author: PEDEN, Justice.

text:
    CITY OF HITCHCOCK, Texas, et al., Appellants, v. Warren T. LONGMIRE, Jr., M.D., et al., Appellees.
    No. 17196.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Sept. 28, 1978.
    Rehearing Denied Oct. 19, 1978.

      Barker, Lain, Schwab, Tullock & Blair, Elmo Schwab, Andrew Allen, Galveston, for appellants.
    Zack H. Byrns, McConnico, Gregg & Ken-namer, Dick H. Gregg, Jr., Robert M. Collie, City Atty., Charles M. Williams, Houston, for appellees.
   PEDEN, Justice.

The City of Hitchcock, a home rule city, appeals from a summary judgment in a municipal annexation case. Warren T. Longmire, Jr., and others brought this suit against the City, the four members of its city commission, and the city secretary (officially and individually) for a declaratory judgment to determine the validity of annexation Ordinance No. 308, for an injunction to prevent the City from exercising governmental control over the newly-annexed area, and for a writ of mandamus requiring the defendants to hold an election under the plaintiffs’ referendum petition or to repeal the annexation ordinance. The trial court granted, successively, a temporary restraining order, a temporary injunction, and plaintiffs’ motion for summary judgment. The summary judgment permanently enjoined the defendants from exercising governmental control over the annexed territory (approximately 3.5 square miles) except for conducting municipal elections until the annexation ordinance is repealed or a referendum election is conducted. The court also ordered issuance of a writ of mandamus directing the defendants to repeal the annexation ordinance or to call, conduct, and canvass a referendum election. The validity of Ordinance No. 308 was not in issue before the trial court. Appellants’ six points of error allege that the trial court erred:

(1) In ordering a referendum election on an annexation ordinance;
(2) In ordering the repeal of an annexation ordinance;
(3) In granting a summary judgment because the evidence raised issues of fact;
(4) In overruling appellants’ plea in abatement;
(5) In granting a summary judgment to parties without proper standing; and
(6) In granting summary judgment on improper evidence.

Notice of a public hearing on the proposed annexation was published and the hearing was held prior to the first reading of Ordinance No. 308 on November 11,1977. The ordinance was published in a local newspaper again on November 16 and was passed on second reading on December 16. Plaintiffs presented a referendum petition to the city secretary on January 9, but on January 23, she refused to certify its sufficiency, and plaintiffs then brought this suit.

These provisions from Article XIII of the charter for the City of Hitchcock state the basis for the referendum and the proper procedure to be followed:

Sec. 2. POWER OP REFERENDUM: The people of the City shall have the power to approve or reject in a referendum election any legislation which has been enacted by the Council and which would be subject to the initiative process, excepting that an ordinance authorizing the issuance of tax or revenue bonds which have been approved by the voters in an election duly held for that purpose shall not be subjected to such referendum.
Sec. 3. REQUIREMENTS OF PETITION FOR INITIATIVE OR REFERENDUM: Petitions . . for a referendum on legislation which has been enacted by the City Commission shall be signed by qualified voters of the City equal in number to at least twenty-five (25%) percent of all the qualified voters in the City . . . [t]he petition for a referendum shall contain at least the full descriptive caption of the ordinance on which a referendum is asked and the date of its enactment by the Council. No signature to a petition shall be counted unless it is followed by the street address of the signer, is the same as the name of a voter appearing on the official current poll list, and has been personally signed by such voter. At the end of the petition there shall be a verification made by the person who has circulated the petition, sworn to before a Notary Public, that each signature appearing is the genuine signature of the person whose name purports to be signed to the petition, and was made in the presence of the person so verifying.
A petition . . . for a referendum may consist of a number of separate petitions, which shall be counted together to determine the number of voters who have signed the petition, but each separate petition shall in that case fulfill all the requirements as to form and verification. SEC. 4. TIME FOR FILING PETITIONS: ... A petition for a referendum on legislation which has been enacted by the City Commission may be filed prior to or within thirty (30) days after the effective date thereof asking that such legislation either be repealed or submitted to the vote of the people. When such a petition has been received and is certified to be sufficient by the City Secretary the legislation concerned shall not go into effect, or its operation shall be suspended, until and unless it is approved by the voters in an election as herein provided.
SEC. 5. PROCEDURE AFTER A PETITION IS RECEIVED: The petition . . for a referendum shall be filed with the City Secretary who shall within twenty (20) days thereafter determine whether the petition is sufficient in form and has been signed by the requisite number of qualified voters. If the petition is insufficient in form or signatures the City Secretary shall notify the person who has filed the petition of the reason therefor, and an additional period of ten (10) days shall be allowed within which to file an amendment which will correct the deficiency.

A basic issue presented by appellants is whether citizens of a home rule city can repeal an annexation ordinance by referendum.

We noted in Hancock v. Rouse, 437 S.W .2d 1 (1969, writ ref’d n.r.e.):

“In Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645 (1952) the court held:
i* * * respondents being otherwise entitled to have the initiative election called and held, cannot be defeated in that right by the refusal of petitioners to perform purely ministerial duties on the ground that in their opinion the ordinance would be invalid if adopted. * * * But to entitle respondents to a writ of mandamus on the ground that they have a legal right to have the election called and held and that petitioners are under a legal duty to order and to hold it, it is not enough that the subject matter of the proposed ordinance be legislative in character but it must also appear that the subject matter of the ordinance has not been withdrawn from the field in which the initiatory process is operative.’
The Supreme Court recognized that the power of initiative and referendum is ‘the exercise by the people of a power reserved to them, and not the exercise of a right granted,’ and that such a reservation of power in a city charter ‘should be liberally construed in favor of the power reserved.’ But the court then said:
‘Even so, the field in which the initiatory process is operative is not unlimited. * * * Accordingly, city charters frequently expressly limit the right of initiative to legislative matters. But even though a charter contains no such express limitation * * * the limitation is usually read into the charter by the court. * * * The field where the initiatory process is operative may also be limited by general law. Article XI, Section 5 of our Constitution provides that no city charter shall contain any provision inconsistent with the general laws of this state. * * ⅝ Again, the field may be limited by the city charter itself. Other provisions of the charter may withdraw from the people the power under the initiative provisions to deal with a particular subject. The limitation by the general law or by the charter of the field in which the initiatory process is operative may be either an express limitation or one arising by implication. Such a limitation will not be implied, however, unless the provisions of the general law or of the charter are clear and compelling to that end.
⅜ ⅜ ⅜ * ⅜ *
‘In all the Texas cases called to our attention in which it has been held that the people of a municipality could not validly exercise a delegated legislative power through initiative proceedings, it will be found that authority to act was expressly conferred upon the municipal governing body exclusively, or there was some preliminary duty such as the holding of hearings, etc., impossible of performance by the people in an initiative proceeding, by statute or charter made a prerequisite to the exercise of the legislative power. Into this class fall the eases of McCutcheon v. Wozencraft, 116 Tex. 440, 294 S.W. 1105; Southwestern Telegraph & Telephone Co. v. City of Dallas, 104 Tex. 114, 134 S.W. 321; Lindsley v. Dallas Consolidated St. Ry. Co., Tex.Civ.App., 200 S.W. 207; Dallas Ry. Co. v. Geller, 114 Tex. 484, 271 S.W. 1106; Denman v. Quin, Tex.Civ.App., 116 S.W.2d 783 (writ ref’d.).”’

A case illustrating the rule that general laws may limit the field where initiative and referendum are operative is City of San Antonio v. State ex rel. Criner, 270 S.W.2d 460 (Tex.Civ.App.1954, writ ref’d.). In that case the City of San Antonio was not permitted to detach 65 square miles of improved territory because the ordinance it passed was not in compliance with Article 1266, V.T.C.S., a statute then providing for the detachment of unimproved areas in cities of 150,000 or more. Although Article 1266 was stated in the positive: i. e., under certain circumstances a city may discontinue such unimproved territory as a part of the city, the court stated that to meet the problems encountered by cities “the Legislature enacts various laws which it deems appropriate to cities of a given size. Article 1266 is one of these laws. It applies to the four largest cities in Texas and provides that they may not detach territory unless it exceeds three acres in size and is unimproved.” (emphasis added). The court then pointed out that general law cities could detach under Article 973 if there are at least 10 acres which were uninhabited as defined in such statute. Apparently the Criner holding is based on a conclusion that the field of disannexation of territory by municipalities has been limited by general law. Under Article 1266 as amended, the territory now subject to being discontinued by a city is limited to that which is unimproved or is non-taxable to the city. It is not applicable to our case.

Similarly, the provisions of Article 974, which are expressly noticed in the City Charter of Hitchcock, do not apply to the facts in this case. Article 974 permits certain qualified inhabitants of territories adjoining the city to vote to join the city and to then ask the city council to pass an ordinance receiving them as part of the city.

The general laws of Texas which may limit the field where initiative and referendum are operative are Article 970a, the Texas Municipal Annexation Act, and Article 1175, which enumerates the general powers of home rule cities.

The provisions of Article 1175 concerning the powers of home rule cities to annex or disannex territory are in Section 2 of that statute:

The power to fix boundary limits of said city, to provide for the extension of said boundary limits and the annexation of additional territory lying adjacent to said city, to provide for the disannexation of territory within such city . . . according to such rules as may be provided by said charter not inconsistent with the procedural rules prescribed by the Municipal Annexation Act.

Article 970a, the Municipal Annexation Act, contains comprehensive provisions for the annexation and disannexation of territory by both home rule and general law cities. Sec. 6 of the Act specifically requires that before any city may institute annexation proceedings, it must provide within specified time limits public hearings and notice of such hearings.

