in Hufft, supra at page 764, a school district owes the duty to pay an obligation established by a judgment against it and its officers are required to take such steps as the Constitution authorizes for the discharge of the liability fixed by the judgment. This duty results from the plain moral as well as the legal obligation of a district to pay its debts and no discretion within the legal limitation of the performance of the duty can rightfully be claimed or exercised.

Turning now to the stricken paragraph 5(f), as previously noted the court by its peremptory writ ordered immediate payment of the amounts due. In so doing the court assumed the verity of the alternative writ’s allegation (taken from the allegation of relator’s petition) “that respondents have or will have sufficient sums of money on hand to pay the award and judgment.” Absent that allegation in the alternative writ, which if denied must be supported by proof, the court could not properly require immediate payment. State ex rel. Black v. Renner, 235 Mo.App. 829, 148 S.W.2d 809 (1941). Paragraph 5(f) of the return constituted a statement of ultimate fact, denying that sufficient funds were on hand to pay the award, thereby presenting issues of fact requiring resolution before the court could order immediate payment. Accordingly for this limited reason the judgment will be reversed.

We have examined respondent’s remaining contentions concerning the other stricken subsections of paragraph 5 and find them without merit. Subparagraphs (a), (b), (c) and (h) attack the decision or award of the Board of Arbitration and do not address the allegations of the alternative writ; hence, they were properly struck. State ex rel. Brandon v. Hickey, 462 S.W.2d 159 (Mo.App.1970); State ex rel. Kopper Kettle Restaurants, Inc. v. City of St. Robert, 424 S.W.2d 73 (Mo.App.1968). Further, said subparagraphs are insufficient to show the decision (judgment) of the board was void on its face or so indefinite and uncertain as to demonstrate want of jurisdiction. With the presumption of regularity and right acting, indulged in the absence of any indication to the contrary, the decision of the board would withstand the test of a review on writ of certiorari, State ex rel. Reorganized School District R-9 of Grundy County v. Windes, 513 S.W.2d 385, 390 (Mo.1974), a fortiori it will withstand the attempted collateral attack in this mandamus-proceeding to enforce the judgment. By paragraph 5(a) of the return, Hickory contends the board of arbitration decision was void because in referencing the statute under which it proceeded, the decision mistakenly mentioned § 162.031. The board’s actions, clearly apparent from its order, demonstrate it proceeded under § 162.041 and the mistaken reference to § 162.031 did not void its action and warrants no further comment. In 5(b) respondent charges the award was invalid because § 162.041 under which the board proceeded refers to § 162.-691, RSMo 1969, for procedural guidelines. The legislature, about a year prior to the board’s action repealed § 162.691 but left intact § 162.041, the basic authority for the board’s action; thus the jurisdiction to proceed remained. Paragraph 5(c) of the return complains that the absence of right of appeal constitutes a denial of due process, voiding the award. Right of appeal in such cases is not essential for due process, Ex parte Williams, 345 Mo. 1121, 139 S.W.2d 485 (1940). It should also be pointed out that while there is no statutory provision for appeal from an award made under § 162.041, RSMo 1969, review of the record is available by certiorari, Windes, supra. Paragraph 5(h) attacks the award as arbitrary, contending bias of the members. It does not raise jurisdictional challenge to the award nor address the allegations of the alternative writ. It too was properly stricken. State ex rel. Brandon v. Hickey, supra. Paragraph 5(g) suggests the writ is invalid bécause the order in effect requires respondent school board to increase its levy, an act which respondent alleges it has no right or power to perform. This is not well taken for these reasons: (1) the writ does not so require, (2) notwithstanding Hickory’s contention that the board may not increase the levy, the court may on a proper showing order the Hickory board to secure through lawful means a levy increase within constitutional limits. Stricken paragraph (i) contains no statement of ultimate facts but mere conclusions requiring no discussion here. Cady v. Hartford Accident & Indemnity Co., 439 S.W.2d 483 (Mo.1969). Paragraph 4(d) and 4(e) in combination complain that the arbitration award and the court’s alternative writ of mandamus were violative of Mo.Const. Art. VI, 26(a), in that they “[anticipate] revenues . for a period of more than one year, i. e., for a period of four years.” The subparagraphs were properly stricken for the reasons (among others), (1) 4(d) standing alone is a mere conclusion and not a statement of ultimate fact entitling respondent to relief. (2) The constitutional limitation for indebtedness during any year by a school district as provided in Mo.Const. Art. VI, § 26(a), does not affect relator’s judgment or respondent’s obligation thereon, but is a constraint on the board’s authority to incur contractual obligations exceeding the limits defined. It could go only to the narrow question of immediate availability of funds otherwise properly raised by such paragraph 5(f). Thus all portions of paragraph 5 of respondent’s return were properly stricken except subparagraph 5(f).

The judgment is reversed, the cause remanded for further proceedings not inconsistent herewith and subparagraph 5(f) of respondent’s return is ordered reinstated. If, in further proceedings, it is shown the respondent Hickory County R-I School District does not now hold available funds sufficient to pay relator’s award, respondent may be ordered to take all lawful actions to obtain such funds over such period of time as the court may direct and if necessary secure the extension of a sufficient levy within the constitutional limits to provide funds for the payment of the award.

All concur.

      . Section 162.041: “1. If the school boards of the several districts cannot agree upon an adjustment and apportionment of property and indebtedness as provided in section 162.031, the board of either district may appeal to the state board of education, which shall appoint three persons as a board of arbitration to make an adjustment and apportionment of property and indebtedness in accordance with section 162.031. The board of arbitration shall proceed in the manner provided by section 162.691 but it may hold hearings after giving the affected districts reasonable notice thereof before making its award. Each member of the board of arbitration shall be paid fifteen dollars per day by the district instituting the appeal.
      2. Any sum awarded by agreement of the school boards or by decision of a board of arbitration to any school district shall be a legal and valid claim in its favor and against the school district charged therewith. The amount of debt, if any, apportioned to any school district shall be a legal and valid claim against the school district charged therewith. Upon the filing of the agreement of the school boards or the decision of the board of arbitration with the county superintendent, the claim or indebtedness charged against any school district may be collected in the same manner as other claims against a school district.” (Emphasis ours.)

      . Subparagraph 5(f) is as follows: “The award made by the Board of Arbitration and the order as contained in the Alternative Writ of Mandamus is illegal and unenforceable in that it orders the Respondent district to pay money, and, as such, is in violation of Section 165.021 R.S.Mo., in that said section prohibits a school district from the disbursement of any funds except for the specific purposes for which they were levied, collected and received. The Respondent district does not have sufficient money in the treasury in any fund for the payment of such indebtedness and, therefore, under Paragraph 4 of Section 165.021 it is prohibited from the payment of any money as provided in the award made by the Board of Arbitration and as ordered in the Alternative Writ of Mandamus.”

      . Mo.Const. Art. VI, § 26(a) — “No county, city, incorporated town or village, school district or other political corporation or subdivision of the state shall become indebted in an amount exceeding in any year the income and revenue provided for such year plus any unencumbered balances from previous years, except as otherwise provided in this constitution.” (Emphasis ours.)