author: SOMERVILLE, Presiding Judge.

text:
    TECHNICAL & PROFESSIONAL SERVICES, INC., a Missouri Corporation, Petitioner-Appellant, v. The BOARD OF ZONING ADJUSTMENT OF JACKSON COUNTY, Missouri, Cleo H. Muller, Richard S. Doherty, Allan S. Kaufman, James D. Lewis, Lawrence L. Downs, Robert E. Hertzog, D.V.M., and Merle K. Glover, Respondents, and Dr. John Williams, C. M. Zerr and Mrs. C. M. Zerr, George T. Ward and Jeanette Ward, John F. Eidson and Delores Eidson, Intervenors-Respondents.
    No. KCD 28918.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.

      William L. Turner, Edward T. Bullard, Michael J. Gallagher, Gage & Tucker, Kansas City, for petitioner-appellant.
    Michael F. Dandino, Asst. County Counselor, Kansas City, for respondents.
    George A. Tyree, Robert K. McDonald, Cochran, Tyree, Oswald, Miller & Barton, Blue Springs, for intervenors-respondents.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Technical & Professional Services, Inc., a Missouri Corporation (Professional Services), obtained recommendatory approval from the Jackson County Planning Commission (Commission) to establish a cemetery, including a chapel and full-service mortuary, on land owned by it in an unincorporated area of Jackson County, Missouri, in the vicinity of Grain Valley/Blue Springs. Professional Services did not fare so well, however, before the Board of Zoning Adjustment of Jackson County, Missouri (Board). Following a hearing this latter body, vested as it was with authority to issue or deny special use permits after receipt of a report and recommendation from the Commission, declined to issue the special use permit requested by Professional Services. Professional Services, pursuant to Sec. 8.31, Ordinance # 23, February 5, 1973, Jackson County Legislature, appealed the adverse order of the Board to the Circuit Court of Jackson County. Dr. John Williams and others (Intervenors), who appeared in opposition to Professional Services' request for a special use permit at the hearings held by both the Commission and the Board, were permitted to intervene. The Circuit Court of Jackson County also rebuffed Professional Services’ efforts to obtain a special use permit by affirming the Board’s order.

Upon appeal Professional Services implores this Court to reverse the order of the Circuit Court of Jackson County. It advances three grounds as justification for doing so: (1) in denying Professional Services’ request for a special use permit the Board “exceeded” its “statutory authority and jurisdiction” because its decision rested upon “a finding of a lack of need for additional cemetery space and with and for the purpose of regulating business and restricting competition in the community”; (2) the Board’s denial of Professional Services’ request for a special use permit “was arbitrary, capricious, unreasonable and constituted an abuse of discretion as evidenced by”, (a) the Board’s refusal to permit Professional Services to present certain “competent and material evidence” at the hearings held by the Board, (b) the Board’s refusal to consider certain “competent and material evidence” presented at the hearings held by the Board, (c) the Board’s “refusal to review or consider the recommendations of and the transcript of the proceedings before the [Commission]” and its failure “to consider or discuss any of the evidence and testimony presented at the Board hearings prior to rendering [its] decision”, and (d) “bias, resentment and hostility expressed toward [Professional Services] at the Board hearings”; and (3) the Board’s order is unsupported by competent and substantial evidence on the whole record and is contrary to the overwhelming weight of the evidence.

Regarding Professional Services first ground, it is fundamental that the scope of judicial review of the Board’s order encompasses a determination of whether it was lawful, with the question of “lawfulness” turning on whether statutory authority to issue it existed. Art. V, Section 22, Constitution of Missouri. Complete unanimity exists among the parties that Section 16 of the Zoning Order of Jackson County, Missouri, delineates the scope and breadth of the Board’s authority apposite granting or refusing special use permits. So far as here pertinent, Section 16, supra, authorizes the Board to grant special use permits for certain enumerated usages, including “cemeteries, mausoleums, and crematories”, in any zoning district “provided that in their [the Board’s] judgment such use will not seriously injure the appropriate use of neighboring property, and will conform to the general intent and purpose of this Order . . . .” (Emphasis added.) The general intent and purpose of the Order, found in its preamble, is expressed as follows: “promotion of health, safety, morals, comfort, or the general welfare of the unincorporated portion of the county, to conserve property and building values, to secure the most economical use of land and facilitate the adequate provisions of public improvements, all in accordance with a comprehensive plan . . . .” (Emphasis added.) At this point, however, the parties part ways by reason of a certain finding of fact contained in the Board’s order, to-wit, lack of a “definite need of a cemetery in the area”, and an improvident statement by a member of the Board during the early stages of the hearing in response to a remark by Professional Services’ counsel that there was or would be a demand for more cemetery space in the area, to-wit, “Either that, or they [Professional Services] would provide a better or more attractive service, and they would compete with others, and they [existing cemeteries] would end up with empty cemeteries that don’t get filled up.” Professional Services decries the particular finding of fact just iterated as a thinly disguised effort by the Board to regulate the cemetery business and to restrict competition. The Board and the Interven-ers, on the other hand, vigorously reject Professional Services’ position as warped and assert that a lack of “need” for a cemetery, as found by the Board, is commensurate with the Board’s ultimate finding that issuance of the special use permit “is not reasonable and proper and [would] seriously injure the appropriate use of neighboring property, and [would] not conform to nor be within the scope, intent and purpose of the Zoning Order of Jackson County, Missouri.”

Although the courts of this state have never addressed this particular issue in the context asserted by Professional Services, the weight of authority in other jurisdictions is that administrative tribunals vested with power and authority to implement zoning laws may not use such power and authority as a ruse to regulate business and restrict competition. See, for example: City of Miami v. Woolin, 387 F.2d 893 (5th Cir. 1968); Circle Lounge & Grille v. Board of Appeal of Boston, 324 Mass. 427, 86 N.E.2d 920 (1949); Henle v. City of Euclid, 97 Ohio App. 258, 125 N.E.2d 355 (1954); Blumenreich Properties, Inc. v. Waters, 14 Misc.2d 947, 178 N.Y.S.2d 905 (1957); Sun Oil Co. v. Board of Zoning Appeals, 9 Ohio Misc. 101, 223 N.E.2d 384 (1966), and State ex rel. Killeen Realty Co. v. City of East Cleveland, 108 Ohio App. 99, 153 N.E.2d 177 (1958). See generally Anderson, American Law of Zoning § 7.28 at 603. Notwith standing the aforementioned, the issue at hand does not fit the dispositional pattern urged by Professional Services as lack of “need” for a cemetery is commensurate with and cognate to the Board’s ultimate finding that issuance of the special use permit would result in serious injury to the “appropriate use of neighboring property” and would not conform with the general intent and purpose of the Zoning Order of Jackson County, Missouri. Mere speculation that the Board was motivated by policy considerations outside the scope of its authority will not be lightly indulged. Although the Board’s choice of language might have been improved upon and the improvident remarks of one of the board members have been better left unsaid, this court nevertheless concludes that the Board’s finding of a lack “of need” for a cemetery in the area was consistent with and in aid of its ultimate finding that use of the area for cemetery purposes would seriously injure the appropriate use of the neighboring property and would not conform with the general intent and purpose of the Zoning Order of Jackson County, Missouri. Perforce, all findings were commensurate findings under Section 16 of the Zoning Order of Jackson County, Missouri.

The record is replete with ample evidence to support the findings of the Board. Suffice it to say, no dearth of cemetery facilities existed in the general area. Although zoned for agricultural purposes, evidence introduced by the Intervenors substantiates that (1) the area in question was in the early throes of being converted into a residential area, (2) burial facilities are “negative words” to residential buyers, and (3) the presence of a cemetery would stifle development of adjoining property for residential purposes and concomitantly depress its value. The Board’s consideration of “need” for a cemetery does not inexorably connote a regulation of business and restriction of competition as vied by Professional Services. As pointed out in Plaas v. Lehr, 538 S.W.2d 919, 921 (Mo.App.1976), and here deemed both appropriate and analogous, “[i]mplicit in this whole concept of comprehensive zoning is the principle that one seeking a change or a rezoning for the use of land must bear the burden of presenting competent and substantial evidence of a public as well as a private need therefor . . . [gjeneral welfare considerations cannot be disregarded.” As stated in Flora Realty & Investment Co. v. City of Ladue, 362 Mo. 1025, 246 S.W.2d 771, 778 (1952) a determination of “appropriate use” of neighboring property necessarily includes consideration of “all the conditions, physical, economic and social, prevailing within the municipality and its needs, present and reasonably prospective . ”. Under all the evidence the most enlightened view of this case is that the Board weighed the “need” for a cemetery against serious injury to the “appropriate use of neighboring property” and the “general intent and purpose” of the Zoning Order of Jackson County, particularly conservation of “property and building values”, and concluded that the scales tipped heavily in favor of the latter. Tangentially, a sound decisional basis for Professional Services’ first ground for relief is, in a sense, adroitly summarized in Fan Sicklen v. Browne, 15 Cal.App.3d 122, 127-28, 92 Cal. Rptr. 786, 789-90 (1971): “Although cities may not use zoning powers to regulate economic competition . . . it is also recognized that land use and planning decisions cannot be made in any community without some impact on the economy of the community ... we hold that so long as the primary purpose of the zoning ordinance is not to regulate economic competition, but to subserve a valid objective pursuant to a city’s police powers, such ordinance is not invalid even though it might have an indirect impact on economic competition.” For reasons stated, Professional Services is not entitled to any relief under ground one.