In Hancock v. Rouse, supra, the plaintiffs sought mandamus to require the Bellaire City Council to submit to election a zoning ordinance proposed by an initiative petition and four zoning ordinances previously enacted. It was noted that the statutes governing power of Texas cities to zone, Article 1011a-1011j, V.T.C.S., had been adopted and made part of the Bellaire City Charter and that they require notice and a public hearing before zoning regulations may be adopted or amended. The provisions of the general law requiring notice and hearing cannot be complied with if the ordinance is submitted to an election. For a hearing to be meaningful, it necessarily must be held before the body authorized to act in the matter. A zoning ordinance enacted by the city council without the notice and hearing required by statute would be invalid, and the power of the people to legislate directly is subject to the same limitations. We held that since notice and hearing are clearly required by the Charter and by the general laws of the State as a prerequisite to the enactment of zoning ordinances, and since notice and hearing have no place in the process of legislating through initiative and referendum, the power of the people of Bellaire to legislate directly does not extend to the subject of zoning. 437 S.W.2d at p. 4.

In the recent zoning case of San Pedro North, Ltd. v. City of San Antonio, 562 5.W.2d 260 (Tex.Civ.App.1978, writ ref’d n.r.e.), notice and hearing requirements of the general laws of the State concerning zoning were noted. The court held that to give effect to the referendum election in that zoning case, “assuming that the result of the election was not a repeal of the zoning ordinance previously passed by the municipal legislative body, would be to add a procedural step to zoning which is not required by the comprehensive provisions of the Enabling Act. A city can no more add a step to the procedures required by state law than it can omit one.”

We consider our case to be anala-gous to the San Pedro North case; the adding of a referendum would be the adding of a procedural step not required by the comprehensive provisions of the Municipal Annexation Act.

Since the annexed territory becomes a part of the city on the enactment of the annexation ordinance, the repeal of such ordinance by referendum might be viewed as a means of disannexation.

The methods of disannexing territory are specific and limited. The general law, set out in Section 10 of the Municipal Annexation Act, provides procedural rules for disannexing a validly annexed area. If the annexing city fails to provide equivalent city services to the annexed area within three years of the effective date of annexation, a majority of the qualified voters residing in the annexed area and the owners of 50% or more of the land in such area may petition the governing body of the city for disannexation. Prior to the circulation of the petition, notice of it must be posted in three places and published in a newspaper of general circulation in the annexed area. If, after the proper procedure is followed, the governing body fails or refuses to disan-nex, anyone signing the petition may file suit in district court and upon the proper proof may obtain an order disannexing the area. This appeal is directly to the courts, not to the elective process; the disannexation procedure is quasi-judicial rather than legislative.

The appellees have not sought to use the only specific means for discontinuance of territory provided by the Hitchcock City Charter, Article I, Section 5. It applies when there exists within the corporate limits any territory not suitable or necessary for city purposes; if it is inhabited, it can be disannexed by ordinance passed by the city Commission after the Commission has received a petition signed by a majority of the qualified voters in the territory to be disannexed.

There can be no right or power existing in the people of a city to adopt an ordinance through the initiative process if the power to adopt it is not lodged in the city council in the first instance. Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645, 651 (1951). Under Articles 970a and 1175(2), the governing body of the city does not have the right to repeal an annexation ordinance or to adopt a disannexation ordinance without following the specific procedural requirements established in Art. 970a; a popular referendum would be subject to the same limitation.

Having sustained the appellant’s first two points of error, we do not reach its others.

The judgment of the trial court is reversed, the injunction is dissolved, and judgment is rendered that the plaintiffs take nothing.


source: Caselaw Access Project

author: YOUNG, Justice.

license: Public Domain

text:
    Eduardo VELA, Appellant, v. STATE of Texas, Appellee. In re Enedina GARZA.
    No. 1398.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 12, 1978.

      William J. Quackenbush, Pena, McDonald, Prestía & Zipp, Edinburg, for appellant.
    William Anderson, Ewers, Toothaker, Ewers, Abbott, Talbot, Hamilton & Jarvis, McAllen, for appellee.
   OPINION

YOUNG, Justice.

This is an appeal from an election contest and quo warranto proceeding which were consolidated for trial. On April 1,1978, the City of Hidalgo, Texas conducted a general election for the office of Mayor. The votes were canvassed and Eduardo Vela, the incumbent, was declared the winner by a one vote margin over Enedina Garza. On April 28, 1978, Ms. Garza filed an election contest in the District Court of Hidalgo County, and served Vela with notice. Vela, as con-testee, did not file a bond under Tex.Election Code Ann. art. 9.09 (1967) within 20 days of notice.

But, on May 19, 1978, Ms. Garza, as contestant, did file a bond as provided for in Article 9.10 and the District Clerk certified these facts to the Governor’s Office pursuant to Article 9.11. The Governor, then on May 23, 1978, issued a commission appointing Ms. Garza to the office of Mayor.

Vela has refused to relinquish the office of Mayor. As a result, on May 31,1978, Ms. Garza and the District Attorney filed a quo warranto action to remove Vela from office. Whereupon the election contest and quo warranto proceedings were consolidated for trial.

Trial was to the court without a jury on July 6, 1978. There the parties stipulated, and the court agreed, that the April 1,1978, election was void in that it was impossible to ascertain the true results of the election. As to the quo warranto proceeding, the court held that Ms. Garza was entitled to hold the office of Mayor until a new election is held on December 2,1978, or at such other time in January of 1979, as is provided by law. Vela appeals. We affirm.

Appellant brings forward six points of error. Points 4, 5 and 6 challenge the constitutionality of Articles 9.09 through 9.12. Appellant also contended in his oral argument before us and in his reply brief that he received a defective notice of the election contest. We need not consider these points and defective notice allegation, though, because the record shows no pleading or presentation of these defenses to the trial court. These contentions may not be raised for the first time on appeal. Rule 373, T.R.C.P., City of Kingsville v. International Ass’n, Etc., 568 S.W.2d 397, (Tex.Civ.App.—Corpus Christi 1978, no writ). We will therefore consider only appellant's remaining points 1, 2 and 3.

Appellant’s point 1, in substance, contends that the trial court erred in granting the Mayor’s office to the appellee because the appellee never received a majority of the votes cast at any election. In support of his argument, appellant cites Wood v. State, 133 Tex. 110, 126 S.W.2d 4 (1939), and other cases, which state that one may not be seated as an elected official until it appears that he has received a majority of the legal votes cast at an election. We hold that this rule does not control the present case.

Municipalities are political subdivisions of the State, and as such, are subject to the Constitution and general laws of the State. State ex rel. Burnet Cty. v. Burnet County Hosp. Auth., 495 S.W.2d 300 (Tex.Civ.App.—Austin 1973, writ ref’d n. r. e.); 39 Tex.Jur.2d Rev., Municipal Corporations § 112 (1976). In this regard, the Legislature enacted an election code which controls the manner in which municipal as well as other elections are conducted. The Legislature’s intention to govern all elections is manifested by Article 1.01 of the Election Code which provides, in part:

“. . . the provisions of this Code shall apply to all elections and primaries held in this State, except as otherwise provided herein.”

Articles 9.01 through 9.38 set out the provisions for contesting elections. Article 9.01 states:

“the district court shall have original and exclusive jurisdiction of all contests of elections, general or special, for all . municipal, . . . offices, . . . ” (Emphasis supplied).

Article 9.09 provides in pertinent part:

“Whenever the validity of any election for an .officer other than the Members of the Legislature is contested, the contestee shall, within twenty (20) days after the service of said notice and statement of such contest upon him, file with the clerk of the court in which such contest is pending a bond with two (2) or more good and sufficient sureties, payable to the contestant, to be approved by said clerk, in an amount to be fixed by said clerk, and not less than double the probable amount of salary or fees or both, as the case may be, to be realized from the office being contested for a period of two (2) years; . . . ” (Emphasis supplied).

Article 9.10 then provides:

“If the contestee fails to file the bond as required in the preceding Section [art. 9.09], and within the time therein prescribed, said clerk shall notify the contestant immediately of such failure; and such contestant shall have the right within ten (10) days after such notice, to file a like bond payable to the contestee, . . ”

Further, Article 9.11 provides:

“Immediately upon the filing of said bond by the contestant, the clerk shall certify in writing, and under his official seal, to the Governor, that the contestee failed to give the required bond, and that the contestant has given such bond in accordance with law.”

Finally, Article 9.12 provides:

“Upon receiving such certificate from the clerk, the Governor shall issue a commission to the said contestant for the office in controversy pending such contest; and thereupon the contestant, upon qualifying in said office as required by law, shall exercise all the rights and powers and perform all the duties of said office for the full term thereof unless it shall otherwise be determined and ordered by the court upon the trial of such contest.”

The above language manifests a clear legislative intent that the bonding requirements should apply to all contested elections, not specifically exempted, involving officers for which there is an ascertainable salary or fees upon which the clerk can base a bond. Compare Gonzalez v. Garcia, 352 S.W.2d 913 (Tex.Civ.App.—San Antonio 1961, no writ). We find no exemption in Article 9.09 for municipal elections. Moreover, Article 9.09 expressly excepts Legislative contests from its provisions. This exception discloses a legislative intent that there should be no exception other than that expressly provided. State v. Richards, 157 Tex. 166, 301 S.W.2d 597 (1957). Accordingly, we hold that the provisions of 9.09 through 9.12 apply to the municipal election contest herein.

The appellant argues on the other hand, that the Governor’s commission, in effect, declared the appellee to be an elected official. If this were so, it would be contrary to the general rule set forth in Wood v. State, supra. The Governor’s commission, however, merely authorizes the contestant who properly posts the statutory bond to hold the position for its full term unless the district court orders a change upon trial of 'the contest. The commission does not declare that the contestant who posts bond is an elected official.

Appellant also contends that the trial court’s judgment which set aside the April 1, 1978, election effectively negated both appellant’s certificate of election and appellee’s commission from the Governor. This is not the case though. While we would agree that the judgment negated the effect of appellant’s certificate of election, Article 9.12 states that the contestant securing the Governor’s commission may perform the duties of said office for the full term thereof unless it shall otherwise be determined and ordered by the court upon the trial of the contest. The court’s order herein allows the Governor’s commission to remain in force until a new election is held on December 2,1978, or in January of 1979. Appellant’s first point of error is overruled.

Appellant’s point 2 contends that Article 9.09 does not apply to this case because the salary and fees of Mayor are nominal and offset by legitimate expenses. Appellant also asserts that the Governor’s commission should not issue when a fact issue exists as to the net fees of office and there is no hearing in regard thereto.

As to the first contention, we observe that the argument is based upon the assumption that the facts show that the salary of Mayor is indeed nominal and offset by the expenses of office. We note, however, that findings of fact and conclusions of law were neither requested nor filed in this case. Appellant did bring forward a statement of facts and therefore it must be presumed upon appeal that the trial judge found every fact necessary to sustain the judgment, provided such fact is raised by the pleadings and is supported by the evidence. Further, in considering the sufficiency of the evidence in support of presumed findings, we must construe the evidence in the light most favorable to the judgment and disregard all evidence to the contrary and indulge every legitimate conclusion which tends to uphold the judgment. Texas Constructions Associates, Inc. v. Balli, 558 S.W.2d 513, 517 (Tex.Civ.App.—Corpus Christi 1977, no writ). In this connection, we must presume the trial judge found that the salary and fees of the Mayor’s office herein were not nominal and offset by legitimate expenses. Guided by the above presumptions, we find support in the evidence for this presumed conclusion and overrule appellant’s first contention.

In regard to the latter contention that a commission should not issue when a fact issue exists as to the net fees of office and no hearing is held in that connection we find no evidence in the record that this argument was presented to the trial judge in the court below. It may not be brought up for the first time on appeal. Appellant’s second point is overruled.

Appellant’s third point contends the ap-pellee’s commission is void because the Governor has no authority to issue a commission to a municipal office seeker. Appellant bases his argument upon the language of Articles 9.06 and 8.45 of the Election Code.

Article 9.06 provides:

“If the contest be for the validity of an election for any State office, except the offices provided for in Section 155 [art. 9.27], or for any district office, except Members of the Legislature, or for any county office, a copy of the notice and statement of the contestant and of the reply thereto of the contestee served on the parties shall be filed with the clerk of the court having jurisdiction of the case.”

Appellant argues that because Article 9.06 makes no provision that a party to a municipal election contest must file the notice, statement and reply in the district court, that the bonding requirements of Articles 9.09 through 9.12 do not apply to a municipal election contest.

We do not agree with this logic for several reasons. First, it is clear that under Article 9.01 that the district court has original and exclusive jurisdiction of all municipal election contests. Second, Article 9.06 is entitled “Where to file papers”. The provision is primarily intended to direct parties where to file their papers rather than setting forth any notion of what types of election contests are covered by the bonding requirements of Articles 9.09 through 9.12. Though Article 9.06 does not mention municipal election contests, it does not specifically exclude municipal contestants from also filing their papers in the district court, and it would be contrary to the district courts’ exclusive jurisdiction of municipal election contests to so provide. Finally, it should be noted that Article 9.15 of the Election Code empowers the district court to declare an election void on the trial of any contest provided for in Article 9.06. While 9.06 makes no mention of municipal election contests, Article 9.15 has not only been treated as a possible basis for voiding municipal elections, but was actually cited by the appellant as the basis upon which the April 1,1978 election herein was voided. See, for example, Gottlieb v. Hofheinz, 523 S.W.2d 7 (Tex.Civ.App.—Houston [1st Dist.] 1975, writ dism’d); Diaz v. Valadez, 520 S.W.2d 458 (Tex.Civ.App.—Corpus Christi 1975, no writ); Oser v. Cullen, 435 S.W.2d 896, 900 (Tex.Civ.App.—Houston [1st Dist.] 1968, writ dism’d). In sum, Article 9.06 does not preclude application of Articles 9.09 through 9.12 to the instant case.

Article 8.45 of the Election Code provides:

“The Governor shall commission all officers except Governor, members of Congress, electors for President and Vice-President, of the United States, members of the Legislature and municipal officers.

Appellant cites Article 8.45 to show that the Governor has no authority to issue a commission to any municipal officer, and thus, Articles 9.09 through 9.12 cannot apply to a Mayor’s election. Appellant cites Gonzalez v. Garcia, supra, to support this contention. Gonzalez is distinguishable, though, in that the court there, in deciding that Articles 9.09 through 9.12 did not apply to a school trustee election contest, primarily relied upon the fact that the office of school trustee did not carry any salary or fees upon which to base an Article 9.09 bond. Appellant emphasizes, however, that the court also indicated that the Governor did not have the authority to issue a commission to a school trustee in an election contest, presumably relying upon Article 8.45 of the Election Code. While we agree that the Governor does not have the authority to issue a commission to a municipal officer in the normal election situation under Article 8.45, the Legislature has provided that in exceptional circumstances, i. e., election contests, the Governor shall have authority to issue a commission to a contestant who posts bond pursuant to Articles 9.09 through 9.12. Accordingly, we find that the Governor’s commission is valid, and we overrule appellant’s third point of error.

The judgment of the trial court is affirmed.

Because of the emergency arising from the approach of the date for a new election, the parties are hereby denied the right to file a motion for rehearing. See Bray v. Peden, 213 S.W.2d 469 (Tex.Civ.App.—Fort Worth 1948, no writ).

      . All statutory references are to Tex.Election Code Ann. unless otherwise noted.


author: STEPHENSON, Justice.

text:
    Steve KELLER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Feb. 21, 1978.
    As Modified April 11, 1978.
    Terrence R. Fitzgerald, Deputy Public Defender, Daniel T. Goyette, Associate Director, Jefferson District Public Defender, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., J. Gerald Henry, Asst. Atty. Gen., Frankfort, for ap-pellee.
   STEPHENSON, Justice.

Steve Keller was convicted for armed robbery, KRS 433.140, (committed in 1974, before the enactment of the Penal Code) and sentenced to life imprisonment in the penitentiary.

Keller and Tommy Howard were indicted in 1974 for the armed robbery of a service station, the Bonded Oil Company. Keller entered a plea of guilty pursuant to an agreement that the Commonwealth would recommend a ten-year sentence and that he take a lie detector test. According to the agreement, if the results of the test demonstrated that Keller was innocent of the charge, the plea of guilty would be set aside and the charges would be dismissed. The results of the test showed that Keller was not telling the truth when he denied a role in the armed robbery, and he was sentenced to ten years in the penitentiary.

In 1975, Keller filed a motion to vacate the judgment. The substance of the motion was that one William Butler, a fellow inmate of the prison, was the perpetrator of the armed robbery and was willing to testify to that fact and, further, would testify that Keller was not involved in the crime. Subsequently, Butler testified in a hearing that he and Howard committed the armed robbery and that Keller was innocent. The judgment of conviction was vacated. In March 1977, Keller and Howard were put on trial for the charge of armed robbery, resulting in Keller’s conviction. The jury could not agree as to Howard.

The manager of the Bonded Oil Company and an employee both identified Keller as the person who pointed a pistol at them and robbed them inside the service station. Howard was identified by one of the witnesses as the driver of the automobile in which Keller fled the scene.

Keller did not testify in his own behalf, but introduced Butler who testified that he robbed the manager and employee of the Bonded Oil Company and described the circumstances of the robbery substantially the same as described by the manager and employee of the service station. He testified that Keller was not present and did not commit the armed robbery.

On cross-examination Butler testified that upon hearing from Keller the charge on which he was imprisoned he informed Keller that he was the one who had committed the armed robbery. Butler further testified that, “He [Keller] said he would help me get out and get me some money and help me get a lawyer to get me out,” if Butler would testify for him at trial. Although they talked to each other regularly, Butler denied that he and Keller discussed the details of the armed robbery while in prison.

On direct-examination, Keller established that Butler had been convicted of a felony with the usual admonition by the trial court. Cotton v. Commonwealth, Ky., 454 S.W.2d 698 (1970). The Commonwealth was permitted by the trial court to prove on cross-examination that Butler was in prison for armed robbery. At the same time the Commonwealth received permission to show the length of sentence being served by Butler, Keller requested and received permission to show the date Butler would be eligible for parole. The Commonwealth recalled an employee of the service station, who testified that Butler was not the person who committed the robbery.

After the case was argued, the instructions directed that upon a finding of guilty the jury was to impose a sentence of “ten years or life.” Five minutes after the jury retired to deliberate, the trial court recalled the jury and corrected the penalty provision of the instructions verbally by informing the jury that the instructions were amended to say “not less than 10 years or life,” and this correction was inserted in writing in the instructions. The jury then retired to deliberate with proper instructions and returned a verdict of guilty, fixing the punishment at life imprisonment.

Keller asserts as error the ruling of the trial court that permitted the Commonwealth to show that Butler was serving a life sentence and further asserts that he was then compelled to show the date Butler would become eligible for parole, which Keller asserts created a substantial risk of improper penalty assessment and thereby denied Keller a fair trial.

Prior to the cross-examination of Butler by the Commonwealth, this colloquy took place out of the hearing of the jury:

“MR. STREPEY (the prosecutor): May we approach the Bench?
[Whereupon the following proceedings were had at the Bench in whispered tones.]
“MR. STREPEY: I’m going to advise the Court and Co-counsel for impeachment purposes I intended to ask, one, specifically what he is in Eddyville for; and I expect the answer to be armed robbery. And two, I’m going to ask him the length of the sentence which is a life sentence.
“I think that goes to the motive for him coming to testify. And since he’s not a defendant on trial, I believe I’m entitled to ask him that question.
“COURT: I think you are. Is that all?
“MR. FRITZ (appellant’s [Keller’s] counsel): To avoid misleading the jury on the life sentence, there has been previous testimony indicating that his first eligibility for parole being 1981, means indeed his knowledge complicity would not — he has nothing to lose. He has plenty to lose because his parole date could be moved back. So I’m suggesting to the Court that if we allow him the testimony concerning his length of present sentence he is serving, that the jury should be allowed to understand that he will have a certain date eligibility for parole.
“COURT: Frankly, on the last point, if you all agree on this there’s no problem.
“MR. TURNER (co-defendant’s [Howard’s] counsel): I didn’t hear it.
“COURT: Mr. Strepey is asking the Court’s permission to ask the Defendant’s term of his sentence.
“Mr. Fritz is asking that if that be done the Defendant should be allowed to testify as to his parole date.
“Now, if that can be done without objection
“MR. TURNER: I have a couple of questions I want to ask first.
“COURT: He is asking about the life sentence to establish a motive.
“MR. TURNER: I have no objection to that.”