The four separate facets of Professional Services’ second ground will be discussed seriatim. First, Professional Services urges that the Board erroneously refused to hear certain “competent and material evidence” which it sought to introduce at the hearing held by the Board. In order to put this matter in proper perspective, it is necessary to point out that the Board, at the insistence of Professional Services, conducted a bifurcated hearing. At the conclusion of the initial hearing, the Board, at the insistence of Professional Services, adjourned the hearing until a later date to give Professional Services an opportunity to rebut certain testimony previously offered by Intervenors regarding a lack of “need” for a cemetery in the general area and the depressant effect a cemetery would have on neighboring properties if a special use permit to establish one was granted. When the hearing before the Board was reconvened, Professional Services called and questioned one expert witness who countered and attempted to nullify Intervenors’ evidence regarding the depressant effect a cemetery would have on neighboring property values and several witnesses who advanced the “need” for a cemetery in the general area. The witness called by Professional Services regarding the effect of a cemetery on neighboring property values testified in depth and at length. At the conclusion of his testimony, Professional Services sought to call two additional witnesses whose testimony would pertain to the same subject matter. The Board refused to entertain any further evidence on the subject matter and its refusal accounts for Professional Services’ present complaint. Parenthetically, the Board also refused to permit Professional Services to introduce certain exhibits in the nature of summariza-tions of the proffered testimony of the two witnesses just mentioned. The Board’s refusal to permit the introduction of these exhibits forms the substance for the second facet of Professional Services’ second ground. As to the matter presently under consideration, Professional Services, the Board and the Intervenors all attempt to analyze it in terms of whether Professional Services was denied the right to a public hearing. Each has been remiss in citing any cases which directly support its respective analysis. This court concludes that the matter best lends itself to being analyzed in terms of whether the Board is vested with discretionary power to limit the number of witnesses it will hear on a particular issue. By way of analogy, an abundance of cases exist in this state recognizing that trial courts are vested with considerable latitude in limiting the number of witnesses permitted to testify as to any given issue. In Markham v. Herrick, 82 Mo.App. 327, 330 (1900), which is representative of such cases, the court stated: “[A] trial court has a discretion to limit the number of witnesses on a particular point, and unless an abuse of that discretion appears the appellate courts will not interfere ... in cases of expert testimony, or . when the introduction of a great number of witnesses tends mischievously and unnecessarily to protract the trial, the court may interfere and stop examinations which are merely cumulative in their nature . . . Although this court’s research has failed to reveal any cases recognizing an administrative tribunal to be possessed with discretion to limit the number of witnesses on a particular issue, the same rationale which recognizes its existence in trial courts seems equally applicable to administrative tribunals. In retrospect, it does not appear that the Board abused its discretion by refusing to permit the two witnesses to testify, particularly so as their testimony was merely cumulative in nature.

Professional Services, by way of the second facet of its second ground, complains that the Board refused to consider certain exhibits summarizing the testimony of the two witnesses who were not permitted to testify in person. The tenor of Professional Services’ brief in this respect is that the exhibits were properly received in evidence but the Board disregarded them for purposes of decisional consideration. It is patent that this facet of Professional Services’ second ground rests upon a false premise. Having never been received or admitted into evidence by the Board the exhibits were not available for consideration when the Board reached the decisional stage of the hearing.

The third facet of Professional Services’ second ground attacks the Board’s purported refusal to review, consider and discuss all the evidence before it at the deci-sional stage. Extensive written findings of fact and conclusions of law contained in the Board’s order rejecting Professional Services’ request for a special use permit bespeak of a thorough and far-reaching consideration of all the evidence before the Board. Moreover, the solemn decision of an administrative tribunal carries with it a strong presumption of validity which cannot be overcome by anything short of “clear and convincing evidence”. Moore v. Bd. of Ed. of Sp. Sch. Dist., etc., 547 S.W.2d 188, 191-92 (Mo.App.1977), and Aubuchon v. Gasconade Cty. R-1 Sch. Dist., 541 S.W.2d 322, 326 (Mo.App.1976). Professional Services has failed to marshal “clear and convincing evidence” to overcome the presumption of validity encasing the Board’s order.

The final facet of the second ground asserts that bias, resentment and hostility expressed toward Professional Services by the Board engendered the Board’s adverse order. Although certain members of the Board addressed pointed inquiries to certain witnesses called by Professional Services, such are not per se indicative of bias and prejudice on the Board’s part toward Professional Services, nor can it be said that such inquiries, when considered in conjunction with all the evidence before the Board, manifested bias and prejudice by reason of the Board’s adverse order. Those timeworn salvoes of proven unreliability, speculation, conjecture, and surmise, lobbed by Professional Services in support of the final facet to its second ground have, traditionally, fallen short of their mark.

Singularly and collectively, the multiple facets of Professional Services’ second ground fail to afford any appellate relief.

Professional Services’ final ground, that the Board’s order is unsupported by competent and substantial evidence on the whole record and contrary to the overwhelming weight of the evidence, lends itself to virtually summary disposition at this point in view of the reasons and correlative evidence heretofore set forth when disposing of Professional Services’ first ground. It is axiomatic that an order and decision of an administrative tribunal unsupported by competent and substantial evidence cannot stand. Mo.Const. Art. V, Sec. 22, and Plaas v. Lehr, supra. It is also axiomatic that appellate courts, when engaged in reviewing administrative decisions, have no right or authority to substitute their judgment for that of the administrative tribunal. So long as the order of an administrative tribunal is supported by competent and substantial evidence and does not exceed the tribunal’s perimeters of authority, it is entitled to nothing less than affirmance on appeal however impalatable it may be to certain parties by reason of their particular interests or beliefs. Evidence of the opposing parties on all major issues in this case stands in stark contrast. In reality, Professional Services’ argument in support of its final ground is cast in terms of attaching greater believability to its evidence as opposed to that of its opponents (Intervenors). This argument ignores judicial commitment to the rule of deference as to findings involving the credibility of witnesses appearing before administrative tribunals. McCallister v. Priest, 422 S.W.2d 650, 658 (Mo. banc 1968).

Professional Services’ principal complaint as to the competency and substantiality of the evidence to support the adverse order pertains to the Board’s ultimate finding that issuance of a special use permit for the establishment of a cemetery would seriously injure the appropriate use of neighboring property. The caliber of evidence sufficient to support an ultimate finding such as this has been infrequently considered at the appellate level. Particularly germane therefore is the case of Hendels Investors v. Zoning Bd. of Town of Westerly, 100 R.I. 264, 214 A.2d 200, 202 (1965), wherein the court held: “The board’s conclusion ‘that the granting of this Special Exception would substantially or permanently injure neighboring residential property’ finds support in the testimony of a real estate expert that a ‘gas station in this area will certainly depreciate the value of the [neighboring] properties’ and reduce the value of adjoining land.” In the instant case there is an abundance of opinion testimony from real estate experts that a cemetery in the area would depress the value of the surrounding property. Professional Services’ third and final ground is equally lacking in merit.

Judgment affirmed.

All concur.

      . Sec. 8.30 Ordinance # 23, February 5, 1973, Jackson County Legislature.

      . “8.31 APPEALS TO CIRCUIT COURT — Any person aggrieved by any decision of the County Board of Zoning Adjustment may present to the Circuit Court of Jackson County, Missouri, a petition in the manner and form provided by Section 536.110 RSMO., 1969.”


source: Caselaw Access Project

author: TURNAGE, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Carl Edward HARDIN, Appellant.
    No. KCD 28928.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.

      C. B. Fitzgerald, Warrensburg, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   TURNAGE, Presiding Judge.

Carl Hardin was convicted of second degree murder and sentenced to imprisonment for twenty years by a jury.

On this appeal Hardin contends error in the following: (1) the order to disclose statements taken from third parties by Hardin’s attorney and his investigator; (2) admitting statements made by Hardin; (3) failure to require the State to disclose names of rebuttal witnesses; and (4) refusing to permit Hardin to waive the right to have the jury instructed on second degree murder and manslaughter. Affirmed.

On the evening of April 1, 1975, Hardin, together with Leon Taylor, drove around Warrensburg, Missouri, in Taylor’s automobile for some time. Taylor’s automobile stopped running in front of a laundromat. After Taylor unsuccessfully attempted to restart his car, he obtained a jack handle from the trunk and went to the front door of the laundromat. With Hardin standing beside him, he broke off the lock with the handle and the two entered. Upon entering the building, they immediately saw Jessie Howarter. Mr. Howarter walked into the next room with Hardin and Taylor following. On the way between rooms, Hardin whispered to Taylor they would have to kill Howarter.

Taylor testified he intended to rob Ho-warter and take his car if he had one. When all three men were in the next room, Taylor asked Howarter if he had any money or a car, and Howarter replied in the negative, although Howarter’s billfold was lying on a table in open view. At this point Hardin struck Howarter above the eye with the jack handle and Howarter fell to the floor. Taylor picked up the billfold and Howarter arose and started to grapple with Taylor. Taylor saw a knife and either stabbed or attempted to stab Howarter. Hardin thereupon struck Howarter with the handle and Howarter again fell to the floor. Taylor had dropped the billfold back on the table when he and Howarter first began wrestling.

After Howarter was struck the second time by Hardin, Taylor ran from the building. He hid under his car and said Hardin did not emerge for about five to ten minutes.

The two pushed the car back a short distance from the laundromat door and attempted to hide the jack handle and knife. Howarter’s body was later discovered by his roommate and the billfold was found to be on the table.

Medical examination of Howarter’s body revealed numerous bruises and contusions on the trunk and arms together with sixteen incision wounds in the body.

Taylor testified he had pleaded guilty to second degree murder and received a sentence of twenty years.

In response to the State’s motion for discovery pursuant to Rule 25.34, the court required Hardin’s attorney to give to the State copies of statements which an investigator working for Hardin’s attorney had obtained from witnesses. No statement given by Hardin was required to be delivered nor did the statements contain any opinions, theories or conclusions of Hardin’s counsel or the investigator.

Hardin first contends the court erred in ordering the disclosure of the statements taken from witnesses because this violated the right of Hardin against self-incrimination, violated the attorney-client relationship and violated the work-product doctrine.