Then, during the course of the cross-examination, Butler was asked:

“BY MR. STREPEY:
“Q Mr. Butler, you were previously asked if you had been convicted of a felony and you answered yes. Would you tell us what that felony is?
“A Armed robbery.
“Q And what type of sentence are you serving?
“A Double life.
“Q This question is by agreement of all counsel and is on the record. When will you first become eligible for parole?
“A 1981.”

Keller attempts to counter the argument of the Commonwealth that there was no objection to this line of questioning by arguing that he had no opportunity to object. It is clear from the proceedings at the bench that Keller had an opportunity to object and did not do so, thus not preserving the question for review. Nevertheless, we feel the question deserves some discussion.

As a general proposition, we are of the opinion that it is well settled that a witness may be cross-examined on any facts which tend to show bias, interest, or motive which might affect the credibility of the testimony of the witness. This is so for the reason that the jury is entitled to hear all the relevant facts calculated to influence a witness so as to enable the jury to properly estimate the weight to be given the testimony of the witness.

We have no hesitancy in saying that had Butler been serving a sentence of life without parole or had been under sentence of death, then it would be a relevant showing that Butler has “nothing to lose,” or more properly that this fact could be taken into account by the jury in evaluating the credibility of Butler’s testimony in that such evidence would tend to show the testimony would be less reliable than similar testimony from a witness not in such circumstances.

As we see it, this testimony as to the length of Butler’s prison sentence should not have been admitted for the reason that it precipitated the testimony as to eligibility for parole. We have held that the procedural rule of evidence that permits proof of a felony conviction for the purpose of impeachment (CR 43.07; RCr 13.04) does not permit the showing of the length of sentence for the reason that for the purpose of the rule of evidence such a showing is prejudicial. Cowan v. Commonwealth, Ky., 407 S.W.2d 695 (1966). For this purpose, as demonstrated by the limiting admonition given by the trial court, the length of sentence is not relevant.

But for the fact that the parole system exists, we can see how serving a life sentence would tend to influence a jury to believe that Butler had nothing to lose by perjury or by the risk of conviction of the crime.

It is a fact, however, that many prisoners are paroled and serve only a nominal portion of the sentence of imprisonment. This leads us to the relevancy of proof of eligibility for parole. We do not find a case in this jurisdiction or any other that has approved testimony showing the date of eligibility for parole. The rules and regulations of the parole board and the factors taken into account by the parole board for release on parole, including the conduct of the prisoner, are not before the jury and as a practical matter cannot be. For this reason, we are of the opinion that this testimony also should have been excluded from the jury. Interestingly enough, the Commonwealth did not develop on cross-examination the reason for the introduction of the evidence on cross-examination to establish motive for Butler’s testimony. We do not see that this motive would be self-evident to the jury. We can see a bemused jury hearing that Butler was serving a double life sentence for armed robbery and he would be eligible for parole in 1981, having no idea how it was to consider the evidence other than the brief references to such evidence in both closing arguments.

In the circumstances of this case, we are of the further opinion that the evidence of eligibility for parole cancelled out the evidence of length of sentence and that Keller was not unfairly prejudiced.

The prejudicial and relevant evidence developed on cross-examination touching on Butler’s credibility was the agreement between Butler and Keller and the further admission by Butler that he told the Commonwealth’s attorney the day before that he did not intend to testify in the trial at all because he had not been paid any money.

As to the assertion of error in the correction of the instructions by the trial court, we see nothing in the record to demonstrate that the jury did not fully understand the correction, particularly in view of the fact that only five minutes elapsed between the time the jury was sent to the jury room and was recalled for the purpose of correcting the instructions.

The judgment is affirmed.

All concur.


author: PER CURIAM.

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. James S. SANDIDGE, Respondent.
    Supreme Court of Kentucky.
    Sept. 19, 1978.

      Leslie G. Whitmer, Director, Kentucky Bar Ass’n, Frankfort, for complainant.
    James S. Sandidge, Owensboro, for respondent.
   PER CURIAM.

This is a disciplinary proceeding against James S. Sandidge, a licensed attorney of the Kentucky Bar who began his active practice in Kentucky prior to 1973. An indictment was filed against him in the United States District Court for the Western District of Kentucky, at Owensboro, charging him with five counts of making false oaths, in violation of Section 152, Title 18, USC, and twelve counts of knowingly and fraudulently appropriating to his own use property belonging to another, in violation of Section 153, Title 18, USC. On February 16, 1978, the United States nolle prosed eight of said charges, and the respondent entered a plea of guilty to the remaining nine charges. He was sentenced to serve five years on each of the nine charges; each of said sentences was ordered to be served concurrently, for a total sentence of five years.

On March 3,1978, pursuant to SCR 3.165, a petition for the temporary suspension of respondent from the practice of law in Kentucky was duly filed by the Inquiry Tribunal of the Kentucky Bar Association. On March 6,1978, an order was entered by this court temporarily suspending respondent from the practice of law from the date of the order. On May 9; 1978, the Inquiry Tribunal filed a writing with the director of the association charging that the said conduct of the respondent constituted unethical and unprofessional conduct calculated to bring the bench and bar of Kentucky into disrepute. The Board of Governors of the association filed its decision with the clerk of this court on August 16, 1978, recommending that the respondent be disbarred. In due time these proceedings came before this court. Respondent was charged with having embezzled in excess of $96,000. In Kentucky Bar Association v. Vincent, Ky., 537 S.W.2d 171 (1976), this court held that the conviction of an attorney for the wrongful use of a client’s money in and of itself constituted unethical and unprofessional conduct calculated to bring the bench and bar into disrepute.

The respondent was given due and timely notice of all proceedings and, although having been so notified, he has filed no response but has remained mute before this court. We have not been shown any extenuating circumstances which would justify this court to consider respondent’s conduct anything less than unprofessional and unethical and calculated to being the bench and bar of Kentucky into disrepute.

The order of temporary suspension dated March 6, 1978, was issued for good cause. The decision of the Board of Governors of the Kentucky Bar Association unanimously recommending that respondent be disbarred should be and it is approved.

The respondent, James S. Sandidge, is disbarred from the practice of law in this Commonwealth, and ordered to pay the costs incurred in this proceeding as directed by SCR 3.450. The respondent shall comply with the provision of SCR 3.390.

All concur except PALMORE, C. J., who did not sit.


author: HOWARD, Judge. WILHOIT, Judge,

text:
    MONTGOMERY WARD LIFE INSURANCE CO., Appellant, v. Glenna Mae ROBBINS, Appellee.
    Court of Appeals of Kentucky.
    Jan. 6, 1978.
    William A. Watson, Middlesboro, for appellant.
    J. C. Helton, Gerald L. Greene, Helton & Greene, Pineville, for appellee.
    Before HAYES, HOWARD and WIL-HOIT, JJ.
   HOWARD, Judge.

This is an appeal from the Bell Circuit Court wherein a jury trial was had and the jury awarded plaintiff-appellee, Glenna Mae Robbins, the proceeds of a life insurance policy issued on the life of her deceased husband by defendant-appellant, Montgomery Ward Life Insurance Company.

The issue on this appeal concerns the refusal of the trial court to direct a verdict on the issue of suicide in favor of defendant-appellant.

Plaintiff-appellee, Glenna Mae Robbins (hereinafter referred to as Mrs. Robbins) sued to recover from defendant-appellant, Montgomery Ward Life Insurance Company (hereinafter referred to as the Insurance Company), on a policy of insurance which contained an exclusion clause which reads in part as follows:

The policy does not cover any loss caused by or resulting from:
1. Intentionally self inflicted injury or suicide, while sane or insane; .

There were no eyewitnesses to the shooting. Mrs. Robbins testified that on September 23, 1974, she was in the barn near her home when she heard a shot from the direction of the house. She went to the house when her children screamed, and found her husband on the floor in the children’s bedroom. The decedent died of a wound in the right temple which had been inflicted by a .20 gauge shotgun fired at close range. He was clad only in his undershorts.

Mrs. Robbins testified that the reason her husband might have gotten his gun was to shoot over the heads of stray dogs. She testified that her husband had a chronic ear disorder which caused dizziness and fainting spells. Her husband had fractured his left arm a few months prior to his death during one of the dizzy spells. The arm was still causing the decedent pain and he suffered from a partial loss of movement. Mrs. Robbins testified that her husband was an expert with guns, always kept his guns loaded, and that this gun was equipped with a “hair” trigger.

The decedent received a total disability pension from the Veterans Administration, based on a psychoneurosis dating from World War II. The decedent’s family physician, who had treated him since 1949, stated that the decedent suffered from emotional problems. The doctor stated that the decedent suffered from chronic severe depression and that he had been prescribed antidepressants. Mrs. Robbins stated that her husband had not taken his medicine that day, to her knowledge.

Another doctor, who had treated the decedent the day before his death, testified that the decedent seemed to be very agitated. This doctor testified also that the decedent was taking an above average dosage of medication. He also testified that failure to take the medication could make a person become more depressed.

Mrs. Robbins also relies on the facts that the decedent left no suicide note; that the gun still contained two shells which could have injured her two children had the hair trigger been pulled; and that the decedent had a $1200 per month tax free income with no financial worries. These facts lend credence to the presumption against suicide, but prove nothing.

If, when all the evidence on both sides has been heard, reasonable men may differ on the conclusion to be drawn', the question should be one for the jury; otherwise, the clear conclusion is a matter of law, one way or another. Lee v. Tucker, Ky., 365 S.W.2d 849 (1963).