The United States Supreme Court in U. S. v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975) held the discovery of statements taken from witnesses did not violate the defendant’s right against self-incrimination. The court held the right against compulsory self-incrimination does not extend to the testimony or statements of third parties but is a personal right. The court held that information which was obtained from witnesses did not come from the defendant himself and, therefore, did not constitute self-incrimination. The court further pointed out the witnesses were available to both the prosecution and the defense and nothing in the statements came from the defendant himself. All of these facts are present in this case. For the reasons stated in Nobles, the production of the statements did not violate Hardin’s right against self-incrimination.

Hardin further contends the production of these statements violated the attorney-client relationship. The attorney-client privilege is limited to communications between the attorney and his client. Section 491.060[3], RSMo 1969. Of the statements in question, two were notes made by the attorney of what the witness said, and one was of the same tenor made by an investigator. Even though communications are not restricted to oral or written matters, but extend to information communicated by the client to the attorney by other means, nonetheless no communication in any form between Hardin and his attorney was subjected to disclosure. State v. Dawson, 90 Mo. 149, 1 S.W. 827 (1886).

Hardin further contends the production of these statements violated the work-product doctrine. Under Rule 25.39, opinions, theories or conclusions of counsel for the State or for the defendant or members of their legal or investigative staff are not subject to disclosure. This is essence is the work-product doctrine which Hardin claims. None of the statements produced contained any of the material which is not subject to discovery. There was nothing in the statements which reflected anything other than the recollections of the witnesses concerning the activities and dress of Taylor and Hardin. There were no notes of any kind reflecting any impression of the witness or opinion or theory of the case. The discovery of these statements did not violate Rule 25.39 or the work-product doctrine.

Hardin next complains the court erred in admitting over his objection statements which he made to police officers. Hardin made one statement which simply said, “I saw Leon Taylor break the lock. I hear someone holler. I was running home past 218 Madison.” Another police officer testified to his interview with Hardin and related Hardin told him an expanded version of the above statement. Hardin stated he saw Taylor break the lock on the door to the laundromat and immediately started running. He stated he ran around the block and down an alley on the west side of the laundromat building. He told the officer he looked through a window on the west side and saw Taylor striking Howarter and heard Howarter yell, “Oh my God.” Hardin then stated he left the scene. The officer further testified the windows on the west side of the building were completely covered from the inside so that it would have been impossible for Hardin to have seen through the window as he claimed.

Hardin urges the above statements did not constitute admissions nor did they tend to show guilt on the part of Hardin and were, therefore, inadmissible. Contrary to Hardin’s contentions, the statements made did tend to incriminate him and connect him with the crime. By these statements Hardin admitted he was present at the door when the lock was broken. The jury was free to disbelieve the balance of Hardin’s statement, later reiterated by his testimony, that he fled the scene. The statement here is very similar to the statement admitted in State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877 (1931). In that case the court stated at 46 S.W.2d 881 [14, 15]: “Any statements made by a defendant, which tend to incriminate him and connect him with the crime charged, are admissible when voluntarily made.” The statements made by Hardin were admissible because they tended to connect him with the crime.

Hardin next contends the court erred in not requiring the State to disclose prior to trial the names of rebuttal witnesses. Hardin argues he was entitled to these names because the State was required to endorse the names of rebuttal witnesses on the information because this was the second trial. He does not argue the State was required to disclose these names under Rule 25.32. He concedes the rule is stated in State v. Hooker, 536 S.W.2d 487 (Mo.App.1976) that rebuttal witnesses are not re quired to be endorsed on the information under Rule 24.17. Hardin argues, however, that since he testified at his first trial, which resulted in a hung jury, the State knew his testimony and for that reason knew it would use rebuttal witnesses. The difficulty with Hardin’s argument is in the fact the State did not necessarily know Hardin would again testify at his second trial. Hardin, of course, was free to elect not to testify at his second trial and the State would not know of that election until the actual trial. There is no reason to make a distinction as to the endorsement of rebuttal witnesses under Rule 24.17 on the basis of whether a trial is a first or subsequent one. The court did not err when it held the State was not required to list rebuttal witnesses on the information. No question as to disclosure under Rule 25.32 is presented.

Hardin finally contends the court erred in giving instructions to the jury which submitted murder in the second degree and manslaughter because those submissions were not supported by the evidence. Caveat b. under MAI-CR 6.02 states:

Where both conventional murder and felony-murder instructions are supported by the pleadings and evidence and are given, there must be an automatic submission of all lesser grades (MAI-CR 6.06 and 6.08) of conventional murder as distinguished from felony-murder.

MAI-CR 6.06 is murder, second degree, and MAI-CR 6.08 is manslaughter.

Hardin was charged with both conventional first degree murder and felony-murder under § 559.010, RSMo 1969. The evidence heretofore set out was sufficient to support a submission of conventional first degree murder. The evidence would support a finding of willfulness, deliberation and premeditation which are the requirements of first degree murder under the statute. State v. Davis, 400 S.W.2d 141 (Mo.1966). The evidence would further support a finding that the murder of Ho-warter was committed during the attempted perpetration of a robbery which would constitute felony-murder under the same section. ■ State v. Devoe, 430 S.W.2d 164 (Mo.1968).

Since Hardin was charged with both conventional first degree murder and felony-murder and the evidence supported a submission of both of these charges, the instructions submitting second degree murder and manslaughter were required by MAI-CR 6.02, Caveat b. In that posture the court did not err in submitting both manslaughter and second degree murder to the jury.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. George W. TRIPP, Jr., Appellant.
    No. KCD 28945.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.
    Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Jeffrey W. Schaeperkoetter, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   TURNAGE, Presiding Judge.

George W. Tripp, Jr. was convicted of rape, § 559.260, RSMo 1969, and sentenced to twenty years confinement.

On this appeal Tripp raises the sole point that his motion for judgment of acquittal filed at the close of all the evidence should have been sustained because the testimony of the victim was not corroborated. Affirmed.

The victim testified she was walking from her place of employment to her home about 4:00 p.m. She stated Tripp stopped and inquired if she wanted a ride. After first refusing, she decided to accept because she needed to get to her baby-sitter to pick up her daughter. She stated Tripp drove some distance then locked all of the car doors by the automatic lock button. He then drove to a secluded spot. She stated he threatened her with a gun if she did not submit to him and thereafter raped her.

After the consummation of the rape, the victim was allowed to leave the car and she walked to the nearest house. Testimony from the occupants of this and an adjoining house indicated she appeared crying hysterically with her face flushed and her clothes mussed. She reported she had been raped and gave a description of both the man and the automobile, including the license number.

The victim was taken to the hospital where a pelvic examination failed to reveal any external signs of bruises or trauma.

Tripp testified in his own defense and told substantially the same story as the victim, except he stated the victim suggested sexual activity by winks and gestures as soon as she entered the car. He stated after he drove to the secluded spot, he inquired if she wanted to engage in sexual activity and when she consented, they did so. He offered her a ride afterwards but she refused and said she would walk. He left the scene after she left the car.

On this appeal Tripp argues the testimony of the victim, when applied to the admitted facts, renders her testimony unconvincing and leaves the mind of the court clouded with doubts and for that reason her testimony must be corroborated. He relies on State v. Tevis, 234 Mo. 276, 136 S.W. 339 (1911).

It must first be noted Tripp has not preserved his point on appeal for review because he failed to file a motion for a new trial within ten days and no extension was granted. In that circumstance this review can only be under the plain error provision of Rule 27.20. State v. Brown, 543 S.W.2d 796[1] (Mo.App.1976).

A more recent statement of the rule relied upon by Tripp is found in State v. Lee, 404 S.W.2d 740, 747[12, 13] (Mo.1966) in which the court stated:

A number of cases have held that “in statutory rape particularly a prima facie case can be made on the uncorroborated testimony of the prosecutrix. State v. Thomas, 351 Mo. 804, 174 S.W.2d 337. And in rape cases generally the rule is that corroboration is not essential to prove the act of sexual intercourse unless the testimony of the prosecutrix is contradictory and in conflict with physical facts, surrounding circumstances, and common experience so as to be so unconvincing and improbable that it is extremely doubtful.” State v. Wood, 355 Mo. 1008, 199 S.W.2d 396, 398.

It is clear the testimony of the victim made a submissible case and if believed by the jury would support a conviction. The argument that corroboration was required because of the failure of the medical exam to find any physical evidence of force or violence on the body of the victim completely ignores the victim’s testimony that she submitted out of fear. She stated Tripp told her he would use a gun and reached under the seat as if to procure one if she did not submit. The victim did not testify in any fashion which would indicate a physical examination would reveal bruises or other marks on her body.

The testimony of the victim was not in conflict with the physical facts and surrounding circumstances or common experience and was, therefore, not required to be corroborated.

Judgment affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. Sylvester E. JONES, Appellant.
    No. KCD 29033.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.

      Philip H. Schwarz, McMullin, Wilson & Schwarz, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Jeffrey W. Sehaeperkoetter, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from conviction by a jury of two counts of robbery, first degree. Appellant questions whether there was probable cause for a warrantless arrest; whether certain evidence and an identification should have been suppressed; whether the instruction which submitted Count I was without supporting evidence; and whether the State’s opening argument contained an opinion of guilt which deprived him of a fair trial. Affirmed.

Appellant does not question the sufficiency of evidence to sustain his conviction. The record shows that a jury reasonably could find that on January 2,1976, at about 2:45 a. m., Sylvester E. Jones and a companion, both armed with handguns, entered the lobby of the Southland Hotel, 3517 Main, Kansas City, Missouri. Jones’s companion confronted Richard Kurtz, an employee, demanded money, and obtained some $60 in money and some 70 three-cent stamps belonging to Southland Hotel, Corp. (Count I.) Jones went to the adjacent television room, confronted William F. Pro-vance, Jr., a hotel resident, demanded money, and obtained some $16 in money belonging to Mr. Provance. (Count II.) Mr. Pro-vance was then taken to the front desk and ordered to lie face down on the floor beside Mr. Kurtz who had been similarly ordered by Jones’s companion. The assailants left together with the money and property. §§ 560.120 and 560.135 RSMo 1969.

Appellant contends (I) that the cause against him should have been dismissed because he “was arrested without probable cause or reasonable grounds that he committed a felony, and without a warrant; * * * evidence used against [him] at the trial was gathered by the police as a result of the arrest.”

On January 2, 1976, at about 2:45 a. m., Traffic Officer William Clark was patrolling southbound on Main Street and observed “a black vinyl over yellow Cadillac” with a Wisconsin license plate “go around a corner northbound on Main onto eastbound Armour with its lights off.” He first saw the Cadillac when it was “approximately half a block” from the Southland Hotel. He followed the Cadillac about four blocks and it “ran up over the curb and back down on the roadway.” He stopped the Cadillac and when he approached it, observed three black occupants. The driver was unable to produce an operator’s license but showed an “I.D.” bearing the name Travis Jones. Defendant, a brother of Travis, was a passenger in the Cadillac along with another brother, Carl Jones. Officer Clark cited Travis Jones for driving without a license and took him in his police car to the Central Patrol Station at Linwood and Troost, where he intended to administer a breath test for intoxication. After his arrival at the station, Officer Clark saw defendant and Carl come in the front door, “apparently to bond their brother out.” Officer Clark gave the foregoing information to Sergeant Milan Mulac and participated in a subsequent search of defendant which netted a clip of .32 caliber ammunition. Search of Carl Jones netted a large roll of bills and a handful of change. Sergeant Mulac was on duty at the Central Patrol Station on the morning of January 2, 1976. At about 2:45 a. m., he received notice over the police radio of a robbery at the Southland Hotel in the 3500 block of Main Street. The first transmission described the robbery participants as “two Negro males, one . * * * approximately 6 feet, with long black hair, wearing a long black coat. The second * * about five-eight to five-ten, with long hair, wearing a large brim black hat.” A later transmission described a third participant as “a Negro male, approximately six-two, wearing a flowered and checkered coat and they were driving a black over yellow Cadillac.” At about 3:00 a. m., Officer Clark brought Travis Jones to the station under arrest on traffic charges. “I thought he’d match the description of the robbery, because we just don’t see that many Negroes with long, straight hair. * * * when he first brought him in, we got to talking about the arrest he had and asked where he got them.” Officer Clark told him that Travis had been driving a black over yellow Cadillac. “We were preparing to administer a Breathlizer [sic] Test to Travis Jones and two Negro males walked in the front door * * *. They both said they were brothers of Travis and they had come to make his bond.” They acted abnormally and tried to appear inconspicuous. One was wearing a flowered and checkered coat, and one also had long black hair. “ * * * we proceeded to the rear of the police station where the Breathlizer [sic] machine is kept. When we got back there, we arrested all three of them for the armed robbery of the Southland Hotel.” A search was made of all three which netted “identification papers; a lot of cash, a roll of cash; a lot of change; a half a box of .22 caliber ammunition; some loose .32 caliber shells; and a clip of .32 caliber ammunition.”

The foregoing demonstrates facts and circumstances within Sergeant Mulac’s knowledge of which he had reasonably trustworthy information sufficient to warrant a man of reasonable caution to believe that the persons arrested had committed the crime; and, therefore, probable cause for the arrest existed. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); United States v. Taylor, 428 F.2d 515 (8th Cir. 1970), cert. den. 401 U.S. 983, 91 S.Ct. 1208, 28 L.Ed.2d 335 (1971); State v. Granberry, 530 S.W.2d 714-724, 725 (Mo.App.1975); State v. Craig, 406 S.W.2d 618, 622 (Mo.1966). The arrest, based on probable cause and therefore lawful, made lawful incident search of the arrestee and seizure of property from his person. United States v. Heisman, 503 F.2d 1284 (8th Cir. 1974); State v. Masters, 530 S.W.2d 28, 30 (Mo. App.1975).

Appellant cites Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), to assert that his arrest was without probable cause because the police broadcast was not confirmed. That case dealt with the validity of an arrest warrant issued on information from an uncorroborated tipster; and no attempt was made to justify the arrest as a warrantless arrest. United States v. Stratton, 453 F.2d 36, 38, fn. 5 (8th Cir. 1972). In contrast, arrests made by officers based upon information received over the police radio are valid. State v. Granberry, supra; State v. Whorton, 487 S.W.2d 865 (Mo.1972).

Appellant also cites United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), to assert that his arrest was on the basis alone that he and his brothers were black men. The assertion ignores evidence of descriptions, the car, and the circumstances of time and place.

Appellant contends (II) that evidence of two hats, a quantity of stamps, and some .32 caliber ammunition should have been suppressed on his motion “for the reason that they were seized by the police without a valid search warrant, and not incident to the arrest of [defendant], and without [his] permission, and there were no exigent circumstances to warrant the seizure without a warrant.”

The difficulty in appellant’s contention is that the evidence in question was taken from the black over yellow Cadillac, and defendant’s only connection with the Cadillac was that of a passenger in it while under the control of his brother Travis. Accordingly, appellant has not met his burden of showing that he has standing to make this contention. The prerequisite in challenging incriminating evidence seized in an allegedly unlawful search is that the person who would invoke the constitutional limitations on searches and seizures must have standing which he must establish by proof where not conceded or established by the State. This record is devoid of evidence to show any interest, ownership, or otherwise of defendant in the Cadillac to afford him standing to complain of its search. State v. Hornbeck, 492 S.W.2d 802, 808 (Mo.1973); Combs v. United States, 408 U.S. 224, 92 S.Ct. 2284, 33 L.Ed.2d 308 (1972). See also State v. Damico, 513 S.W.2d 351 (Mo.1974).

Appellant cites In re J.R.M., 487 S.W.2d 502 (Mo. banc 1972), to assert standing. By contrast, however, J.R.M. met his burden to show standing to complain of the warrant-less search of his father’s automobile with evidence that he “had the right to use this Corvair at any time; that, in fact, he regularly drove it to school; and that he used the car much as he would have done if title had been in him. He had his own key to the car and was included in the insurance coverage thereon. Furthermore, he lived with his parents where the car was kept.” 487 S.W.2d l.c. 509.

Nor is this a case of “automatic standing” in which the government cannot assert a lack of possessory interest when possession of the seized evidence is an essential element of the offense charged. See, e. g., Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

Appellant contends (III) that lineup and in-court identifications by William F. Provance, Jr., should have been suppressed “for the reason that the line-up was so suggestive as to taint the identification both in court and prior to trial.”

Mr. Provance estimated it took his assailant in excess of two minutes to rob him. The television room in which he was robbed was lighted by a wall lamp. The robber’s face was uncovered and Mr. Provance got a good look at it. After the initial assault in the television room, the robber ordered Mr. Provance to go to the front desk. During the movement the robber slapped him, at which time he was about six inches from the robber’s face.

The lineup was conducted at the Kansas City Police Station at 9:00 a. m., January 2, 1976. Mr. Provance identified Sylvester Jones as the man who assaulted and robbed him earlier that morning from a lineup which, according to a picture in evidence, contained: Sylvester Jones, c/m, 33, 6'2", 175; Travis Jones, c/m, 34, 5'5", 120; Ronald Dorsey, c/m, 17, 5'4", 130; Carl Jones, c/m, 35, 5'6", 150. Mr. Provance saw Sylvester Jones next at the preliminary hearing and then at the time of the in-trial identification.

Appellant’s claim emphasizes age and height dissimilarities between the lineup participants, the extent of confrontation between robber and victim, and memory discrepancy with respect to number of persons in the lineup.

A lineup does not require exact physical conformity of the participants. State v. Word, 527 S.W.2d 708, 710 (Mo. App.1975); Gaitan v. State, 464 S.W.2d 33, 35 (Mo.1971). The lineup in this case was preserved for review by the photograph in evidence, and nothing there appears to suggest the identity of Sylvester Jones as the culprit. State v. Word, supra.

An in-court identification is free of taint when based upon a taint-free independent source. State v. Ross, 502 S.W.2d 241 (Mo.1973); State v. McIntosh, 492 S.W.2d 843 (Mo.1973); State v. Mitchell, 491 S.W.2d 292 (Mo. banc 1973). The in-court identification by Mr. Provance was insulated from taint by an independent source in that he had face-to-face confrontation with his assailant at the time of the robbery. The assailant was not masked, assailant and victim were close together, and there was light in the room. The confrontation covered at least two minutes, and brief periods of time have been held sufficient. See, e. g., fifteen seconds in United States v. Mooney, 417 F.2d 936 (8th Cir. 1969), cert. den. 397 U.S. 1029, 90 S.Ct. 1280, 25 L.Ed.2d 541 (1970); ten seconds in State v. Holland, 530 S.W.2d 730 (Mo.App.1975); two minutes in State v. Patterson, 465 S.W.2d 599 (Mo.1971).

Appellant contends (IV) that Instruction 7, which submitted Count I, whether defendant robbed Richard Kurtz, “was without any supporting evidence.”

The information charged in Count I that Sylvester E. Jones “either acting alone or knowingly in concert with another,” robbed Richard Kurtz; and in Count II that Sylvester E. Jones “either acting alone or knowingly in concert with another,” robbed William F. Provance, Jr.

Instruction No. 7 reads:

“As to Count I, if you find and believe from the evidence beyond a reasonable doubt:
“First, that on January 2, 1976, in the County of Jackson, State of Missouri, Richard Kurtz was in charge of a miscellaneous amount of postage stamps and a miscellaneous amount of U.S. currency the money and personal property of one Southland Hotel, a corporation, and
“Second, that at that time and place the defendant and another took the property from Richard Kurtz by causing him to fear immediate injury to his person, and
“Third, that the defendant and another took the property with the intent to permanently deprive Richard Kurtz of the property and to convert it or any part of it to the use of the defendant,
“Fourth, that the defendant acted either alone or knowingly and with common purpose together with another in the conduct referred to in the above paragraphs,
then you will find the defendant guilty under Count I of robbery in the first degree * * *.”