In Commonwealth Life Insurance Company v. Hall, Ky., 517 S.W.2d 488 (1974), the court makes this statement on page 494 concerning the presumption against suicide:

. In other words, if without the presumption the evidence upon the whole ease, with all the inferences that may reasonably be drawn from it, affords no substantial basis for concluding the death was accidental, but does provide a basis upon which the jury could reasonably find that it was a suicide, the jury cannot be permitted to find it was accidental.

In the present case, the decedent had a gun shot wound in his right temple. There is medical testimony to the effect that he suffered from chronic depression. There is no testimony that he had recently been having dizzy spells. Rather some months previously he had suffered a dizzy spell and broken his left arm. A doctor, who had attended the decedent the day before his death, testified that the decedent seemed agitated. This must be contrasted with the theory presented by Mrs. Robbins that her husband was shooting at stray dogs; suffered a dizzy spell; and accidentally shot himself.

We feel that the jury should not have been allowed to find that the decedent’s death was accidental. We reverse and remand this case to the trial court with directions to enter a judgment n. o. v. for the Insurance Company.

HAYES, J., concurs.

WILHOIT, J., dissents.

WILHOIT, Judge,

dissenting.

I respectfully dissent from the majority opinion in this case. It seems clear to me that the evidence here would support a verdict of accidental death aside from the presumption against suicide. If that is true, then under the rule laid down in Commonwealth Life Insurance Co. v. Hall, cited by the majority, there is a question for the jury.

In addition to the evidence discussed in the majority opinion there was also evidence that at the time the decedent was shot stray dogs were “after the coon dogs.” Further there was evidence that he was a very meticulous man, planning in detail every undertaking, but he left no suicide note. He was shot while in his children’s bedroom and not his own which he had left to get the gun. Taking all of the facts in this case, they do indeed, as the majority states, “lend credence to the presumption against suicide,” which I take to mean that the facts are supportive of a claim of accidental death. What these facts may or may not provide is up to the jury and it decided that the death was not a suicide. The judgment of the trial court should be affirmed.


author: SEILER, Judge.

text:
    UNION ELECTRIC COMPANY et al., Plaintiffs-Appellants, v. Earl A. TOULOUSE, Tax Collector of Jefferson County, Missouri, Defendant-Respondent, v. CRYSTAL CITY SCHOOL DISTRICT et al., Intervenors-Respondents, v. JEFFERSON JUNIOR COLLEGE DISTRICT, Intervenor-Respondent.
    No. 59848.
    Supreme Court of Missouri, En Banc.
    July 24, 1978.
    Rehearing Denied Sept. 28, 1978.

      Francis X. Duda, St. Louis, George E. Murray, Creve Coeur, Donald E. Ransom, James M. Bridge, Lawrence J. Bannes, William H. Ferrell, St. Louis, Walter S. Drusch, Cape Girardeau, for plaintiffs-appellants.
    Robert C. Jones and Robert Hickel, Clayton, for defendant-respondent.
    Harold A. Tzinberg, Clayton, for interve-nor-appellant.
   SEILER, Judge.

This is a consolidated appeal of six separate tax recovery cases tried in the Jefferson County circuit court. The trial court rendered a single monetary judgment in favor of the plaintiffs for an amount which was less than the total prayed for and all plaintiffs appealed. The action lies within our exclusive appellate jurisdiction because it involves the construction of § 137.073, a revenue law of this state. Mo.Const., Art. V, § 3.

I.

The taxpayers — three regulated utility companies, Union Electric Company, Lac-lede Gas Company and Southwestern Bell Telephone Company — and three railroads, Missouri Pacific Railroad Company, Missouri-Illinois Railroad Company and St. Louis-San Francisco Railway Company, each filed suit against the county collector to recover 1973 school taxes paid under protest pursuant to § 139.031. The cases were consolidated for trial under an agreed statement of facts with additional evidence taken on a motion for rehearing.

Intervenors-respondents are most of the school districts in or partly in Jefferson County.

The final assessed value of personal property in Jefferson County for the year 1972 was $27,935,295 and for the year 1973 was $31,929,405, an increase of 14.30 percent.

Section 137.073 provides that:

“Whenever the assessed valuation of real or personal property within the county has been increased by ten per cent or more over the prior year’s valuation, either by an order of the state tax commission or by other action, and such increase is made after the rate of levy has been determined and levied by the county court, city council, school board, township board or other bodies legally authorized to make levies, and certified to the county clerk, then such taxing authorities shall immediately revise and lower the rates of levy to the extent necessary to produce from all taxable property substantially the same amount of taxes as previously estimated to be produced by the original levy. Where the taxing authority is a school district it shall only be required hereby to revise and lower the rates of levy to the extent necessary to produce from all taxable property substantially the same amount of taxes as previously estimated to be produced by the original levy, plus such additional amounts as may be necessary approximately to offset said district’s reduction in the apportionment of state school moneys due to its increased valuation. The lower rate of levy shall then be recerti-fied to the county clerk and extended upon the tax books for the current year. The term ‘rate of levy’ as used herein shall include not only those rates the taxing authorities shall be authorized to levy without a vote, but also those rates which have been or may be authorized by elections for additional or special purposes. No levy for public schools or libraries shall be reduced below a point that would entitle them to participate in state funds.”

None of the above school districts revised their original levies to comply with § 137.-073. Applying the original levies for the school districts against the 1973 valuations produced taxes of $9,163,417 or $669,554 more than the original estimate of $8,493,-863.

After the case was submitted by stipulation to the trial court for a decision, the school districts filed a motion to amend their respective answers to allege that § 137.073 violated Art. 10, § 3 of the Missouri Constitution of 1945 and was, therefore, unconstitutional.

Thereafter, the trial court entered judgment in favor of the taxpayers for $252,-501.22 (which was the amount claimed) together with any interest earned on these funds to be distributed in the amounts prayed for in the respective petitions. The judgment was also against the school districts on the issue of unconstitutionality.

In due course, the school districts filed a motion to amend the judgment or, in the alternative, for a new trial. The motion was granted by the trial judge on the sole issue whether the refund ordered by the court should be decreased to the extent of any reduction in state aid.

On this issue, § 137.073 provides in pertinent part:

“Where the taxing authority is a school district it shall only be required hereby to revise and lower the rates of levy to the extent necessary to produce from all taxable property the same amounts of taxes as previously estimated to be produced by the original levy, plus such additional amounts as may be necessary approximately to offset said district’s reduction in the apportionment of state school moneys due to its increased valuation.”

At the rehearing, testimony was introduced over taxpayers’ combined objections to the effect that each school district suffered a reduction in apportionment of state school money due to the increase in assessed value in the district for 1973. A method of calculating the revised rates of levy to recover this reduction in the apportionment of state aid was also presented.

Thereafter, the trial court adopted the formula presented by the school districts on the state aid issue, recertified the school districts’ local rates, and decreased the amount of the first judgment by $54,893.07, this being the additional amount necessary to offset the districts’ reduction in the apportionment of state school monies brought about by the increase in the valuation of property in the districts for 1973.

Since the school districts did not appeal the second judgment, it is conceded for purposes of this appeal that the taxing authorities (single-county and multi-county school districts) were in fact required to revise and lower their respective rates of levy as a result of an increase in the assessed valuation of personal property in Jefferson County, Missouri by 10 percent or more from 1972 to 1973 (§ 137.073). The constitutional claims have also been abandoned.

This appeal, therefore, involves a determination of the proper formula which should have been used to calculate each of the revised levies for the school districts and whether any adjustment was required as a result of a loss or reduction in state aid due to increased valuation.

II.

Appellants’ first contention is that where § 137.073 provides that school districts may include “such additional amounts as may be necessary approximately to offset said district’s reduction in the apportionment of state school moneys due to its increased valuation”, that “state school moneys” contemplate only supplemental state aid under § 163.031. Because the parties specifically stipulated that none of the school district’s rates would be reduced below the rate required for additional (or supplemental) state aid ($3.50), the appellants conclude that the provision of § 137.-073 relied upon by the trial court and the school districts is inapplicable. They support this contention by reliance upon Missouri Pacific Railroad Co. v. Kuehle, 482 S.W.2d 505 (Mo.1972), a ease in which an “issue concerned] . . . the loss in supplemental state aid which would result if plaintiffs’ rates were used.” Id. at 507.

This reliance by appellants is misplaced. Kuehle was concerned with the meaning of the last sentence of § 137.073 which provides that “[n]o levy for public schools or libraries shall be reduced below a point that would entitle them to participate in state funds.” The defendant-intervenor (county tax collector and school district) in Kuehle argued that “state funds” meant supplemental state aid under § 163.031, which required a minimum tax rate of $3.50 per $100.00 assessed valuation for school district qualification, and that therefore an adjusted tax under § 137.073 could not be less than $3.50. The court disagreed, determining that the earlier sentence of § 137.073, which is before us in the instant case, “obviously contemplates possible reductions in supplemental state aid and provides a means to compensate for the reduction.” Id. at 508. In stating that § 137.073 “obviously contemplates possible reductions in supplemental state aid” the court did not say that the statute contemplated only such reductions. Rather, it is equally obvious on its face that § 137.073 contemplates possible reductions in any state aid caused by the new assessment, and provides a means of recoupment for that loss of aid. This was the determination of St. Louis-Southwestern Railway v. Cooper, 496 S.W.2d 836, 841 (Mo.1973), a judgment which we reiterate today. Section 137.073 serves, in part, as a legislated scheme for the recoupment by a school district of the loss of state aid which an increase of the assessed valuation of its taxable property may occasion. It is not, in this respect, exclusively concerned with a particular state aid program (supplemental state aid) the creation of which, in 1969, it antedated by fourteen years. Laws of Mo. 1955, pp. 835-36; Laws of Mo.1969, p. 270.

III.