Instruction No. 8 is identical in submission of Count II except William F. Pro-vance, Jr., was named as the victim.

The court also gave Instruction No. 6 in form MAI-CR 2.10 covering a party’s general responsibility for the conduct of others.

Appellant argues that Instruction No. 7 “directed the jury to find the Defendant guilty if they found that he himself robbed Richard Kurtz. This direction to the jury was without any supporting evidence for the reason that the evidence * * * was all to the effect that the Defendant had nothing to do with Kurtz, but that another robbed him.”

Instruction No. 7 was in form MAI-CR 7.60 for submission of robbery, first degree, modified by MAI-CR 2.12 to submit the conduct of the accused either acting alone or knowingly and with common purpose with another. The evidence showed that Richard Kurtz and William F. Provance, Jr., were robbed in the same incident by two men acting together. One, defendant Jones, assaulted Mr. Provance, while the companion assaulted Mr. Kurtz, after which both assailants forced their victims to lie face down together. Both robbers left together. Such evidence is contrary to appellant’s assertion, and permitted the jury to find that defendant Jones robbed Mr. Kurtz through the acts of his companion as submitted by Instruction 7. State v. Reynolds, 521 S.W.2d 486 (Mo.App.1975); State v. Jones, 524 S.W.2d 186 (Mo.App.1975); State v. Young, 490 S.W.2d 28 (Mo.1973). Cf. State v. Sneed, 549 S.W.2d 105 (Mo.App.1977); State v. Dayton, 535 S.W.2d 469 (Mo.App.1976); State v. Dayton, 535 S.W.2d 479 (Mo.App.1976).

The following occurred during the State’s opening argument:

“You have heard all the evidence, you have seen all the exhibits. And now, you must decide the future of this defendant. You must decide whether or not this defendant shall remain in custody or be returned to live with us in society. In doing this, the Court has given you certain instructions that you must follow and these instructions represent the law and you must follow the law in determining whether or not this defendant is guilty. Unlike this defendant, you must follow the law of Missouri.

“MR. SCHWARZ: Objection to the characterization. MR. STIGALL: Unlike this defendant, you must respect the law— MR. SCHWARZ: Objection to counsel’s characterization. He’s, in effect, saying his opinion of the defendant is guilty.

“THE COURT: Objection’s overruled. MR. SCHWARZ: Which is inappropriate.

“MR. STIGALL: The defendant had no such respect for the law when he came into that hotel that night and robbed Witness Kurtz. The defendant had no respect for the law when he took the money from Witness Provance. He had no respect for fair play when he slapped a cripple because he wasn’t moving fast enough, and that’s the evidence in this case.’’

Appellant contends (V) that the foregoing was an opinion that defendant was guilty of the charges against him and that it “deprived [him] of the presumption of innocence before the trial ended” and thus deprived him of a fair trial.

The remark in question is not the type of expression criticized in the cases on the subject. See 9A Mo. Digest, Criminal Law, And in this case, reference to defendant’s lack of obedience or respect for the law is based on. evidence adduced in support of the charge as opposed to facts not in evidence. State v. Rentschler, 444 S.W.2d 453 (Mo.1969).

Judgment affirmed.

All concur.


author: SOMERVILLE, Judge.

text:
    Ulaska JACKSON, Jr., Appellant, v. STATE of Missouri, Respondent.
    Nos. KCD 29201, KCD 29231.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.

      Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Walter O. Theiss, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and PRITCH-ARD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

Ulaska Jackson, Jr., a black man, was convicted of first degree felony murder (1972) by a Jackson County jury and sentenced to life imprisonment. Failing to obtain relief by way of direct appeal, State v. Jackson, 506 S.W.2d 424 (Mo.1974), he then resorted to Rule 27.26. Jackson’s Rule 27.-26 motion was denied by the trial court absent an evidentiary hearing.

A single point is urged by Jackson on appeal, namely, error on the part of the trial court in summarily denying his Rule 27.26 motion without an evidentiary hearing.

Disposition of Jackson’s lone point pivots on whether the three “grounds” and the “facts” pleaded in support thereof in his Rule 27.26 motion, in conjunction with “the files and records of the case”, “conclusively” show that “he was entitled to no relief”. Rule. 27.26(e) provides, and Smith v. State, 513 S.W.2d 407, 411-12 (Mo.banc 1974), holds, that if the motion and the files and records of the case conclusively show that the movant is not entitled to relief, an evidentiary hearing is not required. Rule 27.26 motions which, upon examination with the “files and records of the case”, present only issues of law, as is true in the instant case, represent classic examples of motions properly determinable without evi-dentiary hearings. Hatfield v. State, 529 S.W.2d 180 (Mo.App.1975); and Meeks v. State, 512 S.W.2d 215 (Mo.App.1974).

The three “grounds” and supportive “facts” alluded to, substantially condensed for sake of brevity, follow. Ground one— supportive facts : Jackson was convicted of an offense different from that for which he was indicted — Jackson was indicted for conventional first degree murder and convicted of first degree felony murder. Ground two — supportive facts: The trial court’s failure to have instructed the jury on “lesser degrees of murder” constituted a denial of “equal protection” because such instructions are routinely given under “identical circumstances” in cases involving “white” defendants — “It is ... a common fact that had the Movant been a ‘white’ defendant, tha n [sic] he would of [sic] received such lesser instructions . . . .” Ground three — supportive facts: Jackson was denied effective assistance of counsel because of the latter’s failure to request the court to instruct the jury on the “defense of duress” — evidence was presented at the underlying trial “to the effect that he [Jackson] was acting under duress because the other persons that were involved stated that they would kill him if he did not do what they said to do.”

As to Jackson’s first ground, it is well established in Missouri that the state, upon satisfying the requirements of proof, may submit felony murder in the first degree notwithstanding the indictment or information under which the accused is being prosecuted charges only conventional murder in the first degree. State v. Granberry, 484 S.W.2d 295, 300 (Mo.banc 1972); State v. Beal, 470 S.W.2d 509, 511-12 (Mo.banc 1971); and State v. Stancliff, 467 S.W.2d 26, 33 (Mo.1971). The trial court was not obliged to grant Jackson an evidentiary hearing before ruling adversely to him on ground one.

As to Jackson’s second ground, it is equally well established in Missouri that alleged errors pertaining to instructions are, by their very nature, treated as trial errors and generally deemed to be immune from collateral attack. Brown v. State, 492 S.W.2d 762 (Mo.1973); and Tucker v. State, 481 S.W.2d 10 (Mo.1972). More directly in point, Jackson’s claim that the jury should have been instructed on “lesser degrees of murder”, presumably second degree murder and manslaughter, lacks legal support. Where the evidence supports a finding that a homicide occurred during the commission of a felony enumerated in Sec. 559.010, RSMo 1969, and no species of proof suggests or supports a conclusion that the homicide was committed otherwise than during the commission of one of the enumerated felonies, instructions on “lesser degrees of murder” are not warranted or required. State v. Thomas, 440 S.W.2d 467 (Mo.1969); State v. Taylor, 421 S.W.2d 310 (Mo.1967); and State v. Kauffman, 335 Mo. 611, 73 S.W.2d 217 (1934). The statement of facts set forth in the opinion affirming Jackson’s conviction and sentence on direct appeal, State v. Jackson, supra, unequivoca-bly demonstrates that the homicide was perpetrated during the commission of a robbery and nothing is contained therein, or in the facts tendered by Jackson in support of his motion, to suggest or support a finding that the homicide was committed otherwise than during commission of the robbery. Stripped bare of conventional niceties, Jackson attempts to circumvent the well established principles just mentioned by making a blanket accusation that the trial bench of this state is habitually guilty of unmitigated racial prejudice in instructing juries in felony-murder cases. Regardless of its verity or lack of verity, such a charge, striking as it does at the very heart of our criminal justice system, possesses ramifications of a profoundly serious nature. Unfortunately, a persistent and pervasive mode of thinking frequently injected into contemporary cases indicates that the accusation may be of a nascent nature. Be that as it may, the accusation is repudiated by reigning case law and unsupported by any pleaded facts. Jackson’s attempt to bolster it by singularly charging that it is “a common fact that had the Movant been a ‘white’ defendant, than [sic] he would of [sic] received lesser instructions . . .” is conclusional and far too gaunt to factually raise the asserted constitutional ground sought to be relied upon. One seeking relief by way of a Rule 27.26 motion must plead facts, not conclusions. Smith v. State, 513 S.W.2d 407, 411 (Mo.banc 1974); and Bynum v. State, 545 S.W.2d 720, 721 (Mo.App.1977). Reported cases involving charges of perfidy bottomed on claims of deprivation of “equal protection” by reason of racial prejudice, although at best only remotely analogous to the charge leveled by Jackson, are exceedingly stringent and demanding concerning the scope and nature of proof required to sustain such charges. See, generally: Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) (exclusion of black jurors by the exercise of peremptory challenges); Martin v. Texas, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497 (1906) (exclusion of blacks from grand jury service); and Moore v. People of State of New York, 333 U.S. 565, 68 S.Ct. 705, 92 L.Ed. 881 (1947) (exclusion of black jurors from petit jury service). Jackson’s second ground, considered as it must be in conjunction with the scarcity of facts, if any, proffered in its support, did not warrant an evidentiary hearing.

Jackson’s third and final ground, ineffective assistance of counsel, was peculiarly susceptible of disposition as a matter of law. Counsel’s failure to request the trial court to instruct the jury on the defense of duress is the gravamen of Jackson’s third and final ground. The defense of duress, with one exception, State v. St. Clair, 262 S.W.2d 25 (Mo.1953), is virtually a stranger to the reported case law of this state. Although duress or coercion was recognized in St. Clair as a defense to robbery in the first degree, the court carefully pointed out, at p. 27, albeit by way of dictum, that according to the “great weight of authority . . . coercion does not excuse taking the life of an innocent person . . . The common law has steadfastly refused to recognize any compulsion, even the threat of death, as sufficient to excuse taking the life of another. 22 C.J.S. Criminal Law § 44, p. 135. Legal recognition of duress as a defense to crimes other than homicide necessarily assumes a working hypothesis that a harm or crime of greater magnitude is avoided when the subjected person succumbs to the duress. This hypothesis disappears when duress is sought to be invoked as a defense in a homicide case. The instant record discloses that during the course of robbing a motel the owner, Mr. LacKamp, was shot and killed by Jackson. According to Jackson, one of his companions in the commission of the robbery, Tinsley, told him he would kill him if he didn’t kill LacKamp. This is not a case where one is coerced into the commission of a lesser felony and a homicide is committed by a companion during the perpetration of the lessor felony. As Jackson pulled the trigger that fired the fatal shot, his criminal responsibility does not turn on the agency of another. With the record impressed with these indelible facts, the focus of inquiry is restricted to whether duress was available to Jackson as a defense for shooting and killing Mr. LaeK-amp. This court concludes that the dictum in State v. St. Clair, supra, and sound logic effectively join forces to vitiate Jackson’s contention that the defense of duress was available. Having concluded that the defense of duress, as a matter of law, was unavailable, the trial court stands fully exonerated for refusing to grant Jackson an evidentiary hearing on his Rule 27.26 motion.

Judgment affirmed.

All concur.

      . Controlling and in effect at the time the offense in question was committed.

      . One of the felonies enumerated in Section 559.010, RSMo 1969.

      . Duress or coercion as a defense was spelled out as follows in State v. St. Clair, 262 S.W.2d 25, 27 (Mo.1953):
      “The appellate courts of this State seem not to have dealt with duress or coercion as a defense to an otherwise criminal act. At least, we have not been cited nor have we found any such case. However, the question has been considered with some frequency in other jurisdictions. Numerous cases are cited in Wharton’s Criminal Law, Vol. 1, § 384, p. 514. From these cases and others cited below it is established by the great weight of authority that although coercion does not excuse taking the life of an innocent person, yet it does excuse in all lesser crimes. Nall v. Commonwealth, 208 Ky. 700, 271 S.W. 1059; 15 Am.Jur., Criminal Law, § 318, p. 16. But, to constitute a defense to a criminal charge, the coercion must be present, imminent, and impending and of such a nature as to induce a well grounded apprehension of death or serious bodily injury if the act is not done. Threat of future injury is not enough. Nor can one who has a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily injury invoke the doctrine as an excuse, [citing cases].”


author: HENRY, Justice.

text:
    The ELECTRIC POWER BOARD OF the METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Appellant, v. Jayne Ann WOODS, as Commissioner of Revenue for the State of Tennessee, Appellee.
    Supreme Court of Tennessee.
    Dec. 5, 1977.

      David M. Pack, Pack & Price, Nashville, for appellant.
    David S. Weed, Asst. Atty. Gen., Nashville, for appellee.
   OPINION

HENRY, Justice.

This is a suit brought under § 67-2305, T.C.A., to recover disallowed vendors’ compensation, interest and penalties incurred by a taxpayer for delinquent payment of sales tax. Upon the dismissal of its complaint by the lower court, the taxpayer perfected an appeal to this Court.

Two basic issues are raised in this suit: (1) whether the taxpayer-appellant is liable for the penalties imposed and (2) if so, whether under the facts of this case the taxpayer is entitled to equitable relief from those penalties.

I.

Taxpayer-appellant is the Electric Power Board of the Metropolitan Government of Nashville and Davidson County, also known as the Nashville Electric Service or NES. Prior to 1971, NES remitted its sales tax liability directly to the Tennessee Department of Revenue each month. In late 1971, however, William D. Calgy, Senior Vice-President of Nashville City Bank and Trust Company, persuaded NES to change the manner of paying its sales tax from direct payment to the State to the alternative bank-depository method authorized by § 67-101(11), T.C.A.

Under the procedure followed by NES and the bank, NES sent its tax returns and checks, made payable to the Department of Revenue, for the amount of tax due, to the Nashville City Bank, an official depository of the State of Tennessee. Before 2:00 p.m. on the twentieth of each month (the date tax payments were due), a messenger from NES hand delivered the returns and checks to Mr. Calgy or his secretary, Evelyn Sesler. These two individuals were the only bank employees to whom the payments were to be given by NES.

After the remittance had been received, Mrs. Sesler would take it to the collection window and deposit it. Deposit slips, furnished to NES by the Department of Revenue, were completed by the bank in quadruplicate, one copy being sent to the Department of Revenue, while another copy was returned, usually by mail, to NES.

This method of remitting its sales tax liability had proven satisfactory until September 1975. Mr. Calgy had retired earlier that year, and the NES returns and checks were delivered to Mrs. Sesler alone. When the messenger brought in the August 1975 remittances on September 18, he was unable to find Mrs. Sesler. He looked for her briefly but asked no one as to her whereabouts. Assuming that Mrs. Sesler had merely stepped out of the office, the messenger left the envelope containing the returns and checks in the middle of Mrs. Sesler’s desk, as he had done on previous deliveries when she had not been in her office.

Unknown to the messenger and NES, however, Mrs. Sesler was on a two week vacation. Someone in the office, thinking that the envelope was Mrs. Sesler’s personal mail, placed it in the desk drawer. When Mrs. Sesler returned on October 1, she discovered the envelope, immediately informed her superiors of what had happened, and deposited the checks. The slips evidencing the deposit of the payments were not received by the Department of Revenue until October 2. NES was disallowed vendor’s compensation and assessed interest and penalties pursuant to §§ 67-3021 and 67-3026, T.C.A., for delinquent payment of sales taxes.

When its petition for waiver of penalty was denied by the Department, NES paid the assessment under protest and filed suit for the recovery of the amount paid. The Chancellor found that the tax had not been seasonably paid, that the bank was not acting as the agent of the State in this transaction, that the Department had properly assessed penalties and disallowed vendor’s compensation, and that NES was not entitled to equitable remission of penalties.

II.

Appellant asserts that it is not subject to penalties because the tax was seasonably paid and therefore no delinquency occurred. Coupled with this argument is the insistence that “lodging of the tax payment in an official depositary by the taxpayer is an actual and constructive payment of the tax to the [S]tate.” Appellant contends that the bank acted as the State’s agent, while the State argues that the bank acted as the agent of the depositor.

The pertinent statutory provision is found at § 67-101(11), T.C.A.:

The commissioner of revenue is hereby empowered to accept in payment of all taxes collected by the department of revenue, evidence satisfactory to him that the amount due for the tax has been deposited in a bank in the state of Tennessee, which has been approved by the state treasurer, to the credit of the state of Tennessee. Evidence of the deposit must be furnished the commissioner of revenue on or before the due date of the tax as established by law, and no taxpayer paying his taxes in such manner shall be relieved of any penalty for delinquency upon failure of such evidence to be seasonably furnished. (Emphasis supplied.)

The clear language of the statute requires that an actual deposit be made by the taxpayer, as well as that evidence of that deposit be furnished the commissioner before the date the tax is due. The messenger’s action in placing the envelope containing the tax returns and checks on Mrs. Sesler’s desk did not satisfy appellant’s obligation under this statute. This was a mere delivery whereas the statute requires an actual deposit, which was not made here until October 1 and evidence of which was not received by the Commissioner until October 2, several days after the due date.

We think it is of some significance that the deposit slip used under this alternate method for the payment of state taxes provides that “[i]n accepting deposits and reports of tax payers, the banks act as agents for the depositors and not as agents for the Department of Revenue.” This deposit slip is an official form prescribed by the State; and, as aforesaid, a copy goes to the taxpayer after each deposit. Therefore, the taxpayer is charged with knowledge of its contents.

Nor is the bank, as insisted by appellant, the agent of the State under the statute so that “lodging” payment with the bank operates as a constructive deposit. The statute clearly places the burden of seeing that the commissioner is furnished timely evidence of actual deposit upon the taxpayer. There is no indication that the bank-depository is to perform the taxpayer’s duty of depositing payments or providing seasonable evidence of deposit.

In Miller v. Insurance Co. of North America, 211 Tenn. 620, 625, 366 S.W.2d 909, 911 (1963), this Court defined an agent as:

‘One who undertakes to transact some business, or to manage some affair, for another, by the authority and on account of the latter, and to render an account of it.’

An agreement, contract or understanding between the parties that their acts are those of principal and agent is not necessary for an agency to exist. The existence of an agency is determined by the actual relationships and deeds of the parties. Smith v. Tennessee Coach Co., 183 Tenn. 676, 194 S.W.2d 867 (1946); Sawner v. M. P. Smith Construction Co., 526 S.W.2d 492 (Tenn.App.1975).

The duty under the statute was clearly the taxpayer’s. Under the procedure devised by Mr. Calgy and accepted by NES, the bank was entrusted with the performance of this duty. The bank made the actual deposits, completed deposit slips, and saw that they were sent to the Department of Revenue. An accounting was made to NES by mailing or delivering a receipt to the Power Board. While acting under § 67-101(11), the bank was the agent of the depositor.

Inasmuch as the bank is the agent of NES, not by virtue of any pronouncement made by the Department of Revenue, but by law, the statement printed on the deposit slips, providing that the bank acts as agent of the depositor not the state, is not an administrative rule and is not subject to the requirements of the Administrative Procedure Act. It is a mere recitation of the terms governing the deposit and is in the nature of a contract among the State, the Bank, and NES.

Because of its failure to comply with the provisions of § 67-101(11), T.C.A., appellant’s tax payment was delinquent. Under these circumstances, the taxpayer is not allowed dealer’s compensation. § 67-3021, T.C.A. In addition, in the case of a delinquency, interest plus a five per cent penalty is added to the amount of tax due. § 67-3026, T.C.A. The Chancellor did not err in holding that penalties were properly assessed against appellant.

III.

The next question for determination is whether this is a suitable case for equitable remission of the penalties.