Appellant’s next contention is that the basis for the trial court’s conclusion that $54,893.07 of the amounts paid under protest was due the school districts to compensate for a loss in state aid for 1973 was “opinion testimony, hearsay and unauthenticated unofficial documents”, and that even if the evidence in question were admissible, the loss in state aid claimed by the school district could not have occurred until 1974 whereas their appeal deals with a 1973 tax protest, and, furthermore, say appellants, the schools could have increased their 1974-75 budgets to recoup the loss.

Appellants are overlooking certain facts peculiar to school districts, their operation, and their financing. The schools operate on a fiscal year, commencing July 1, § 160.041, while taxes on real and personal property are assessed and levied on a calendar year basis, so there is an overlap between the two. The school district budget for the ensuing year must be adopted not later than June 30, § 67.030. Schools obtain part of their money from local taxes which are generally not paid until near the close of the calendar year and do not become delinquent until January 1. §§ 140.010 and 140.-730. Distribution of state school aid, whether basic or supplemental, is based on an application for state aid, which the school district must file not later than June 30, § 163.081, from which the amount of state aid is calculated. §§ 163.031, 165.111. State aid is paid in four installments — September 15, December 15, March 15 and May 15. §§ 163.081-163.082, RSMo Supp.1975.

Appellants also overlook the fact that whenever there is an increase in valuation, there will be a loss to the school district in basic state aid. This comes about by virtue of paragraph 2 of § 163.031, prescribing deductions which are to be made from the minimum guarantee for each district. One such deduction required is an amount derived from a tax of $1.25 for each $100.00 of the completed assessed valuation of the property in the district for the preceding year equalized to 30 percent. Reduced to its simplest form, if we let L stand for the loss in aid and I stand for the increased valuation of personal property between 1972 and 1973, equalized to 30 percent, the formula would be:

Thus, the greater the assessed valuation, the larger the deduction. Section 137.073, as previously said, permits the school board, in lowering the rate of levy, to include such additional amounts as may be necessary approximately to offset the district’s reduction in the apportionment of state school moneys due to its increased valuation. What this means in practice is that instead of lowering the local rate to produce substantially what would have been produced from local taxation at the original rate, the school board is permitted to use a rate which will produce the original amount plus “such additional amounts” necessary to make up from local taxes the amount it is losing in state aid. The result thus brought about by the statute is that more is collected locally and less collected from the state. But this does not mean there is thereby any windfall for the school district.

An expert witness, Dr. Henry, whose qualifications are discussed later herein, worked out and presented to the court the amount of reduction in state aid for each of the districts resulting from the increased valuation, what the total amount needed would be for each district to produce substantially the same amount of taxes as previously estimated plus the additional amounts needed to offset the reduction in state aid, and what the revised rate would be to do so. The trial court adopted these calculations and ordered the tax rates for 1973 recertified accordingly.

The approach urged by the appellants— that the school district should somehow delay in recoupment or that there really is no loss to the school district — is not that contemplated by the statute, by which it is understood that there is a loss in state aid and that it is to be added to the amount of taxes which would have been produced from the original tax rate. A new tax rate that would produce essentially the same sum is then determined and applied. See Missouri Pacific Railroad Co. v. Kuehle, 482 S.W.2d at 508. Under appellants’ approach, the relief provided by § 137.073 would be illusory, because by the time application for the 1974-75 school year was due it would be too late to make up the loss by adjusting the 1973 levy. The 1973 taxes would long since have been levied and paid and there would be no way to turn the clock back. If the language of § 137.073 reading “plus such additional amounts as may be necessary approximately to offset said district’s reduction in the apportionment of state moneys due to its increased valuation” is to have any practical meaning or application for the school district, it must be read to provide for recoupment in the year of the increased valuation of whatever reduction in state aid does later occur. Since the 1973 increased valuation figure would not be used in the deduction formula until the June 30, 1974 application, and since the revised levy is to be made “immediately”, and the new lower rate is to be “extended upon the tax books for the current year”, it follows that the school district must make the recoupment from 1973 levy. That is what the trial court required to be done here.

The appellants’ suggestion that the school' district wait until the 1974-75 school year and then increase the 1974 levy enough to make up the loss in state aid brought about by the increased valuation in 1973, is unacceptable in light of § 137.073, requiring, as it does, that the levy be adjusted in the year when the 10 per cent or more increase in valuation occurs. The legislature may well have considered it more equitable and realistic for whatever adjustments were required to be accomplished in one revised levy, rather than lowering the levy one year and raising it the next.

In addition, the school district is under stringent limitations as to maximum levy rates for school taxes. Mo. Const. Art. X, § 11(b) and (c). It is possible that the school district would need the full extent of its authorized levy in the 1974-75 school year to meet its operating and incidental expenses with no room left to raise the levy the additional amount required to make up the loss in state aid brought about by the 1973 increase in valuation.

Appellants’ contentions, if sustained, would destroy the school district’s statutory right of recoupment of the amount of state aid lost by the occasion of an increase in the assessed valuation of taxable property. Such a result would violate the clear legislative intendment of § 137.073, which we are neither inclined nor entitled to disturb. We overrule the contention.

Returning to the appellant’s objection that the basis for the trial court’s decision was opinion testimony, etc.: The opinion testimony referred to above came at the rehearing from the person of Dr. Ray Henry, who qualified as an expert in school finances, including matters of state aid and determination of rates of levy by local school districts. It does not take much delving into the subject of the school laws, local taxes, and the means by which school boards obtain their operating funds to realize the subject is one where expert testimony can be appropriate and helpful. “The chief value of expert evidence lies in the fact that the witness possesses superior knowledge of the subject under consideration . . . ‘[T]he subject must be . one of which observation and experience have given the opportunity and means of knowledge which exists in reason rather than descriptive facts, and, hence cannot be intelligently communicated to others not familiar with the subject so as to possess themselves of a full understanding of it.’ ” De Donato v. Wells, 328 Mo. 448, 41 S.W.2d 184, 187 (1931).

Dr. Henry had for six years been president of Jefferson Junior College, of Hills-boro, and for fourteen years prior thereto had been superintendent of schools in Missouri school districts, first at Gideon and then at Farmington. This work necessarily entailed knowledge and experience on his part in the preparation of school budgets and estimates, applications for state aid, and determination of tax rates. In addition, Dr. Henry had taught courses in school finance and had worked with the legislature on school appropriation matters and in revision and clarification of the school statutes.

The data and material with which Dr. Henry worked preparing the exhibits and on which he based his various conclusions and opinions are all to be found or fairly implied from the facts in the record. We hold the trial court properly overruled the objections to Dr. Henry’s testimony.

Judgment affirmed.

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

SIMEONE, J., not participating because not a member of the court when cause was submitted.

      . All citations are to RSMo 1969, unless otherwise indicated.

      . Jefferson Junior College District intervened, but did not appeal the judgment ordering a refund of all the protested tax levied by it so we make no further reference to that part of the case.

      . To illustrate, take the DeSoto No. 73 School District, for example. It has territory in Jefferson, St. Francois and Ste. Genevieve counties. The total assessed valuation in 1972 was $12,-426,989.00; the total assessed valuation for 1973 was $13,152,374.00; the total increase in assessed valuation from 1972 to 1973 was $725,385.00. In calculating state aid under § 163.031, it is necessary that the assessed valuation be “equalized to thirty per cent.” The ratio of assessment established by the state tax commission for the year 1973 for Jefferson County was 30.16, for St. Francois County, 30.09, and for Ste. Genevieve County, 30.00.
      To equalize the assessed valuation to thirty percent, the increased assessment must be multiplied by thirty and divided by the ratio established by the state tax commission. In the example for DeSoto No. 73 School District, the assessed valuation for 1973 when thus equalized to thirty percent amounts to $721,537.00.
      Section 163.031 provides that “[f]rom the minimum guarantee for each district there shall be deducted the amount derived from a tax of one dollar and twenty-five cents for each one hundred dollars of the completed assessed valuation of the property . . . Thus, to determine the loss in state aid which would result to the DeSoto No. 73 School District from the increase in assessed valuation in the year 1973, the assessed valuation equalized to thirty percent, $721,537.00, must be divided by one hundred dollars and then multiplied by a dollar and a quarter. These calculations produce a figure of $9,019.00, which is the amount of the reduction in state aid for the DeSoto No. 73 School District as a result of the increased valuation in 1973.
      Under § 137.073 this amount of loss in state aid must be added to the amount of taxes previously estimated to be produced by the original levy. The tax estimated to be produced by the original levy for the DeSoto No. 73 School District was $614,296.00, which, when added to the reduction in state aid, gives a total of $623,315.00. In order to determine the rate necessary to produce this $623,315.00 to which the DeSoto No. 73 School District is entitled, we must divide by the 1973 assessed valuation of $13,152,374.00, and then multiply the quotient by $100.00. This calculation produced an adjusted tax rate for the DeSoto No. 73 School District for the year 1973 of $4.74 per one hundred dollars assessed valuation.


author: RENDLEN, Judge.

text:
    Richard L. LAIBEN, Doris A. Laiben, J. Frank Laiben and Rita J. Laiben, Appellants v. DEPARTMENT OF REVENUE of the State of Missouri, A. Gerald Reiss, Director of Revenue, and J. Neil Neilson, Commissioner of Administration for the State of Missouri, Respondents.
    No. 60273.
    Supreme Court of Missouri, En Banc.
    Oct. 10, 1978.
    Victor Tell Neff, Barry, Neff & Gallaher, Jefferson City, for appellants.
    John D. Ashcroft, Atty. Gen., Bruce E. Anderson, Asst. Atty. Gen., Jefferson City, for respondents.
   RENDLEN, Judge.

This appeal, involving construction and validity of a real estate lease, turns on two questions: (1) whether the lease provided for an initial term of six or eighteen months; (2) if for eighteen months, whether the execution of a lease for a term of more than one year was beyond the constitutional powers of State agents to contract and thus void.

The trial court held that the lease provided for an initial term of only six months and that defendants, having given the prescribed notice to terminate, were authorized to vacate the premises without liability for further payment of rents. We affirm.