The present case is analogous to that of Combustion Engineering Co. v. MacFarland, 209 Tenn. 75, 349 S.W.2d 138 (1961). In Combustion Engineering, this Court found that the failure to report was caused by “errors, oversights, improper coding of machines, and so on, of [taxpayer’s] various record keepers and accountants, whose duty it was to attend to this phase of the business.” Id. at 77, 349 S.W.2d at 139. Equitable relief was denied.

The appellant asserts that the representation made by Mr. Calgy, when he solicited the Power Board’s business for the bank, that giving the tax to the bank was the same as giving it to the State constitutes grounds for equitable relief. Mr. Calgy’s statements, however, cannot be said to be the proximate cause of the delinquency.

The delinquency in appellant’s case was attributable to the negligence and oversight of its employees and agents, combined with the negligence of the bank. Aware that the envelope he carried contained important tax returns and payments, appellant’s messenger simply placed the envelope upon Mrs. Sesler’s desk when she could not be found. He did not attempt to learn where Mrs. Sesler was or to inform anyone that he was leaving the tax returns in Mrs. Sesler’s absence. No one from NES ever ascertained if the bank had actually received the deposit.

The bank itself, as appellant’s agent, was guilty of oversights attributable to NES. See Combustion Engineering Co v. MacFarland, supra; Cities Service Co. v. Tidwell, 534 S.W.2d 298 (Tenn.1976). Although Mrs. Sesler knew that she alone was responsible for handling the NES tax returns and that she would be absent at that time of the month when the remittances were due, she made no effort to inform appellant of her absence or provide for someone else to assume her responsibilities while she was gone. The bank itself, although it realized the importance of these transactions, had never appointed a “cover” for Mrs. Sesler as it had for Mr. Calgy.

We cannot agree with appellant that “the problem in question simply arose over a chain of events which were not precipitated by any of the actors therein.” Equitable relief is not called for in this case.

IV.

Appellant makes one last argument, that the provisions of Chapter 106, Public Acts 1977, are applicable to this case and relieve the taxpayer of the assessed penalties.

Chapter 106, effective April 25, 1977, provides that the commissioner may waive a penalty if the “taxpayer has timely filed and paid such tax for a period of at least two (2) years next preceding the due date of the delinquent return and payment,” provided the taxpayer has not wil-fully disregarded the law or is not grossly negligent.

To do as appellant suggests would be to apply Chapter 106 retrospectively. In the absence of legislative intent or a necessary inference that a statute is to have retroactive force, an act of the legislature is to be given prospective effect only by the courts. Henderson v. Ford, 488 S.W.2d 720 (Tenn.1972). There is no indication that the legislature intended that Chapter 106 should be retroactive.

All of appellant’s assignments of error are overruled and the judgment of the lower court is

Affirmed.

COOPER, C. J., and FONES, BROCK and HARBISON, JJ., concurring.

      . Under the rationale of Benson v. United States Steel Corp., 225 Tenn. 164, 465 S.W.2d 124 (1971), and Tidwell v. Goodyear Tire & Rubber Co., 520 S.W.2d 721 (Tenn.1975), both of which involved the analogous situation of penalties assessed for tax deficiencies, appellant would not be entitled to relief. In the present case, the law was not unclear, unset-tied or misleading. The delinquency was not caused by reliance upon factual misrepresentations made by others nor upon misleading advice given by the Department or some other competent source.


author: BROCK, Justice.

text:
    Jayne Ann WOODS, Commissioner of Revenue, State of Tennessee, et al., Appellants, v. Earl PHILLIPS and Raymond Pennington, d/b/a Pennington & Jones Trucking Company, Appellee.
    Supreme Court of Tennessee.
    Dec. 5, 1977.

      David S. Weed, Asst. Atty. Gen., Nashville, for appellants; Brooks McLemore, Jr., Atty. Gen., Nashville, of counsel.
    George H. Buxton, Jr., Buxton, Lain & Buxton, Oak Ridge, for appellees.
   OPINION

BROCK, Justice.

This is a suit for the recovery of motor vehicle license taxes paid under protest. The Chancellor ordered a refund and the Commissioner of Revenue appealed.

The taxpayers are engaged in the business of hauling coal by means of trucks operated as private carriers under special zone licenses (“zone tags”) authorized by T.C.A., § 59-423(G) which entitled them to favorable tax rates. The State alleged that certain of the taxpayers’ trucks violated the maximum allowable gross weight limitation provided by T.C.A., § 59-1109, and, consequently, revoked their zone tag privileges and required re-registration of their trucks under the general licensing law. The State assessed and collected from the taxpayers the higher tax plus a 20% penalty set forth in T.C.A., § 59-514. The taxpayers sued for recovery of these additional sums, contending that Chapter 765 of the Public Acts of 1976 [codified as T.C.A., § 59-423(G)], the statute upon which the State’s action was based, was unconstitutional because it extended to private carriers a penalty which was formerly applicable only to public carriers and that this penalty provision was not referred to in the caption of the Act. Taxpayers thus argued that the Act violated Article II, Section 17 of the Tennessee Constitution. Taxpayers also insisted that the 20% penalty provision of T.C.A., § 59-514 was inapplicable to vehicles operating with zone tags.

The Chancellor held that the additional motor vehicle taxes assessed and the penalties imposed were not authorized by law, it being his opinion that Chapter 765 of the Public Acts of 1976 violated Article II, Section 17 of the Tennessee Constitution because the body of the Act was broader than its caption. Prom the decree of the Chancellor the Commissioner of Revenue has duly perfected an appeal to this Court.

I

Article II, Section 17 of the Tennessee Constitution is as follows:

“Bills may originate in either House; but may be amended, altered or rejected by the other. No bill shall become a law which embraces more than one subject, that subject to be expressed in the title. All acts which repeal, revive or amend former laws, shall recite in their caption, or otherwise, the title or substance of the law repealed, revived or amended.”

The caption of Chapter 765 of the Public Acts of 1976 is entitled:

“AN ACT to amend Tennessee Code Annotated, Section 59-423, relating to the registration of freight motor vehicles by extending the provisions concerning the issuance and use of special licenses based on zones of operation to private carriers.”

The code section referred to in the caption had its origin in Chapter 105 of the Public Acts of 1939. Since that time few legislative sessions have failed to enact at least one amendment to the original legislation requiring the registration and licensing of freight motor vehicles. Zone tags similar to those issued to plaintiff-taxpayers were first authorized by Chapter 324 of the Public Acts of 1969. Section 1 of Chapter 324 amended subsection A of T.C.A., § 59-423 (private carriers), and added the same provision for the issuance of zone tags to public carriers under the same terms and for the same fee. Section 2 went on, however, to include a penalty provision for violation of the territorial limitation placed on a special zone license or for violation of the maximum gross weight limitation set forth in T.C.A., § 59-1109(C). As further modified by subsequent amendments, Section 59-423 provided with respect to private carriers:

“. . . that freight motor vehicles with declared maximum gross weight, including vehicle and load, in excess of eighteen thousand (18,000) pounds, used and operated within the state of Tennessee exclusively for local hauling within a zone not greater than fifteen (15) air miles beyond the limits of any municipal corporation shall be required to pay a registration fee of three hundred and ten dollars ($310) in lieu of purchasing any other license required in subsection A hereof. Provided, that in counties having metropolitan government, the county line shall be the limit of operation of motor vehicles described in this paragraph.”

With respect to public carriers, T.C.A., § 59-423, provided:

“. . . that freight motor vehicles with declared maximum gross weight, including vehicle and load, in excess of eighteen thousand (18,000) pounds, used and operated within the state of Tennessee exclusively for local hauling with a zone not greater than fifteen (15) air miles beyond the limits of any municipal corporation shall be required to pay a registration fee of three hundred and ten dollars ($310) in lieu of purchasing any other license required in subsection B hereof. Provided, that in counties having metropolitan government, the county line shall be the limit of operation of motor vehicles described in this paragraph.
“Provided, further, any carrier whose truck operation is restricted to movements over the streets and highways of this state may apply to the commissioner for a county use license, the annual fee for which shall be four hundred dollars ($400). The carrier must upon application identify the truck and the base in the county in which it is to be registered under such special license and attest that the vehicle is to be operated exclusively in the base county and such other counties as may adjoin it. Movements from the base county to one adjoining are to be restricted to the delivery of freight to its final destination or place of consignment and for the purpose of bringing freight from its place of origin to any point in the base county.
“Finally, any licensee who violates either the territorial limitation placed on a license or the maximum allowable gross weight limitation provided by § 59-1109, subsection C, in addition to being liable for any other penalties under this title, shall also be denied the right to license such truck or its replacement under an exception to the general licensing law for a period of two (2) consecutive years following the year in which the violation occurs. The commissioner is hereby authorized to and empowered to promulgate rules and regulations for the administration of this section.”

In a recent opinion of this Court not designated for publication, McCall Trucking Co., Inc. v. Tidwell, the punitive provisions of T.C.A., § 59-423(B) were challenged by taxpayers whose trucks operated with zone tags as private carriers. The Commissioner of Revenue contended that the punitive provision provided in the last paragraph quoted above applied to private carriers as well as public carriers. The Court disagreed, holding that the above-quoted penalty did not apply to private carriers registered under the zone privileges allowed in T.C.A., § 59-423(A).