The cause was submitted on a stipulation of the parties which included the following facts pertinent to the issues: On December 11, 1972, the owners of a building in the City of St. Louis entered into a lease with the Missouri Department of Revenue (Department) for office space, providing for what is described as an “initial term” of six months beginning January 1 and ending June 30, 1973. More than sixty days prior to June 30,1973, lessee notified lessor of its intention to terminate at the conclusion of the term and pursuant to that notice, vacated the premises. After June 30, 1973, the Department secured other offices in the St. Louis metropolitan area for the operation of its business formerly conducted on plaintiffs’ premises and it is conceded that the General Assembly appropriated adequate funds for the rental and leasing of properties for the operations of the Department during fiscal 1973-74. Meanwhile the lessors diligently, but without success, sought to obtain other lessees for the vacated premises during the period July 1, 1973 to June 30, 1974, and it is for the rents from this period they now make claim.

While the lease contains fourteen paragraphs, the controverted provisions are found in five paragraphs, which we have numbered for convenient reference in the order they appear in the lease:

[2]
The Lessor leases unto the said Lessee the following described premises located at Suite 100-4401 Hampton Ave. (63109) State of Missouri, to wit: first floor (street grade entry level) professional office suite including existing teller cages and lobby counters containing approximately 6311 square feet on the South side of the main entrance lobby and a supplemental 1184 square feet on the lower level having direct private stair access from the first floor. Said suite has two private office rooms, two records vault areas and restroom facilities on the first (ground) floor and one record vault and private office area constructed in the lower level with access to general restroom and stair areas. Existing carpeting in the first (ground) floor to be cleaned and divided partition wall to be erected (at Lessor expense) behind teller cages to provide private general office area on the west side of premises. (Underscoring in the original.)
[3]
To have and to hold said premises with their appurtenances for the initial term of this Lease which shall be for a period of 6 months, beginning Jan. 1st 1973 and ending June 30th. 1973 for the monthly rental of Two Thousand Five Hundred Dollars, payable on the last day of each month during the said term. (Underscoring, except for the phrase “initial term of this Lease,” appears in the original.)
[4]
To have and to hold said premises with their appurtenances for the yearly term beginning July 1st. 1973 and ending June 30th. 1974 for a yearly rental of Thirty Thousand Dollars ($30,0001, payable at the rate of Two Thousand Five Hundred Dollars, per month on the last day of each month during the said term.* The premises contain approximately 7495 square feet. (Underscoring in the original.)
[5]
The Lessor hereby grants to the Lessee the option to renew this Lease for Five (5) successive one year periods, on the same rental terms and conditions provided herein. If the Lessee remains in the said premises after the period for which they are let, or any extension thereof, or the Lessee shall fail to notify the Lessor of his intention to vacate these premises, it shall be considered as evidence that said Lessee has exercised its option to renew this Lease for a one year period. The Lessee agree [sic] to notify the Lessor in writing not less than sixty (60) days prior to the expiration of the period for which the premises are let, if it intends to vacate the premises. A letter from the Director, Department of Revenue, stating the said intent to vacate, sent by registered mail, return receipt requested, mailed to Alfred E. Long, 2319 Hampton Ave., St. Louis, Missouri 63139 [sic].
m
[T]his lease shall not be binding upon the Lessee unless and until general appropriations have been made by the Missouri Legislature for payment of rental on behalf of the Lessee for the fiscal period embracing the term of, renewal or extension of this Lease. (Emphasis added.)

Although the parties press conflicting views as to the meaning of the lease, curiously both contend that the language of the lease is not ambiguous, but instead argue that the lease is merely less than artfully drawn. This ignores the fact that the term “ambiguous” means a susceptibility to two or more meanings as well as a vagueness of meaning, First National Bank of Malden v. Farmers New World Life Ins. Co., 455 S.W.2d 517, 522 (Mo.App.1970); Tenney v. American Life & Accident Ins. Co., 338 S.W.2d 370 (Mo.App.1960), and clearly this lease is rife with patent ambiguities.

We find that the trial court was justified in concluding that the language of the lease permitted the Department, on timely notice given, to terminate the tenancy at the end of the initial six month term. This conclusion rests in part on the fact that paragraphs # 3 and # 4 each describe a separate term of lease. Paragraph # 3, by its express language, sets forth an “initial term” of six months, and the term provided in paragraph # 4 is described by the general expression, “yearly term.” Each period or term thus placed in separate paragraphs was accompanied by its corresponding schedule of rental payments. Other lease provisions comport with our interpretation of the lease.

Paragraph # 4 is a telling indication of the parties’ intentions as to the length of each term granted in the lease. It speaks of “the fiscal period embracing the term of, renewal or extension of this lease.” (Emphasis ours.) The fiscal period for Missouri, as provided by law, is July 1 to June 30 of the year following. § 33.110, RSMo 1969. The language of the lease ties each term to a fiscal year and by employing the phrase “embracing the term of,” necessarily contemplates terms, renewals or extensions not in excess of 12 months. The first or “initial term,” albeit for only the final six months of fiscal 1972-73, was linked to and embraced by the State’s fiscal period, July, 1972, through June, 1973. Stated otherwise, it appears the parties intended that the initial term of the lease and any renewal or extension thereof be confined within Missouri’s fiscal periods, and the obligation of the Department for the payment of rents be similarly restricted.

Moreover, while not necessary to our holding, it may reasonably be argued that this language reflects a concern for the provisions of art. IV, § 28 of the Missouri Constitution and of this Court’s decision in White v. Jones, 352 Mo. 354, 177 S.W.2d 603 (1944). There it was held that § 9265, RSMo 1939 (since repealed), forbade state eleemosynary institutions from entering into a lease for six years because the lease created a “debt” for which at the time no adequate appropriation existed. Consequently, the lease was void ab initio. The drafter of the lease at bar may have considered the relevant language of art. IV, § 28 sufficiently similar to the proscription of § 9265 to warrant inserting the provision concerning appropriations by the General Assembly during the state’s annual fiscal periods, but whatever the subjective consideration of the drafter, the “terms” or “periods” of the lease are treated independently and tied to separate fiscal years of the State.

Appellants, on the other hand, contend # 3 and # 4 should be read together as providing a single initial term of eighteen months. They point to the fact that the extent of the premises let is still being defined at the end of paragraph # 4 rather than at its proper place at the end of paragraph # 2 pertaining to the description of the premises. We do not attach such import to the apparent misplacement of the last sentence of paragraph # 4. It seems more a matter of afterthought or poor draftsmanship than a studied purpose to create an eighteen month initial term. Nor are we impressed by appellants’ suggestion that the separation of the claimed eighteen month period into two paragraphs more appropriately recognized that the Department’s obligation depended on legislative appropriations for each fiscal year than a single paragraph delineating eighteen months would have.

Appellants further contend that paragraphs # 3 and # 4 should be read together because paragraph # 5, dealing with option periods, fails to specify to what term the option periods are “successive.” If the initial term were for six months, they argue, the optional periods would be successive to that term, rendering paragraph # 4 superfluous. This argument fails because paragraph # 5 states that the renewal periods shall be “on the same rental terms and conditions herein.” The reference to the same rental terms can only point to the preceding paragraphs, where the amount of rent, the due date for payment, and the length of the rental are delineated. Paragraph # 5 speaks twice of “the period” for which the premises are let, although paragraph # 4 sets forth a “yearly term” and paragraph # 3 the “initial term” of the lease. It is significant that paragraph # 5 creates one year periods, as does paragraph # 4; paragraph # 5 thus refers back to paragraph # 4 rather than to # 3. To read the reference to “terms and conditions herein” in # 5 to include the amount of rent and the due date for each payment as described in # 4, but not the delineation of a yearly term, ignores the intent of the parties as manifested in-the instrument as a whole.

We recognize paragraph # 5 could be construed' to mean the first option period began following June 30, 1973, and that paragraph # 4 is, as respondent argues, an effort to set forth the precise terms of renewal; on the other hand, it could be that the first of the option periods was intended to commence following June 30, 1974. In either event, we find the “initial term” was for six months with a right to terminate on timely notice.

Appellants next point out that a ha-bendum clause, which they contend defines the extent of the interest or ownership in the premises granted, introduces each of paragraphs # 3 and # 4, setting forth the “initial” and “yearly” terms, and this, they contend, indicates an intention to create a single initial term of eighteen months. This argument would require the conclusion that the use of habendum clauses overcomes the other provisions of the lease which indicate an intention to create separate terms of six months and of one year. For the better part of a century our law has considered the intent of the parties as reflected in the whole instrument to be the “lode star of construction,” not the terms of the habendum or other individual clauses. “[A] deed creates the interest which the parties clearly intended it to create, without regard to purely formalistic practices, arbitrary distinctions and niceties derived from the feudal common law, . . . ” Kluck v. Metsger, 349 S.W.2d 919, 921 (Mo.1961). “The time has long since passed when the tenure of lands by deed . . . was dependent upon the technical meaning of words or construction of sentences in use among old English conveyances.” Long v. Tims, 107 Mo. 512, 17 S.W. 898, 900 (Mo.1891). The parties have cited no authority involving a lease with two habendum clauses nor has our research disclosed such a case. We cannot say that the lease, though less than artfully done, manifests an intent to create an initial term of eighteen months by the use of habendum clauses appearing in two separate paragraphs.

Each party suggests alternative wordings or interlineations by which the position of its opponent could have been made clear in the lease and argues that the absence of such wordings supports its own position. We find such speculation of little assistance. It applies equally to every ambiguous provision of the lease; on the whole, the inferences we could draw favor neither side.