In 1976 the 89th General Assembly enacted Chapter 765, which amended T.C.A., § 59-423, by deleting all of the statutory language quoted above (the last paragraph of subsection A and the last three paragraphs of subsection B) and by adding a new subsection G as follows:

“G. Special Zone Licenses:
“Class 1. It shall be permissible for any owner or operator of a freight motor vehicle which is to be operated exclusively within a zone limited to the streets of a designated municipal corporation and to the highways for a distance not to exceed fifteen (15) air miles beyond the limits of said municipality, to apply for and be issued a special municipal zone license. In counties having a metropolitan form of government the county line shall be the limit for the operation of motor vehicles registered under this special license. The annual fee for this special license shall be three hundred and ten dollars ($310).
“Class 2. It shall be permissible for any owner or operator whose truck operation is restricted to movements over the streets and highways of this state having a freight motor vehicle which is to be operated exclusively in a given county, and the counties that adjoin it, to apply for and be issued a special county zone license. The owner must, upon application for this special license, declare the base county and attest that the vehicle is to be operated exclusively in the base county and such other counties as may adjoin it. Movements from the base county to one adjoining are restricted to the delivery of freight to its final destination, or to the place of consignment, or for the purpose of bringing freight from its place of origin to a point in the base county. The annual fee for this special license shall be four hundred dollars ($400).
“Any licensee whose truck is found to be in violation of either the territorial limitation placed on any special zone license provided for in this subsection or the maximum gross weight limitation provided for in § 59-1109 subsection C shall be required to immediately re-register it under an applicable general licensing provision and shall in addition, be denied the right to license the truck or its replacement under any exception to the general licensing law for a period of two (2) consecutive years following the year in which the violation occurs. The commissioner is authorized and empowered to promulgate rules for the administration of this subsection.”

The primary effect of Chapter 765, as enacted, was to erase the private carrier-public carrier distinction upheld in McCall, supra, thus subjecting private carriers to essentially the same penalties for violations of the territorial limitation or maximum gross weight limitation placed on vehicles operating with zone tags, viz., re-registration under the general licensing laws and denial of zone tags or any other exception to the general licensing law for two years, as were previously applicable to public carriers alone.

II

Taxpayers’ constitutional attack on Chapter 765 is based upon the contention that there is no reference in the caption to the penalty provision of the Act, the caption merely indicating amendment of T.C.A., § 59-423 “by extending the provisions concerning the issuance and use of special licenses based on zones of operation to private carriers.” (Emphasis added.) Mr. Justice Harbison, speaking for this Court in State ex rel. Blanton v. Durham, 526 S.W.2d 109, 111 (Tenn.1975), said:

“The history of Article 2, Section 17, of the Tennessee Constitution and the salutary purposes which it is designated to serve have been noted in a great number of previous decisions of this Court, and we do not believe it necessary to discuss them in detail here. Essentially, the constitutional provision requires that the title, or caption, of an act state the subject of the act, and that in the case of laws which repeal, revive or amend former laws, proper reference shall be made, in the caption or otherwise, to the title or substance of such former laws.
“Basically, the purposes of this constitutional provision was to prohibit so-called “omnibus bills” and bills containing hidden provisions of which legislators and other interested persons might not have appropriate or fair notice.” (Citing cases.)

Since this Court’s decision in Hays v. Federal Chemical Co., 151 Tenn. 109, 268 S.W. 883 (1925), our law has recognized a distinction between the titles of amending acts which merely indicate that the original act is to be amended generally and titles which specify with particularity the amendment to be made. As summarized in Tennessee Electric Power Co. v. City of Chattanooga, 172 Tenn. 505, 517, 114 S.W.2d 441, 445 (1937):

“A statute reciting the title or substance of a former law and expressly purporting to amend same need not indicate the particular and specific character of the amendment, if the amendment is germane to and embraced in the subject expressed in the original act (citing cases). However, where the title of the amendatory act recites the title of the act to be amended and also specifies the amendments to be made, the legislation is thereby limited to the amendment specified and anything in the body of the act outside of these is void.”

By reciting that T.C.A., § 59-423 is amended “by extending the provisions concerning the issuance and use of special licenses based on zones of operation to private carriers,” Chapter 765, of the Public Acts of 1976, unquestionably specifies the amendment to be made to Section 59-423 of the Code. Omitted from the caption, although included in the body of the Act, is the means by which the limitation on the privilege to operate vehicles with less expensive zone tags is to be enforced.

Omission from the title of an act of the means or instrumentalities for accomplishing the purposes of that Act is, however, a generally recognized exception to the requirement found in many state constitutions that the subject of an act must be expressed in its title. See 73 Am.Jur.2d Statutes § 119 (1974). Interpreting Article II, Section 17 of the Tennessee Constitution, this Court stated in State v. Brown, 103 Tenn. 449, 456, 53 S.W. 727, 728-29 (1899):

“It was not essential that the title be made an index or epitome of the Act, nor that it should set forth the modes, means, or instrumentalities provided in the Act for its administration and enforcement.”

See also Williams v. Mabry, 176 Tenn. 343, 141 S.W.2d 481 (1940); Tenn. Elec. Power Co. v. Mayor and Aldermen of Fayetteville, 173 Tenn. 111, 114 S.W.2d 811 (1938); Southern Photo and Blue Print Co. v. Gore, 173 Tenn. 69, 114 S.W.2d 796 (1938); Lamb v. Whitaker, 171 Tenn. 485, 105 S.W.2d 105 (1937); Texas Co. v. Fort, 168 Tenn. 679, 80 S.W.2d 658 (1935); Hunter v. Conner, 152 Tenn. 258, 277 S.W. 71 (1926); Petty v. Phoenix Cotton Oil Co., 150 Tenn. 292, 264 S.W. 353 (1924); Couch v. State, 140 Tenn. 156, 203 S.W. 831 (1918); Riggins v. Tyler, 134 Tenn. 577, 184 S.W. 860 (1916); Palmer v. Southern Exp. Co., 129 Tenn. 116, 165 S.W. 236 (1914).

While most of the above-cited cases consider the constitutional requirements of Article II, Section 17 as they relate to general titles, Texas Co. v. Fort, supra, involved a constitutional attack upon the caption of an act that specified the amendments to be made to the State’s gasoline tax laws. The caption of the amendatory act read:

“AN ACT to amend Sections 1126 * * of the Code of Tennessee, 1932; said sections of the Code relating to the Gasoline Tax Laws, providing for an improved method of assessing and collecting said gasoline taxes and to strengthen the enforcement of said laws . . . .”

Taxpayers insisted that the language of the caption was restrictive and should not be construed to refer to “storing” of gasoline, which they alleged was a new and independent subject of taxation. The Court disagreed, reasoning that the title of the amendment to the cited Code section gave notice of a purpose to change and improve the method of assessing, imposing and levying state gasoline taxes so as to strengthen the enforcement of the law set forth in the Code section cited. “Having called attention to the particular form of privilege taxation to be dealt with,” stated the Court, “it was necessary only to indicate the object aimed at by the amendment.” Texas Co., supra, 80 S.W.2d at 660. Rejecting the taxpayer’s constitutional attack, the Court declared: .

“The title discloses the result aimed at; the method is for the body of the act. The ‘subject’ only is called for in the title, not the story; the purpose to do a certain thing, not just how it is to be done.” Id.

Similarly, we reject taxpayers’ challenge to Chapter 765 of the Public Acts of 1976 and hold that regardless of the form of the caption, general or specific, Article II, Section 17 of the Tennessee Constitution is satisfied when the constituent means embraced in the body of the act have a proper relation to the subject expressed in the caption or tend to accomplish the purpose indicated by the caption. Whatever means or instrumentalities are necessary or usual and proper for effectuating the purpose of an act may be provided therein.

Where, as in the instant case, a legislative amendment provides an exception to the general licensing laws and the caption of the amendatory act reflects the purpose of that act, the specific means chosen to effect the legislative purpose need not be set forth in the caption, although provided for in the body of the act.

We are not unmindful of our recent holding in Farris v. State, 535 S.W.2d 608 (Tenn.1976). The holding in Farris does not conflict with Texas Co. v. Fort, nor does it compel a contrary conclusion in the present case. In Farris the caption spoke only of an amendment “relative to verdict and sentence in felony conviction,” whereas the body of the act required that the trial judge charge the jury on parole considerations, a matter that the Farris majority felt not to be germane to the subject of the amended or the amendatory act. In Texas Co. v. Fort, the amended acts measured the gasoline tax by the amount stored, whereas, the amendatory act based it upon the amount withdrawn from storage. Accordingly, the Court, in Texas Co. v. Fort, held that “[t]he title discloses the result aimed at; the method is for the body of the act.” A wholly different situation was presented in Farris.

Accordingly, we hold that Chapter 765 of the Public Acts of 1976 is constitutional as enacted.

Ill

In addition, taxpayers challenge the State’s imposition of the 20% penalty provided by T.C.A., § 59-514, for violation of the gross weight limitation set forth in T.C.A., § 59-1109(C). They insist that the 20% penalty is not applicable to freight motor vehicles operating with zone tags. The Chancellor upheld taxpayers’ position. We agree.

Our comparison of T.C.A., § 59-423(G), the statute authorizing zone tags, with T.C.A., § 59 — 414, convinces us that the legislature did not intend that the 20% penalty of § 59-514 should apply to overweight freight motor vehicles operating with special zone licenses authorized by T.C.A., § 59 — 423(G). In our opinion, the re-registration requirement and two year prohibition against special licensing provided by § 59 — 423(G) was intended to be the exclusive penalty for such licensees. Those sanctions are in direct conflict with the provision of § 59-514 that violators of the gross weight limitation:

“. . . shall be compelled to register such motor vehicle in the class within which its then weight shall fall, which registration shall be taken for a period of one (1) year, or such lesser period as the vehicle may have been operated in a manner subject to registration in this state

Any doubt as to the applicability of a penalty must, according to the well-established principle of construction, be resolved in favor of the taxpayer. See Union & Planters Bank & Trust Co. v. Fort, 170 Tenn. 285, 95 S.W.2d 39 (1936).

Accordingly, the cause is remanded to the Chancery Court for modification of the decree in accordance with the views stated in this opinion. The judgment in favor of Phillips is reduced by $1,700.25 to the sum of $339.00. The judgment in favor of Pennington is reduced by $1,133.00 to the sum of $226.00.

Costs to be divided equally between appellant and appellees.

COOPER, C. J., and FONES, HENRY and HARBISON, JJ., concur.

      . Chapter 301, Public Acts of 1971; Chapter Acts of 1974. 97, Public Acts of 1973; Chapter 747, Public