We have been mindful, in our analysis, of the canons applicable to the construction of such instruments, especially that which instructs us to ascertain the intent of the parties from the instrument they have executed. Henry v. Excelsior Springs Mineral Water & Bottling Co., 277 Mo. 508, 211 S.W. 9, 10 (1919); Johnson v. Missouri-Kansas-Texas R. R., 216 S.W.2d 499 (Mo.1949). We have not had recourse to the maxim that a lease will be construed most strongly against the party that prepared it, Keith v. Tucker, 483 S.W.2d 430, 434 (Mo.App.1972), for we know not by whom or under whose aegis the lease was drafted. Nor have we utilized the adage that a lease will be construed favorably to the tenant, Amzi Realty & Building Co. v. Kelly, 49 S.W.2d 214 (Mo.App.1932), in this case involving the State as the tenant. Instead, for the reasons discussed earlier in this opinion, we find that the intent of the parties as reflected in the instrument they signed was to allow the Department of Revenue to vacate the premises after the initial six month term, upon sixty days prior notice. Because of our disposition of this issue we need not reach the constitutional questions raised by respondents. The judgment of the circuit court is affirmed.

MORGAN, C. J., BARDGETT, FINCH, DONNELLY and SEILER, JJ., and HOUSER, Special Judge, concur.

SIMEONE, J., not participating because not a member of the Court when the cause was submitted.

      . Plaintiffs are the successors and assigns of Alfred E. and Mary Long, the owners named in the lease. The Commissioner of Administration is the successor to the then State Purchasing Agent, who executed the lease with the Director of the Department of Revenue. See § 26.300, RSMo Supp. 1975.

      . The asterisk at the end of line five in paragraph # 4 refers to a footnote on that page which reads “*See Notation Page 3 hereof.” However, no such “notation” appears on page 3 of the lease and the footnote apparently refers to an item inadvertently omitted from the final draft.

      . Although the lease instrument appears to have been taken from a form contract with the blanks filled in, there is no evidence as to which of the parties, if either, prepared the instrument and completed the blanks.

      . The language in paragraph # 5 providing that notice to vacate be given not less than sixty days prior to the “expiration of the period for which the premises are let” applied to each term or period described in the third and fourth paragraphs as well as to the optional periods granted the lessee under paragraph # 5. It was under this provision that the Department gave its timely notice and vacated the premises in 1973.

      . Section 28 reads in full:
      No money shall be withdrawn from the state treasury except by warrant drawn in accordance with an appropriation made by law, nor shall any obligation for that payment of money be incurred unless the commissioner of administration certifies it for payment and certifies that the expenditure is within the purpose as directed by the general assembly of the appropriation and that there is in the appropriation an unencumbered balance sufficient to pay it. At the time of issuance each such certification shall be entered on the general accounting books as an encumbrance on the appropriation. No appropriation shall confer authority to incur an obligation after the termination of the fiscal period to which it relates, and every appropriation shall expire six months after the end of the period for which made.

      . Section 9265 provided in relevant part:
      If the curators, managers, trustees or other officers having control of any . . . eleemosynary . . . institutions . . . shall contract . . . any debt for which there shall not be at the time an adequate appropriation, every such . . . officer . shall be personally liable for such debt to the person with whom such is contracted, . . . and, in addition, shall, on conviction, be deemed guilty of a misdemeanor.


author: GUNN, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jameson P. HOLIDAY, Defendant-Appellant.
    No. 39602.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 5, 1978.
    Christelle Adelman-Adler, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   GUNN, Presiding Judge.

Defendant was convicted of stealing a 1966 Volkswagen. If the jury would believe the State’s primary witness — and it did — there was an abundance of evidence to support the conviction. Defendant’s appeal rests on his contention that the prosecutor’s comment in closing argument alluding to his professional capabilities as a car thief constituted reversible error; also, that it was error to have allowed in evidence certificates of title to two other motor vehicles which were found in defendant’s residence at the time of his arrest. We find no error and affirm.

Evidence of the theft of the Volkswagen came from a former suitemate of defendant. She testified that she and defendant had driven past an automobile body repair shop at the corner of Loughborough and Michigan Avenues in St. Louis. Defendant noted particularly a green 1966 Volkswagen on the lot and boasted to the State’s witness of the ease with which he could appropriate the car. A short time later the witness and defendant returned to the lot. The defendant, using a tool (a puncher) which he had taken from the witness’s car, entered the Volkswagen, started it and drove off. Subsequently, the witness observed the defendant as he deftly altered the appearance of the stolen Volkswagen by changing the serial numbers on the car with the use of an acetylene torch. The 1966 green Volkswagen was ultimately purchased by Dennis Wilde. The State showed that defendant, under an assumed name, had at some time purchased a totally wrecked 1966 Volkswagen and that the serial number from the wrecked Volkswagen was transferred by the defendant to the pilfered auto. At the time of defendant’s arrest, his premises were searched and a substantial number of automobile titles and title transfer applications were found and seized. Two of the titles seized and put into evidence by the State were for a 1962 GMC truck and a 1947 Willys. Each showed the title transferee to be Toni Underwood and the notary to be Raymond Bezdek. The significance of such evidence was that the title for the stolen Volkswagen which was sold to Dennis Wilde bore “Toni Underwood” as the title transferor and was notarized by Raymond Bezdek. The notary seal bearing the name “Raymond Bezdek” was recovered in defendant’s residence.

Dealing first with defendant’s complaint that the exhibits relating to titles of other motor vehicles should not have been admitted into evidence, we find no error by their admission. Defendant suggests that they were not relevant to the charge of stealing a green 1966 Volkswagen and improperly interjected evidence of other crimes into the case. We disagree. The evidence was at least relevant to establish intent, absence of mistake or accident and a common plan for conducting an auto theft enterprise and was therefor admissible. State v. Boley, 565 S.W.2d 828 (Mo.App.1978).

Nor do we find merit in defendant’s position that the prosecutor’s two brief references to him as a “professional auto thief” afford ground for reversal. Our attention is immediately directed to two cases where the defendant was referred to as a professional auto thief. In State v. Stockbridge, 549 S.W.2d 648 (Mo.App.1977), the prosecutor’s constant and lengthy references to defendant as a professional car thief were held basis for a reversal and remand. But in Stockbridge, the defendant was charged with feloniously assaulting a police officer — not auto theft — and the references to his being a car thief were grossly fulsome. We do not find Stockbridge felicitous to defendant’s position here.

Directly in point is State v. Nichelson, 546 S.W.2d 589 (Mo.App.1977), where the defendant, on trial for auto theft was referred to by the prosecutor as “a professional car thief.” In holding that no prejudicial error occurred by such reference, it was noted that such comment was within the confines of the evidence, in that the defendant possessed and used the requisite tools for stealing cars. So, too, in this case, did the defendant operate in a “professional manner,” in that he possessed and utilized the tools of the trade — a puncher to gain access to and steal the car, requisite title forms, a notary seal for title transfer and torches and equipment for altering the car’s appearance and changing its serial numbers. State v. Nichelson, supra, is precisely in point.

Judgment affirmed.

KELLY and REINHARD, JJ., concur.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Jeremiah FLENOID, Appellant.
    No. 38083.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 19, 1978.

      Samuel Raban, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Chief Counsel, Asst. Atty. Gen., Ann K. Covington, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Defendant Jeremiah Flenoid has appealed his conviction for illegally selling a Schedule I Controlled Substance and a prior felony conviction. The trial court sentenced him to imprisonment for six years.

Defendant now contends the trial court erred in prohibiting him from examining a police record, entering it into evidence, and referring to it in his opening statement. He also contends error in overruling objections to the introduction of laboratory tests and grand jury notes on the ground the state failed to comply with discovery Rule 25.32, YAMR. We deny both contentions.

The state’s evidence showed police officer Charles Cobb was sent to defendant’s apartment by his superiors to buy narcotics from defendant. There, Cobb asked for “Jerry, and said he wanted to buy some ‘jive.’ ” Defendant told Cobb he had acid but no “jive.” Cobb passed a five-dollar bill to defendant, who handed out a piece of paper with two blots on it. A police technician identified the substance as d-lysergic acid diethylamide (LSD).

The defense was alibi, and defendant claimed he was “framed” by the police in retaliation for having made a complaint against a police officer in 1973. The police record in question contained the results of an investigation of defendant’s complaint, but testimony at trial showed none of those police officers were involved in the present charge against defendant.

The determination of evidentiary materiality and relevancy is primarily within the trial court’s discretion. State v. Proctor, 546 S.W.2d 544[2-5] (Mo.App.1977). Here, the court properly exercised its discretion because the police record was irrelevant to the issue of whether defendant made the sale of LSD (State v. Nettis, 78 R.I. 489, 82 A.2d 852[1] (1951)), particularly so because the police officers connected with defendant’s arrest and trial did not participate in the previous incident. Rush v. State, 137 Ga.App. 387, 224 S.E.2d 39[3] (1976). We deny defendant’s first point.

State v. Helms, 559 S.W.2d 587 (Mo.App.1977) controls defendant’s contention the court erred in the introduction of laboratory reports which were not furnished in accordance with discovery rules. The Helms court noted that despite the state’s admission it had not complied with discovery rules, the real issue was the propriety of the court’s refusal to apply the sanction of exclusion. Rule 25.45, YAMR, does not provide failure to comply with a discovery rule requires automatic exclusion. Rather, in the event of such failure, the rule declares the court in its discretion may “. . . order such party to make disclosure of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other orders as it deems just under the circumstances.” Exclusion is mandated only if earlier production of the reports would likely have effected the result. Helms, supra, at [1-4].

Here, the formal reports were made available to defendant when first completed, the morning of trial. Long before trial defense counsel had seen the police report containing the name of the chemist and the results of the tests. He refused the trial court’s offer of time to examine the laboratory report.

The issue is whether there was an opportunity to examine the undisclosed evidence and make a record that additional time was needed or that the delay precluded rebuttal. Helms, supra, at [1 — 4]. Here, defendant asserted neither ground and has presented to us no basis for finding ^earlier disclosure would have permitted him to have countered the evidence. We find no abuse of the court’s discretion.

Defendant’s contention regarding grand jury testimony and notes is without merit. Such allegations of error must be based upon objections made at trial; these were not.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.